HERNANDEZ-RIVERA v. HOLLINGSWORTH
Filing
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OPINION FILED. Signed by Judge Noel L. Hillman on 9/14/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
OMAR R. HERNANDEZ-RIVERA,
Petitioner,
v.
J. HOLLINGSWORTH,
Respondent.
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Hon. Noel L. Hillman
Civil No. 16-0551 (NLH)
OPINION
APPEARANCES:
OMAR R. HERNANDEZ-RIVERA, #33160-069
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro Se
DAVID VINCENT BOBER, ASSISTANT UNITED STATES ATTORNEY
PAUL J. FISHMAN, UNITED STATES ATTORNEY
402 East State Street - Suite 430
Trenton, New Jersey 08608
Attorney for Respondent
HILLMAN, District Judge:
Omar R. Hernandez-Rivera filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the
calculation of his projected release date by the Bureau of
Prisons (“BOP”).
The BOP filed an Answer, together with two
declarations and several exhibits.
After reviewing the
arguments of the parties, the Court finds that the BOP did not
abuse its discretion and will dismiss the Petition.
I.
BACKGROUND
Local authorities in Puerto Rico arrested Petitioner on
August 4, 2008.
On August 21, 2008, a judge of the Commonwealth
of Puerto Rico sentenced him to 12 months in prison for a
juvenile parole violation.
On September 29, 2008, a U.S.
Magistrate Judge in the United States District Court for the
District of Puerto Rico issued a writ of habeas corpus ad
prosequendum directing the United States Marshal to take custody
of Petitioner for judicial proceedings in United States v.
Hernandez-Rivera, Crim. No. 08-330-GAG-35 (D.P.R. filed Sept.
26, 2008).1
Pursuant to this writ of habeas corpus ad
prosequendum, Petitioner made his initial appearance before a
United States Magistrate Judge in the District of Puerto Rico on
October 1, 2008.
It appears as if Petitioner thereafter
remained in the physical custody of the Marshal pursuant to the
writ of habeas corpus ad prosequendum, appearing before the
District Court on numerous occasions.
More specifically, on
The six-count indictment charged Petitioner and 39 others with
conspiracy to distribute crack and related offenses.
1
2
August 10, 2009, Petitioner pled guilty pursuant to a plea
agreement to conspiracy to possess with the intent to distribute
between 150 and 500 grams of cocaine base within a protected
location, possession of firearms during and in relation to a
drug trafficking crime, and narcotics forfeiture.
On November
16, 2009, U.S. District Judge Gustavo A. Gelpi sentenced him to
120 months in prison “as to counts one and five to be served
concurrently with each other,” and 10 years of supervised
release. (ECF No. 11 at 16.)
The judgment was entered on
November 16, 2009.2
On May 24, 2015, Petitioner filed an administrative remedy
request with the Warden of FCI Fort Dix challenging the failure
to give him credit against his federal sentence from the date of
his federal arrest on September 26, 2008.3
Petitioner also
claimed that he completed serving his Commonwealth sentence on
Although Petitioner did not appeal, he filed a motion to
vacate, pursuant to 28 U.S.C. § 2255, in the sentencing court on
or about November 22, 2010. See Hernandez-Rivera v. United
States, Civ. No. 10-2134 (GAG) (D.P.R. filed Nov. 22, 2010).
Judgment was entered against Petitioner on December 17, 2012,
and Petitioner did not appeal.
2
The docket in the criminal case shows that a U.S. Magistrate
Judge issued a warrant for Petitioner’s arrest on September 26,
2008, the date on which the indictment was filed. See United
States v. Hernandez-Rivera, Crim. No. 08-0330-GAG-35 (D.P.R.
Sept. 26, 2008).
3
3
August 4, 2009, rather than August 20, 2009.
Warden
Hollingsworth denied administrative relief on June 22, 2015, but
forwarded the documentation Petitioner had provided concerning
the expiration of his Commonwealth sentence to the Designation
and Sentence Computation Center for further evaluation.
(ECF
No. 9-2 at 10.)
Petitioner appealed to the Regional Director who granted
relief to the extent of forwarding the request for prior custody
credit to the Designation and Sentence Computation Center for
review and determination as to whether he should be given
additional prior custody credit based on the alleged expiration
of the Commonwealth sentence on August 4, 2009.
12.)
(ECF No. 9-2 at
Petitioner timely appealed to the Central Office.
On November 2, 2015, Ian Connors, Administrator, National
Inmate Appeals, issued a final decision on Petitioner’s
administrative appeal.
(ECF No. 9-2 at 14-16.)
Connors found
that Petitioner was arrested on August 4, 2008, by law
enforcement authorities from the Commonwealth of Puerto Rico; on
August 21, 2008, the Puerto Rico Court sentenced him to 12
months in prison for a juvenile parole revocation; on September
30, 2008, the U.S. Marshal took physical custody of Petitioner
pursuant to a writ of habeas corpus ad prosequendum; Petitioner
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completed service of his Commonwealth sentence on August 4,
2009; and on November 16, 2009, the U.S. District Court for the
District of Puerto Rico imposed a 120-month term of
imprisonment.
The BOP determined that Petitioner’s sentence
commenced on November 16, 2009 (the date of imposition) and that
he was entitled to prior custody credit from August 5, 2009 (the
day after the Commonwealth sentence expired), through November
15, 2009 (the day before the federal sentence commenced).
The final decision of the BOP granted Petitioner additional
prior custody credit for the 16 days from August 5, 2009 through
August 21, 2009, but did not give Petitioner prior custody
credit for the period from August 4, 2008 (Commonwealth arrest
date) through August 4, 2009, because this time was credited to
his Commonwealth sentence and 18 U.S.C. § 3585(b) prohibits
prior custody credit for time counted against another sentence.
The BOP denied Petitioner’s request for a nunc pro tunc
designation because the Commonwealth sentence expired prior to
imposition of the federal sentence.
Finally, the BOP denied
Petitioner’s request for additional good conduct time on the
ground that the relevant statute, 18 U.S.C. § 3624(b),
authorizes good conduct time only for time actually served
rather than the length of the sentence imposed.
5
Petitioner, who is incarcerated at FCI Fort Dix in New
Jersey, filed the present § 2241 Petition (under the mailbox
rule) on January 27, 2016.
He seeks credit for the period from
September 26 or September 30, 2008, through August 4, 2009.4 (ECF
No. 1 at 5, 10.)
He claims that the BOP erred and abused its
discretion in failing to give him prior custody credit by way of
a nunc pro tunc designation against his 120-month federal
sentence for all the time he was detained after the U.S. Marshal
took physical custody pursuant to the writ of habeas corpus
prosequendum.5
He further argues that the BOP should have run
his federal sentence retroactively concurrent to his
Commonwealth sentence under U.S. Sentencing Guideline 5G1.3(b)
because the Commonwealth sentence resulted from an offense that
was relevant to the federal offense.
At one point in the Petition Petitioner “seeks jail credit for
the time from September 26, 2008 through August 4, 2009,” (ECF
No. 1 at 5), and at another point he requests “Jail Credit for
the period of time including September 30, 2008 through August
4, 2009.” Id. at 10. Whether the date is September 26, 2008 or
September 30, 2008, this has no effect on the Court’s analysis
of the legal issues Petitioner raises.
4
Since the BOP’s final administrative decision granted
Petitioner prior custody credit from August 5, 2009 (day after
the Commonwealth sentence expired) and November 15, 2009 (day
before his federal sentence was imposed), the only time in
controversy is the time from September 26, 2008, through August
4, 2009, which was credited to Petitioner’s Commonwealth
sentence.
5
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The government argues that the BOP correctly calculated
Petitioner’s federal release date, the BOP did not abuse its
discretion in refusing to award prior custody credit for the
period from September 26, 2008, through August 4, 2009, and
there is no evidence that the federal sentencing judge intended
to adjust Petitioner’s federal sentence under U.S. Sentencing
Guideline § 5G1.3.
II.
A.
DISCUSSION
Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not
extend to a prisoner unless . . . [h]e is in custody in
violation of the Constitution or laws or treaties of the United
States.”
28 U.S.C. § 2241(c)(3).
A federal court has subject
matter jurisdiction under § 2241(c)(3) if two requirements are
satisfied:
(1) the petitioner is “in custody” and (2) the
custody is “in violation of the Constitution or laws or treaties
of the United States.”
28 U.S.C. § 2241(c)(3); Maleng v. Cook,
490 U.S. 488, 490 (1989).
This Court has subject matter
jurisdiction under § 2241 to consider the instant Petition
because Petitioner challenges the calculation of his sentence on
federal grounds and he was incarcerated in New Jersey at the
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time he filed the Petition.
See Blood v. Bledsoe, 648 F. 3d 203
(3d Cir. 2011); Vega v. United States, 493 F. 3d 310, 313 (3d
Cir. 2007); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241
(3d Cir. 2005); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir.
1991).
B.
Standard of Review
Insofar as the BOP reviewed Petitioner’s request
challenging the calculation of his sentence, this Court’s review
is limited to the abuse of discretion standard.
See Galloway v.
Warden of FCI Fort Dix, 385 F. App’x 59, 61 (3d Cir. 2010);
Barden, 921 F.2d at 478.
Under this standard, a reviewing court
must find that the actual choice made by the agency was neither
arbitrary nor capricious.
See C.K. v. N.J. Dep’t of Health &
Human Services, 92 F.3d 171, 182 (3d Cir. 1996).
“[A]gency
action must be set aside if the action was ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law’....” Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 414 (1971), overruled on other grounds,
Califano v. Sanders, 430 U.S. 99 (1977) (quoting 5 U.S.C. §
706(2)(A)).
To make a finding that agency action was not
arbitrary or capricious or an abuse of discretion, a court must
review the administrative record that was before the agency, and
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“must consider whether the decision was based on a consideration
of the relevant factors and whether there has been a clear error
of judgment. . . .
Although this inquiry into the facts is to
be searching and careful, the ultimate standard of review is a
narrow one.
The Court is not empowered to substitute its
judgment for that of the agency.” Overton Park, 401 U.S. at 416.
Reversal of agency action is warranted “[i]f the record before
the agency does not support the agency action, if the agency has
not considered all relevant factors, or if [the court] simply
cannot evaluate the challenged agency action on the basis of the
record before [it].” C.K., 92 F.3d at 184 (quoting Florida Power
& Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
C.
Analysis
The United States Code specifies when a federal sentence
commences, see 18 U.S.C. § 3585(a), and requires the BOP to
award prior custody credit for time served prior to commencement
of the sentence which has not been credited against another
sentence, see 18 U.S.C. § 3585(b).
Specifically, § 3585
provides, in relevant part:
(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
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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 addition, 18 U.S.C. § 3621(b) requires the BOP to
designate the place of imprisonment once a federal sentence
commences:
(b) Place of imprisonment.-- The Bureau of Prisons
shall designate the place of the prisoner’s
imprisonment. The Bureau may designate any available
penal or correctional facility that meets minimum
standards of health and habitability. . . . , that the
Bureau determines to be appropriate and suitable,
considering-(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the
sentence [that articulated the purpose behind the
sentence or offered a recommendation for placement]
. . .
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(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to section 994(a)(2) of
title 28.
18 U.S.C. § 3621(b).
In this case, the BOP found that Petitioner’s federal
sentence commenced on November 16, 2009, the date it was
imposed.
This determination complies with 18 U.S.C. § 3585(a),
which provides that “[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.”
Accordingly, the BOP did not
abuse its discretion in determining that the 120-month sentence
commenced on November 16, 2009, the date on which it was
imposed.6
The next step in calculating an inmate’s release date is to
determine “whether the prisoner is entitled to any credits
toward his sentence [pursuant to] 18 U.S.C. § 3585.” Blood v.
Bledsoe, 648 F.3d 203, 207 (3d Cir. 2011).
In its final
A federal sentence cannot commence prior to the date on which
it was imposed. See Blood v. Bledsoe, 648 F.3d 203, 208 (3d
Cir. 2011) (holding that the BOP’s interpretation of 18 U.S.C. §
3585 – that “[i]n no case can a federal sentence of imprisonment
commence earlier than the date on which it is imposed” - is
entitled to deference).
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decision, the BOP granted Petitioner prior custody credit from
August 5, 2009 (the day after his Commonwealth sentence
expired), through November 15, 2009 (the day before his federal
sentence commenced).
The dispute in this case focuses on
whether the BOP abused its discretion in determining that
Petitioner was not entitled to credit for the period from
September 26, 2008 (the date on which the federal indictment was
filed and a U.S. Magistrate Judge issued a warrant for
Petitioner’s arrest) through August 4, 2009 (the date on which
his Commonwealth sentence expired).
First, Petitioner argues that this period should be
credited against his federal sentence because, as of September
30, 2008, he was in the custody of the U.S. Marshal and confined
in a federal facility as a result of his federal indictment.
The BOP found that the Commonwealth had primary jurisdiction
over Petitioner since the Commonwealth arrested him on August 4,
2008, and that the Commonwealth did not relinquish primary
jurisdiction when it turned him over to the physical custody of
the U.S. Marshal on September 30, 2008.
The BOP found that the
Commonwealth relinquished jurisdiction over Petitioner on August
4, 2009, when his Commonwealth sentence expired.7
7
Connors found that “[o]n September 30, 2008, while in the
12
Where a defendant faces prosecution by both state and
federal authorities, under the primary jurisdiction doctrine,
the first sovereign to arrest the defendant has primary
jurisdiction and is entitled to have the defendant serve that
sovereign’s sentence before service of the sentence imposed by
the other sovereign.
See Taccetta v. Fed. Bur. of Prisons, 606
F. App’x 661, 663 (3d Cir. 2015); Bowman v. Wilson, 672 F.2d
1145, 1153 (3d Cir. 1982).
A sovereign relinquishes primary
jurisdiction by releasing an arrestee on bail, dismissing the
charges, or granting parole.
See Taccetta, 606 F. App’x at 663
(citing United States v. Cole, 416 F.3d 894, 897 (8th Cir.
2005)); Davis v. Sniezek, 403 F. App’x 738, 740 (3d Cir. 2010).
Temporary transfer of a prisoner pursuant to a writ of habeas
corpus ad prosequendum does not relinquish primary jurisdiction.
See Taccetta, 606 F. App’x at 663; Rios v. Wiley, 201 F.3d 257,
274-75 (3d Cir. 2000), superseded on other grounds, see United
States v. Saintville, 218 F.3d 246, 249 (3d Cir. 2000).
primary jurisdiction of the Commonwealth of Puerto Rico, you
were temporarily released to the United States Marshals Service
pursuant to a Writ of Habeas Corpus ad Prosequendum. On August
4, 2009, you completed your Commonwealth of Puerto Rico sentence
. . , thereby becoming an exclusive federal inmate.” (ECF No. 92 at 14.)
13
In this case, the BOP correctly determined that the
Commonwealth took primary jurisdiction by arresting Petitioner
on August 4, 2008.
Although Petitioner was in the physical
custody of federal officials from approximately September 30,
2008, through August 4, 2009, the BOP correctly determined that
this transfer of Petitioner to federal authorities pursuant to a
writ of habeas corpus ad prosequendum did not constitute
relinquishment of primary jurisdiction by the Commonwealth.
Because the time Petitioner seeks was credited against his
Commonwealth sentence, 18 U.S.C. § 3585(b) prohibits the BOP
from giving double credit for the time prior to imposition of
the federal sentence.8
Next, Petitioner argues that the BOP abused its discretion
in refusing to give him credit for the period from September 26,
2008, through August 4, 2009, by nunc pro tunc9 designating the
place for service of his federal sentence.
Petitioner asserts
See United States v. Wilson, 503 U.S. 329, 333 (1992) (“[T]he
final clause of § 3585(b) allows a defendant to receive credit
only for detention time ‘that has not been credited against
another sentence.’”).
8
“The Latin phrase ‘nunc pro tunc’ means ‘now for then’ and
‘permits acts to be done after the time they should have been
done with a retroactive effect.’” Sarango v. Attorney General of
U.S., 651 F.3d 380, 382 n.2 (3d Cir. 2011) (quoting Barden v.
Keohane, 921 F.2d 476, 478 n.2 (3d Cir. 1990)).
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that the BOP improperly considered the criteria set forth in 18
U.S.C. § 3621(b), that he was confined in a federal detention
center throughout this period, and that the Commonwealth and
federal offenses involved related conduct.
Although the BOP has the power under 18 U.S.C. § 3621 to
effectively give an inmate double credit by nunc pro tunc
designating the place of confinement for a federal sentence, see
Setser v. United States, 132 S.Ct. 1463, 1467-68 (2012), the BOP
did not have the power to do so for the time period Petitioner
seeks in this case, i.e., from September 26, 2008, through
August 4, 2009.
This is because Petitioner’s federal sentence
commenced on November 16, 2009, 18 U.S.C. § 3585(b) prohibits
the BOP from giving a prisoner double credit through a nunc pro
tunc designation for time served prior to commencement of the
federal sentence, and a federal sentence can not commence under
18 U.S.C. § 3585(a) before the date on which it was imposed.10
See, e.g., Blood v. Bledsoe, 648 F.3d 203, 208 (3d Cir.
2011)(holding that the BOP’s interpretation of § 3585 – that
“[i]n no case can a federal sentence of imprisonment commence
earlier than the date on which it is imposed” - is entitled to
deference); Prescod, Jr. v. Schuykill, 630 F. App’x 144, 147 (3d
Cir. 2015)(holding that the BOP did not abuse its discretion in
denying nunc pro tunc designation because “a federal sentence
cannot commence before it is imposed, 18 U.S.C. § 3585(a), and
Prescod points to no authority that holds that a nunc pro tunc
designation would operate to commence a sentence earlier.”);
Rashid v. Quintana, 372 F. App’x 260 (3d Cir. 2010)(holding that
10
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Finally, Petitioner argues that, in accordance with U.S.
Sentencing Guideline § 5G1.3(b), “the Federal sentence should be
run concurrent[ly] to the State sentence and the Petitioner
should be credited with time spent in jail prior to sentencing.”
(ECF No. 1 at 8.)
However, the sentencing court, not the BOP,
has the power to determine whether to run a federal sentence
concurrently or consecutively to a state sentence, see Setser,
132 S.Ct. at 1469, and Petitioner does not allege that Judge
Gelpi adjusted his sentence pursuant to U.S. Sentencing
Guideline § 5G1.3(b)(1) by ordering the sentence to run
retroactively concurrent with the expired Commonwealth
sentence.11
Accordingly, the BOP did not abuse its discretion in
failing to run the federal sentence concurrently with the
Commonwealth sentence in calculating Petitioner’s release date.
the BOP properly denied nunc pro tunc designation for time
served in state custody prior to commencement of federal
sentence because the federal sentence could not commence under §
3585(a) before it was imposed and because § 3585(b) prohibits
double credit through a nunc pro tunc designation for time
served prior to commencement of the federal sentence where that
time was credited against a state sentence).
Nothing in the judgment of conviction indicates that Judge
Gelpi ordered the federal sentence to run concurrently with the
expired Commonwealth sentence.
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III.
CONCLUSION
To summarize, Petitioner has not shown that the BOP abused
its discretion in denying his request for credit against his
federal sentence for the period from September 30, 2008, through
August 4, 2009.
The Court will dismiss the Petition for a writ
of habeas corpus.
An appropriate Order accompanies this
Opinion.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:
September 14, 2015
At Camden, New Jersey
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