ORELLANA v. KIRBY
OPINION. Signed by Judge Jerome B. Simandle on 9/6/17. (jbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MAYNOR MIGUEL ORO ORELLANA,
HONORABLE JEROME B. SIMANDLE
No. 16-0754 (JBS)
MARK A. KIRBY,
Maynor Miguel Oro Orellana, Petitioner Pro Se
P.O. Box 1600
Washington, MS 39190
Caroline A. Sadlowski, AUSA
United States Attorneys Office
970 Broad Street
Newark, NJ 07102
David Vincent Bober, AUSA
Office of the U.S. Attorney
District of New Jersey
402 East State Street
Trenton, NJ 08608
Attorneys for Respondent Mark Kirby
SIMANDLE, District Judge:
This matter comes before the Court on Maynor Miguel Oro
Orellana’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. Docket Entry 1. Respondent Mark Kirby argues the
petition should be denied. Answer, Docket Entry 6. For the
reasons stated below, the petition is denied with prejudice.
On April 23, 2013, Petitioner was arrested in Texas for
possession of marijuana and for engaging in an organized
criminal activity. Declaration of Jeff R. Johnson (“Johnson
Dec.”), Exhibit A ¶ 5.1 Immigration Enforcement (“ICE”) lodged a
detainer against Petitioner the next day. Id. ¶ 5(d). Petitioner
was sentenced to six days imprisonment on the marijuana
possession charge on April 25, 2013. Id. ¶ 5(e). The state court
gave Petitioner three days of credit against his sentence, and
Petitioner’s sentence on the marijuana charges ended on April
28. Exhibit D. Petitioner was held on ICE’s detainer between
April 29 and May 14, 2013. September 15, 2016 Letter, Docket
Entry 7. The organized criminal activity charges remained
pending in the state courts.
On May 15, 2013, a grand jury from the United States
District Court for the Southern District of Texas (“Southern
District”) charged Petitioner with illegal reentry by a
previously deported alien after an aggravated felony conviction,
8 U.S.C. § 1326(a), (b)(2). Exhibit E. “According to the United
States Probation Office in Houston, Texas, on April 15, 2009,
“Exhibit” refers to the exhibits included with Respondent’s
[Petitioner] was convicted of aggravated assault with serious
bodily injury . . . and sentenced to four years imprisonment. On
April 4, 2012, [Petitioner] was deported, but he illegally
reentered the United States on March 7, 2013.” Johnson Dec. ¶
5(b). The Southern District issued a writ of habeas corpus ad
prosequendum on May 21, 2013. Exhibit F. Petitioner first
appeared before the district court on May 24, 2013 and pled
guilty on June 17, 2013. Id.; Exhibit H. He was sentenced to a
50-month term of incarceration on September 16, 2013. Exhibit H.
United States v. Orellana, No. 13-cr-0289-1 (S.D. Tx. Sept. 16,
2013). The district judge indicated “the sentence imposed takes
into consideration and gives the defendant credit for the time
he spent in ICE custody before he was transferred to federal
custody.” Exhibit I at 10:20-23. Petitioner was then returned to
the state in order to face his remaining state charges. Johnson
Dec. ¶ 6(f).
On January 6, 2014, Petitioner was sentenced to 8-months
incarceration on the pending organized crime charges. Exhibit J.
The state applied credit to Petitioner’s sentence dating back to
May 15, 2013, and Petitioner concluded his state sentence on
January 9, 2014. Exhibit K at 2. He was held by the state until
the U.S. Marshals took him into custody on January 16, 2014 to
begin serving his federal sentence. Exhibit L; Exhibit G at 3.
The Federal Bureau of Prisons (“BOP”) calculated Petitioner’s
federal sentence as beginning on January 16, 2014 and gave him
prior custody credit for January 10 to 15, 2014. Exhibit M at 23. It projected Petitioner’s release date as August 26, 2017.
Id. at 3.
After seeking relief via administrative remedy,2 Petitioner
filed this § 2241 petition arguing the BOP improperly denied him
jail credits for time spent in federal custody, and that his
trial attorney failed to provide the proper documentation to the
State of Texas “and as a consequence the State of Texas did not
dismiss my [state] case . . . and my [state] case was not run
concurrent” with his federal sentence. Petition ¶ 13. The Court
reviewed the petition under the Rule 4 of the Rules Governing
Habeas Proceedings and dismissed the ineffective assistance of
counsel claim as it lacked jurisdiction over that claim in a §
2241 petition. It directed Respondent to answer the claim that
the BOP miscalculated Petitioner’s jail credits. Opinion and
Order, Docket Entries 5 & 6.
Respondent filed its answer on September 15, 2016, but
requested a brief extension to look into whether Petitioner was
entitled to credit for the time spent in ICE’s custody from
April 29 to May 14, 2013. Answer; September 15, 2016 Letter. The
Court granted the extension of time, and Respondent informed the
Respondent concedes Petitioner fully and properly exhausted his
Court on November 10, 2016 that it had determined Petitioner was
entitled to credit for that time. Supplemental Answer, Docket
Entry 12. It stated the BOP had recalculated Petitioner’s
sentence to end on August 8, 2017. Id. Petitioner did not file
Section 2241 “confers habeas jurisdiction to hear the
petition of a federal prisoner who is challenging not the
validity but the execution of his sentence.” Coady v. Vaughn,
251 F.3d 480, 485 (3d Cir. 2001). This Court has jurisdiction
under § 2241 to consider a claim that the BOP has miscalculated
a sentence. See Blood v. Bledsoe, 648 F.3d 203, 206 (3d Cir.
2011), cert. denied, 132 S. Ct. 1068 (2012); Woodall v. Fed.
Bureau of Prisons, 432 F.3d 235, 242 (3d Cir. 2005).
Petitioner argues he is entitled to credit on his federal
sentence for time spent in custody between April 23, 2013 and
January 15, 2014. He states the BOP only credited him the time
between January 10 and 15 instead of the full amount. Petition ¶
13. “In calculating a federal sentence, the BOP first determines
when the sentence commenced and then determines whether the
prisoner is entitled to any credits toward his sentence.” Blood,
648 F.3d at 207 (citing 18 U.S.C. § 3585).
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.” 18 U.S.C. § 3585(a). The BOP determined the start date
of Petitioner’s federal sentence was January 16, 2014 because
that was the day the Marshals took him into custody after the
conclusion of his state sentence for organized criminal
activity. See Exhibit G.
Here, Petitioner was, for the most part,3 in the primary
custody of the State of Texas up until the Marshals retrieved
him on January 16. “Where a defendant faces prosecution by both
state and federal authorities, the ‘primary custody’ doctrine
determines where and how the defendant will serve any resulting
sentence of incarceration. The basic principle is that the first
sovereign to arrest the defendant is entitled to have the
defendant serve that sovereign's sentence before one imposed by
another sovereign.” Taccetta v. Fed. Bureau of Prisons, 606 F.
App'x 661, 663 (3d Cir. 2015) (citing Bowman v. Wilson, 672 F.2d
1145, 1153 (3d Cir. 1982)). “‘Generally, a sovereign can only
relinquish primary jurisdiction in one of four ways: (1) release
This excludes the period of time between April 29 and May 14,
2013 during which Petitioner was in ICE’s primary custody.
on bail; (2) dismissal of charges; (3) parole; or (4) expiration
of sentence.’” Davis v. Sniezek, 403 F. App'x 738, 740 (3d Cir.
2010) (quoting United States v. Cole, 416 F.3d 894, 897 (8th
Cir. 2005)). None of those circumstances exist in the present
case. Although Petitioner finished serving his state sentence of
the marijuana charges, his organized criminal activity charges
remained pending at the time the district court issued the writ
ad prosequendum. “[T]emporary transfer of a prisoner pursuant to
a writ ad prosequendum does not constitute a relinquishment.”
Taccetta, 606 F. App'x at 663 (citing Rios v. Wiley, 201 F.3d
257, 264-75 (3d Cir. 2000)). See also George v. Longley, 463 F.
App'x 136, 140 (3d Cir. 2012); McKnight v. United States, 27 F.
Supp. 3d 575, 583 (D.N.J. 2014).
Petitioner was arrested first by Texas state authorities,
and the writ issued by the Southern District did not wrest
primary custody away from Texas. He was in primary state custody
up until his release to the Marshals Service on January 16, 2014
after he finished serving his sentence for organized criminal
activity. Therefore, the BOP correctly determined the start date
of Petitioner’s federal sentence.
B. Prior Custody Credit
Section 3585 states in relevant part:
A defendant shall be given credit toward the service of
a term of imprisonment for any time he has spent in
(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(b). Petitioner received credit towards his
state sentences for the time between April 23 and 28, 2013
(marijuana), and May 15, 2013 to January 9, 2014 (organized
criminal activity). Exhibits D, K, & L. Petitioner is not
permitted to receive “double credit” for this time under the
As noted by Respondent, “[t]he only time not accounted for
by his state sentences is the period between April 29, 2013 (the
day after he completed his sentence on the marijuana charges)
until May 14, 2013 (the day before he started receiving credit
for the organized-criminal-activity charge).” Answer at 10-11.
The BOP has since corrected this error, awarded Petitioner
credit for that period of time, and adjusted his release date
accordingly. November 10, 2016 Letter. Therefore, Petitioner has
received all the credit he was entitled to under § 3585(b).
C. Nunc Pro Tunc Designation
During Petitioner’s exhaustion of his administrative
remedies, the BOP interpreted his request for credit between
April 23, 2013 and January 9, 2014 as a request for nunc pro
tunc designation of the state facilities as the place of
confinement for his federal sentence. The BOP denied this
request after considering it under 18 U.S.C. § 3621(b) and
Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). See Exhibit P.
This Court reviews to determine “whether the BOP, in weighing
the factors, acted arbitrarily, capriciously, or contrary to the
law . . . .” Galloway v. Warden of F.C.I. Ft. Dix, 385 F. App'x
59, 64 (3d Cir. 2010).
The BOP denied Petitioner’s request as the state offenses
were not related to his federal conviction, he had an extensive
criminal history, and the Southern District did not recommend
nunc pro tunc designation. Exhibit P. Based on the record before
the Court, the BOP’s decision was not arbitrary, capricious, or
contrary to the law. In denying Petitioner’s administrative
appeal, the administrator for the National Inmate Appeals
carefully reviewed the Barden factors and concluded nunc pro
tunc designation was “not consistent with the goals of the
criminal justice system due to the nature of [Petitioner’s]
current federal conviction, state conviction and repetitive
criminal conduct.” Administrative Remedy Response, Petition at
17; see also Exhibit R. Nothing in the administrative record as
a whole indicates the BOP abused its discretion.
To the extent Petitioner argues the district court
specifically awarded him this credit, Petition ¶ 13(a), the
record does not support this assertion. At sentencing, the
district judge only specified that Petitioner should receive
credit for time spent in ICE’s custody. Exhibit I at 10:20-23.
The BOP has already recalculated his sentence to include the
time between April 29 and May 14, 2013. The district court was
otherwise silent on whether the sentences should be concurrent
or consecutive. See generally Exhibit I. Therefore, the
presumption is that the district court intended for Petitioner
to serve consecutive sentences. 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
This may be due to the fact the judge appeared to be under
the impression that the state charges would be dismissed. See
Exhibit I 3:19 to 4:25. However, the district court did not
respond to the BOP’s September 15, 2014 inquiry as to whether it
recommended nunc pro tunc designation. Exhibit O; Johnson Dec.
¶¶ 11, 17-18. “BOP's choice here to exercise its discretion, in
part by relying upon the federal district judge's silence on the
issue of concurrency, was not arbitrary and capricious.”
Galloway, 385 F. App'x at 63. The BOP therefore appropriately
exercised its discretion when it denied nunc pro tunc
For the reasons stated above, the BOP correctly calculated
Petitioner’s federal sentence, and did not arbitrarily or
capriciously deny his nunc pro tunc request. The § 2241 petition
is therefore denied.
An appropriate order follows.
JEROME B. SIMANDLE
U.S. District Judge
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