MATHIES v. FEDERAL BUREAU OF PRISONS

Filing 11

MEMORANDUM AND ORDER. ORDERED that, within 30 days after the date of entry of this Order, Respondent shall file an answer to said Petition, etc.; ORDERED that Petitioner may file and serve a reply in support of the Petition within 15 days after the answer is filed, etc. Signed by Judge Renee Marie Bumb on 6/12/2015. (dmr)(n.m.)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

LAWRENCE MATHIES
Petitioner,
v.
FEDERAL BUREAU OF PRISONS,
Respondent.

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Civil Action No. 12-6838(RMB)

MEMORANDUM AND ORDER

BUMB, District Judge
This matter is before the Court upon Petitioner’s
submission of a statement of facts in support of his petition
under 28 U.S.C. § 2241 (Petition, ECF No. 1), in response to
this Court’s Opinion and Order of December 11, 2014, dismissing
the petition. (ECF Nos. 6, 7.) The Court retained jurisdiction
over this matter to allow Petitioner to submit a written
statement detailing facts1 which led him to believe the federal
sentencing court amended his judgment of conviction by directing
retroactive concurrence in accordance with § 5G1.3(b) rather
than directing prospective concurrence in accordance with §

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The Court explained that only oral or written statements by the
federal sentencing court constituted relevant facts. See Order
(ECF No. 6 at 13, n. 4.)

5G1.3(c), as it appeared from the incomplete record that was
before the Court.
Petitioner submitted his sentencing transcript from the
U.S. District Court, Southern District of New York, dated July
22, 1998. (“Sentencing Transcript”, ECF No. 9 at 3-16.) At
sentencing, Petitioner’s counsel, Ms. London, raised the issue
of a letter she wrote to the Court on May 18, 1998. (Id. at 6,
lines 17-25; and at 7, lines 1-5.) Ms. London’s May 18, 1998
letter is not in the record presently before this Court.
At the sentencing hearing, the prosecutor, Mr. Broderick,
admitted that the government did not respond to Ms. London’s
letter, but he stated that with regard to the factual statements
in the letter, “we have no reason to dispute that Mr. Mathies
received the drugs that were sold and which ended up resulting
in his state conviction, that he received them from Mr.
Beniquez’s organization.” (Id. at 7, lines 9-18.) These facts
could be construed to suggest that Ms. London requested a
retroactive concurrent sentence under § 5G1.3(b), by arguing
that Petitioner’s state and federal crimes were related because
the activities that led to his convictions were related to his
association with the Beniquez Narcotics Organization, selling
drugs and committing a murder for hire of a rival drug dealer.
The sentencing court asked Ms. London, “So what you are
asking is that I make the serving of time on count 1 concurrent
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with his state court sentence?” (Id. at 9, lines 16-18.) Then,
the following colloquy occurred.
MS. LONDON: Yes, your Honor. Mr. Mathies
started his state sentence in, on April 18
of 1995. He came into federal custody on
November the third of 1995. If the federal
sentence is not made concurrent with the
state sentence, all of this time that he’s
actually been in federal custody will not be
counted towards his federal sentence.
THE COURT: No, but what I’m asking is: If
I make his sentence on count 1, which I’m
distinguishing because count 2 is a
consecutive sentence, but if I make his
sentence on count 1 where he has a 36-month
term of imprisonment concurrent with his
state court sentence, will that satisfy what
you’re asking for?
MS. LONDON: It will go a long way, your
Honor. Yes, it will.
THE COURT:

What else do you want?

MS. LONDON: I would also - - in that as I
see it his state court sentence will run for
approximately four and a half years, if the
Court makes the count 1 sentence concurrent,
then he will not have to do the - - three of
the years that he’s actually spent in
custody now will count federally. He may
still have an extra one year to do on the
state sentence whereby he doesn’t get
federal credit.
THE COURT: Well, you see, it’s a little
difficult because he’s got 20 years on count
2.
MS. LONDON:

Yes, your Honor.

THE COURT: But they’re consecutive.
Logistically, Ms. London, I’m not sure. If I

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made part of count 2 run as well, would that
solve the problem?
MS. LONDON:

Yes, your Honor.

THE COURT: I’m not exactly sure how one
does that. I can make the sentences
consecutive to each other but concurrent
with his state court sentence.
MS. LONDON: Yes, your Honor. That’s what I
am asking the Court to do.
THE COURT:
position?

Mr. Broderick, are you taking a

MR. BRODERICK: That’s correct, your Honor.
Based upon at least the policy sentence, it
appears you can make, in other words the 20year sentence partially concurrent to his
state sentence, but the government takes no
position.
(Id. at 9, lines 19-25, at 10, lines 1-25, and at 11, lines 19.)
When sentencing Petitioner, the sentencing court stated:
The defendant is before this Court for
sentencing in his role as a hired gun for
the Beniquez narcotics enterprise in the
Bronx in October of 1994. He agreed to kill
and in fact killed a rival drug dealer for
the Beniquez organization and was paid for
this murder. His sentence is mandated by the
dictates of the Sentencing Guidelines as
constrained by the statutory maximum
sentences for the crimes to which he has
pled, and is appropriate for his crimes
against society.
It is the judgment and sentence of this
Court that the defendant, Lawrence Mathies,
be and hereby is sentenced on count 1 to
imprisonment for a term of 36 months and, on
count 2, to a consecutive term of
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imprisonment of 240 months, for a total of
276 months’ imprisonment. This federal
sentence is to run concurrent to the state
sentence he is now serving. . . .
I am making sentence concurrent to the state
court sentence pursuant to 5G1.3.
. . .
(Id. at 12, lines 11-2; at 13, line 1 and lines 6-7.)
Based on the totality of the sentencing transcript,
Petitioner has set forth sufficient factual allegations to
proceed past screening on his 2241 petition.
IT IS, THEREFORE, on this 12th day of June 2015
ORDERED that, in accordance with Rule 4 of the Rules
Governing Section 2254 Cases, applicable to § 2241 cases through
Rule 1(b), this Court has examined the Petition and Petitioner’s
supplemental written statement (ECF No. 9); and it is further
ORDERED that the Clerk of the Court shall serve copies of
the Petition (ECF No. 1) and this Memorandum and Order upon
Respondent by regular mail, with all costs of service advanced
by the United States; and it is further
ORDERED that the Clerk of the Court shall forward a copy of
the Petition, along with this Memorandum and Order, to Chief,
Civil Division, United States Attorney’s Office, at the
following email address:

[e-mail]; and it is

further

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ORDERED that, within 30 days after the date of entry of
this Order, Respondent shall electronically file an answer to
said Petition, addressing each and every claim for relief, and
it is further
ORDERED that Petitioner may file and serve a reply in
support of the Petition within 15 days after the answer is
filed; and it is further
ORDERED that the Clerk of the Court shall serve this
Memorandum and Order on Petitioner by regular U.S. mail to:
Lawrence Mathies 38062-054, Federal Correctional Institution,
33 ½ Pembroke Road, Danbury, CT 06811-3099.

s/Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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