CRUZ v. HOLLINGSWORTH
Filing
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OPINION. Signed by Judge Robert B. Kugler on 1/5/2014. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
DERRICK CRUZ,
:
:
Petitioner,
:
:
v.
:
:
JORDAN HOLLINGSWORTH,
:
:
Respondents.
:
_________________________________________ :
Civ. No. 13-2495 (RBK)
OPINION
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Petitioner is currently incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey. He is
proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The
thrust of petitioner’s habeas petition is that his federal sentence should run concurrently to his
state sentence. For the following reasons, the habeas petition will be transferred to the United
States District Court for the Southern District of New York.
II.
BACKGROUND
Petitioner filed a petition for writ of habeas corpus in the United States District Court for
the Southern District of New York in July, 2010. 1 (See S.D.N.Y. No. 10-5460.) In that petition,
petitioner challenges the denial by the Federal Bureau of Prisons (“BOP”) of his request for a
nunc pro tunc designation so that his state and federal sentences can run concurrently. (See
S.D.N.Y. No. 10-5460 Dkt. No. 17 at p. 1.) A Magistrate Judge recommended that that habeas
petition be dismissed on March, 22, 2013. (See id. at p. 31.) However, a final ruling on that
1
The petitioner in the Southern District of New York action is named David Cruz. However,
documents indicate that petitioner uses both David and Derrick Cruz. (See Dkt. No. 1-2 at p. 3638.)
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habeas petition has not been entered by the Southern District of New York. Thus, that habeas
petition remains pending.
After the Magistrate Judge in the Southern District of New York recommended that the
habeas petition be dismissed, petitioner filed the instant § 2241 habeas petition in this Court in
April, 2013. Similar to petitioner’s habeas petition filed in the Southern District of New York,
he makes several arguments in this habeas petition that his state and federal sentences should run
concurrently.
Respondent claims that this Court should dismiss the habeas petition filed in this Court as
second or successive pursuant to 28 U.S.C. § 2244. Alternatively, respondent argues that this
Court should stay this matter until the pending litigation in the Southern District of New York is
resolved.
III.
ANALYSIS
Section 2244(a) of Title 28 of the United States Code states that:
No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the detention
of a person pursuant to a judgment of a court of the United States if
it appears that the legality of such detention has been determined
by a judge or court of the United States on a prior application for a
writ of habeas corpus, except as provided in section 2255.
28 U.S.C. § 2244(a). The Third Circuit has held that this provision applies to petitions brought
pursuant to 28 U.S.C. § 2241. See Henderson v. Bledsoe, 396 F. App’x 906, 907 (3d Cir. 2010)
(per curiam) (citing Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008)). In Henderson, the Third
Circuit found that the District Court had properly dismissed the petitioner’s § 2241 petition
because he raised the same issues decided in his previous habeas petition. See id. at 908. `
Respondent cites to Henderson and argues that this Court should also dismiss the habeas
petition in this case because petitioner raises identical issues that are subject to the pending
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litigation in the Southern District of New York. In Grullon v. Ashcroft, 374 F.3d 137, 140 (2d
Cir. 2004), the Second Circuit held that a second § 2241 habeas petition that is filed when a
petitioner has a pending § 2241 petition should be construed as a motion to amend the first §
2241 petition. See also Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008) (finding that district
court should have construed pro se habeas petition as a motion to amend pending habeas
petition); Motley v. Rapelje, No. 10-13132, 2011 WL 4905610, at *1 (E.D. Mich. Oct. 13, 2011)
(“If a pro se habeas corpus petition is filed while an earlier petition is still pending in the district
court, the district court must construe the second petition as a motion to amend the first
petition.”) (citations omitted). In this case, as described above, petitioner’s first § 2241 habeas
petition that challenges whether his convictions should run concurrently has not been decided by
the Southern District of New York. See Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002)
(“[F]or a petition to be second or successive within the meaning of the statute, it must at a
minimum be filed subsequent to the conclusion of a proceeding that counts as the first. A
petition that has reached final decision counts for this purpose.”) (internal quotation marks and
citations omitted) (emphasis in original). Accordingly, the habeas petition that petitioner has
filed in this Court is construed as a motion to amend his pending habeas petition filed in the
Southern District of New York. Therefore, the Court will transfer the habeas petition to the
Southern District of New York so that it can be docketed as a motion to amend that pending
habeas petition.
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IV.
CONCLUSION
For the foregoing reasons, the habeas petition shall be transferred to the Southern District
of New York. An appropriate order will be entered.
DATED: January 5, 2014
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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