ORELLANA v. KIRBY

Filing 4

OPINION. Signed by Chief Judge Jerome B. Simandle on 8/1/2016. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MAYNOR MIGUEL ORO ORELLANA,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 16-0754 (JBS)

v.
MARK A. KIRBY,

OPINION
Respondent.

APPEARANCES:
Maynor Miguel Oro Orellana, Petitioner Pro Se
# 43655-379
ACCC
P.O. Box 1600
Washington, MS 39190
SIMANDLE, Chief 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.
1.

Petitioner is a convicted and sentenced federal

prisoner previously incarcerated at FCI Fairton, New Jersey.
Petitioner was sentenced in the Southern District of Texas after
pleading guilty to illegal reentry. Petition at 12; United
States v. Orellana, No. 13-cr-0289-1 (S.D. Tx. Sept. 16, 2013).
2.

He raises two grounds for relief in his § 2241

petition, alleging that the Federal Bureau of Prisons 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.
3.

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 to
review the BOP’s calculation of Petitioner’s sentence.
4.

However, the Court lacks jurisdiction under § 2241

over any challenge Petitioner has regarding the performance of
his trial attorney. Challenges to the effectiveness of trial
counsel should be brought in a motion under 28 U.S.C. § 2255 in
the sentencing district. The Court will therefore dismiss Ground
Two to the extent Petitioner challenges his attorney’s
performance.
5.

Petitioner appealed his sentence to the Court of

Appeals for the Fifth Circuit, and that court affirmed the
district court on June 13, 2014. United States v. Orellana, 572
F. App'x 267 (5th Cir. 2014). The Court therefore declines to
sever the ineffective assistance claim and transfer it to the
Southern District of Texas as it appears more than one year has

2

elapsed since his judgment of conviction became final. See 28
U.S.C. § 2255(f).
6.

The Court shall order an answer as to Ground One of

the petition and to Ground Two to the extent it alleges his
sentences should be served currently.
7.

An appropriate order follows.

August 1, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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