GALLARZA v. FEDERAL BUREAU OF PRISONS et al

Filing 11

OPINION. Signed by Judge Noel L. Hillman on 12/8/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
FEDERAL BUREAU OF PRISONS, et al., :
:
Respondents.
:
___________________________________:
EDWARD GALLARZA,

Civ. No. 12-7740 (NLH)
OPINION

APPEARANCES:
Edward Gallarza, # 09426-084
Federal Prison Camp
P.O. Box 1000
Cumberland, MD 21501
Petitioner Pro se
John Andrew Ruymann
Office of the United States Attorney
402 East State St.
Suite 430
Trenton, NJ 08608
Counsel for Respondent

HILLMAN, District Judge
On or about December 21, 2012, Petitioner Edward Gallarza,
a prisoner formerly confined at the Federal Prison Camp in
Cumberland, Maryland filed this writ of habeas corpus under 28
U.S.C. § 2241, challenging the calculation of his sentence. (ECF
No. 1).

Petitioner paid the filing fee and, on May 16, 2013, he

filed an Amended Petition. (ECF No. 3).

On March 6, 2014, the

Court ordered an Answer from Respondent. (ECF No. 4).

On April

7, 2014, Respondents filed their Answer. (ECF No. 8).
Petitioner did not file a Traverse or otherwise respond to
Respondents’ Answer.

This matter is now fully briefed.

For the

reasons that follow, the Petition will be DENIED.
I.

BACKGROUND

Petitioner was arrested in New York by state authorities
for possession with intent to distribute stimulants on July 12,
2000.

On May 14, 2002, Petitioner was sentenced in the New York

County Superior Court to one to three years’ imprisonment for
Possession with Intent to Distribute Stimulants. (Decl. of J.R.
Johnson 7-8, Attach. 1, Sentence and Commitment, ECF No. 8-1).
On June 25, 2002, Petitioner was temporarily transferred
from the New York Department of Corrections to the U.S. Marshals
Service pursuant to a writ of habeas corpus ad prosequendum.

On

August 19, 2002, a jury found Petitioner guilty of Conspiracy to
Possess with Intent to Distribute Crack Cocaine in federal
court. See United States v. Gallarza, No. 01-cr-30058-4 (W.D.
Va. Aug. 19, 2002), ECF No. 161.

On January 28, 2003,

Petitioner was sentenced in the United States District Court for
the Western District of Virginia to 324 months’ imprisonment.
United States v. Gallarza, No. 01-cr-30058-4 (W.D. Va. Jan. 29,
2003), ECF No. 164.
Petitioner was paroled from his state sentence on July 31,
2003 and commenced service of his 324-month federal sentence on
2

that date.

However, since the initial federal sentencing order,

Petitioner’s sentence has been reduced three times.

First, on

April 7, 2008, the sentencing court issued an order reducing
Petitioner’s federal sentence from 324 months to 262 months’
imprisonment based on new sentencing guidelines for offenses
involving cocaine base. United States v. Gallarza, No. 01-cr30058-4 (W.D. Va. Apr. 8, 2008), ECF No. 365.

Then, on October

6, 2011, the sentencing court issued an order reducing
Petitioner’s sentence from 262 months to 188 months’
imprisonment in accordance with another change in the sentencing
guidelines. United States v. Gallarza, No. 01-cr-30058-4 (W.D.
Va. Oct. 6, 2011), ECF No. 467.

Most recently, on June 16,

2015, the sentencing court further reduced Petitioner’s sentence
from 188 months to 168 months. United States v. Gallarza, No.
01-cr-30058-4 (W.D. Va. June 16, 2015), ECF No. 513.

Pursuant

to the Bureau of Prison’s website, Petitioner is scheduled to be
released on December 17, 2015. See
http://www.bop.gov/inmateloc/.
In his Petition, Petitioner asserts that he is entitled to
an additional 13 months’ credit toward his federal sentence due
to the Bureau of Prisons’ (“BOP”) use of an improper
commencement date.

In support of this assertion, Petitioner

cites to a notice filed by the sentencing court which informed
the parties of a retroactive amendment to the federal sentencing
3

guidelines. See United States v. Gallarza, No. 01-cr-30058-4
(W.D. Va. Aug. 16, 2011), ECF No. 459.

Specifically, the

sentencing court stated in this notice, “Gallarza has already
served approximately 110 months.” Id.

Using this reference to

110 months of service, Petitioner concludes that his federal
sentence commenced on June 26, 2002, the date on which “the U.S.
Marshall [sic] Service picked Petitioner up from where he was
serving his state sentence and brought him to face his federal
charges.” (Am. Pet. 11, ECF No. 3).

Petitioner further states

that “[t]here is clearly a disparity of 13 months from [the
sentencing judge’s] findings to the BOP’s calculation [of
Petitioner’s sentence].” (Id. at 12).

Petitioner asks that this

Court determine that his federal sentence commenced on June 26,
2002.
Respondents explain that the sentencing court’s statement
that Petitioner had served 110 months was “an inconsequential
misstatement.” (Resp’t’s Br. 5, ECF No. 8).

Respondents further

state that Petitioner’s sentence properly commenced on July 31,
2003. 1

1

Respondents explain that Petitioner Edward Gallarza is also
known as “Hector Ortiz.” (Resp’ts’ Br. 2, ECF No. 8); (Decl. of
J.R. Johnson 1, ECF No. 8-1). Indeed, the New York State
documents submitted by Respondents bear the name “Hector Ortiz”
and only a handwritten notation of “Edward Gallarza.” (Decl. of
J.R. Johnson 7-8, Attach. 1, Sentence and Commitment, ECF No. 81); (Id. at 22, Attach. 4, New York State (“NYS”) Department of
Correctional Services (“DOCS”) Inmate Information, ECF No. 8-1).
4

II.

STANDARD OF REVIEW

United States Code Title 28, Section 2243, provides in
relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers. Estelle v. Gamble, 429
U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
Nevertheless, a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition that
the petitioner is not entitled to relief. See Denny v. Schult,

However, the printout from the United States Marshals (“USM”)
Service Prisoner Tracking System clarifies that “Edward
Gallarza” — the name that is used in the records of the United
States District Court for the Western District of Virginia — is
a known alias of “Hector Ortiz.” (Id. at 10-12, Attach. 2).
Moreover, the identification numbers listed in the USM documents
— 02-R-2716 and 7827214M — correspond with the identification
numbers associated with the New York State court action for
Hector Ortiz; and the FBI number on the USM forms — 153769EB3 —
corresponds with the FBI number listed on the BOP’s records for
Edward Gallarza, see (Id. at 26, Attach. 5). Finally, the Court
notes that Petitioner does not dispute Respondents’ assertion
that Petitioner Edward Gallarza was prosecuted in New York State
under the alias Hector Ortiz.
5

708 F.3d 140, 148 n.3 (3d Cir. 2013); See also 28 U.S.C. §§
2243, 2255.
III. DISCUSSION
A. Jurisdiction
Habeas corpus is an appropriate mechanism for a federal
prisoner to challenge the execution of his sentence. See Coady
v. Vaughn, 251 F.3d 480, 485–86 (3d Cir. 2001); Barden v.
Keohane, 921 F.2d 476, 478–79 (3d Cir. 1990).

Additionally,

“[f]ederal prisoners are ordinarily required to exhaust their
administrative remedies before petitioning for a writ of habeas
corpus pursuant to § 2241.” Moscato v. Fed. Bureau of Prisons,
98 F.3d 757, 760 (3d Cir. 1996).
In this case, Petitioner files this habeas petition
challenging the BOP’s execution of his federal sentence.
Respondents concede that Petitioner has exhausted his
administrative remedies.

Accordingly, this Court has

jurisdiction over the instant habeas petition pursuant to 28
U.S.C. § 2241. See Woodall v. Fed. Bureau of Prisons, 432 F.3d
235, 242 (3d Cir. 2005).
B. Analysis
The Attorney General is responsible for computing federal
sentences for all offenses committed on or after November 1,
1987, see United States v. Wilson, 503 U.S. 329 (1992) and 18

6

U.S.C. § 3585, and the Attorney General has delegated that
authority to the BOP, see 28 C.F.R. § 0.96 (1992).
Computation of a federal sentence is governed by 18 U.S.C.
§ 3585, and is comprised of a two-step determination.

First,

the BOP determines the date on which the federal sentence
commences and, second, the BOP determines the extent to which
credit is awardable for time spent in custody prior to
commencement of the sentence.
(a) Commencement of sentence. — A sentence to a term
of imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or
arrives voluntarily to commence service of sentence
at, the official detention facility at which the
sentence is to be served.
(b) Credit for prior custody. — A defendant shall be
given credit toward the service of a term of
imprisonment for any time he has spent in official
detention prior to the date the sentence commences —
(1) as a result of the offense for which the
sentence was imposed; or
(2) as a result of any other charge for which the
defendant was arrested after the commission of the
offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585(a), (b).
In this case, Petitioner challenges only the commencement
date of his federal sentence. See (Am. Pet. 2, ECF No. 3) (“I am
challenging the date the court intended my sentence to begin.”).
Specifically, he asserts that his federal sentence should have
commenced on June 26, 2002 because that is “the date which the
7

U.S. Marshall [sic] Service picked up Petitioner from where he
was serving his state sentence and brought him to face his
federal charges” (Am. Pet. 11, ECF No. 3), and because the
sentencing judge made a “finding” that, as of August 16, 2011,
Petitioner had served 110 months 2 (Id. at 11-12).
As an initial matter, the reference to “110 months” cited
by Petitioner does not represent a finding by the sentencing
court.

This language does not appear in the holding of a court

order and, instead, is dicta in a notice to the parties
regarding a possible reduction in Petitioner’s sentence due to a
change in the federal sentencing guidelines.

Further, as

explained above, the BOP — and not the sentencing court — is
responsible for computing federal sentences. See 28 C.F.R. §
0.96 (1992).

Thus, the sentencing court’s reference to 110

months in a notice to parties does not carry any authoritative
weight and has no bearing on the BOP’s determination regarding
the commencement date of Petitioner’s federal sentence.
Moreover, the record in this case shows that Petitioner
entered state custody on June 3, 2002. See (Decl. of J.R.
Johnson 22, Attach. 4, New York State (“NYS”) Department of
Correctional Services (“DOCS”) Inmate Information, ECF No. 8-1);

2

Using the 110 months referenced in the sentencing court’s
order, and working backwards from the date the order was issued,
Petitioner concludes that his federal sentence must have
commenced on June 26, 2002.
8

see also George v. Longley, 463 F. App'x 136, 138 n.4 (3d Cir.
2012) (collecting cases) (explaining that custody is usually
determined on a first-exercised basis).
The record further indicates that — aside from an
appearance in federal court on a writ of habeas corpus ad
prosequendum — Petitioner remained in state custody from June 3,
2002 to the time he was paroled from state custody on July 31,
2003. See (Decl. of J.R. Johnson 22, Attach. 4, NYS DOCS Inmate
Information, ECF No. 8-1); Williams v. Zickefoose, 504 F. App'x
105, 107 n.1 (3d Cir. 2012) (citations omitted) (holding that “a
prisoner detained pursuant to a writ of habeas corpus ad
prosequendum remains in the primary custody of the first
jurisdiction ... ‘unless and until the first sovereign
relinquishes jurisdiction over the prisoner.’”).
The Court notes that the docket in Petitioner’s underlying
criminal case reflects that Petitioner was produced on a writ of
habeas corpus ad testificandum. See United States v. Gallarza,
No. 01-cr-30058-4 (W.D. Va. June 7, 2002), ECF No. 138.
However, Respondents’ brief and supporting documentation
indicate that Petitioner was produced via a writ of habeas
corpus ad prosequendum. (Resp’ts’ Br. 8-9, ECF No. 8); (Decl. of
J.R. Johnson 11, Attach. 2, United States Marshals Service
Prison Tracking System, ECF No. 8-1).

Regardless of the precise

writ under which Petitioner was produced in federal court, the
9

state did not relinquish custody. See Garland v. Sullivan, 737
F.2d 1283, 1288-89 (3d Cir. 1984) aff'd sub nom. Pennsylvania
Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 106 S.
Ct. 355, 88 L. Ed. 2d 189 (1985) (“A prisoner produced in
response to a writ of habeas corpus ad testificandum is still in
custody and the court or commissioner issuing the writ has no
power . . . to take him from the custody of one officer and put
him in another.”).
Petitioner has provided no evidence which supports his
assertion that the commencement date of his federal sentence
should have been June 26, 2002.

Accordingly, there is nothing

before the Court to suggest that the BOP’s determination that
Petitioner commenced service of his federal sentence on the day
he was paroled from his state sentence — July 31, 2003 — was
improper or an abuse of discretion. See Barden v. Keohane, 921
F.2d 476, 478 (3d Cir. 1990) (decision of the BOP is subject to
judicial review only for abuse of discretion); see also, e.g.,
Perry v. Warden Fort Dix FCI, 609 F. App'x 725, 727 (3d Cir.
2015) (citing 18 U.S.C. § 3585(a)); Perry v. Warden Fort DIX
FCI, 609 F. App'x 725, 727 (3d Cir. 2015). 3

3

Petitioner does not challenge the BOP’s calculation of his
sentence credit; nor does he allege that his state and federal
sentences should have run concurrently. Nevertheless, the Court
offers the following brief analysis.
With respect to sentence credit, the record shows that
Petitioner’s federal sentence was credited 1 day, representing a
10

IV.

CONCLUSION

For the foregoing reasons, the Petition is denied.
An appropriate Order will be entered.

____s/ Noel L. Hillman____
NOEL L. HILLMAN
United States District Judge
Dated: December 8, 2015
Camden, New Jersey

day Petitioner spent in state custody that was not credited
toward his state sentence. See (Decl. of J.R. Johnson 8, Attach.
1, Jail Time Certification, ECF No. 8-1); (Decl. of J.R. Johnson
8, Attach. 5, Sentence Monitoring Computation Data, ECF No. 81). Also, the record indicates that the remainder of the time
Petitioner spent in state custody — two days in July 2000 after
his initial arrest and 106 days since his second arrest in
February 2002 — was applied toward his state sentence. See
(Decl. of J.R. Johnson 8, Attach. 1, Jail Time Certification,
ECF No. 8-1). Because the time Petitioner spent in custody
prior to July 31, 2003 was already credited against his state
sentence, Petitioner is precluded by statute from receiving
credit for this time against his federal sentence. 18 U.S.C. §
3585 (b); see also Wilson, 503 U.S. at 337.
Additionally, the federal sentencing court did not specify
whether the federal sentence was to run consecutive or
concurrent to the state sentence. (Decl. of J.R. Johnson 14-20,
Attach. 3, Criminal Judgment, ECF No. 8-1). Therefore, the
default presumption is that Petitioner’s sentences should run
consecutively. See 18 U.S.C. § 3584(a) (“Multiple terms of
imprisonment imposed at different times run consecutively unless
the court orders that the terms are to run concurrently.”);
George v. Longley, 463 F. App'x 136, 141 (3d Cir. 2012) (holding
that if a federal sentencing court is silent as to whether a
federal sentence is to be consecutive or concurrent to a state
sentence, the BOP presumes that they are to be served
consecutively).
11