Ortiz v. Lara
Filing
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OPINION: For the foregoing reasons, the court denies the petition. As Ortiz has not made a substantial showing of the denial of a constitutional right, a Certificate of Appealability will not issue. See 28 U.S.C. § 2253(c). The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal taken from this decision would not be taken in good faith. SO ORDERED. (Signed by Judge Thomas P. Griesa on 11/19/2013) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ERIC ORTIZ,
Plaintiff,
11 Civ. 2092
v.
OPINION
WARDEN FRANK LARA,
Defendant.
Petitioner Eric Ortiz, serving a 120-month sentence in federal prison,
seeks relief under 28 U.S.C. § 2241, claiming that the Bureau of Prisons
incorrectly computed his prison sentence. He argues that he has been
improperly denied credit on his federal sentence for the time he spent in federal
custody while he was still serving a state burglary sentence.
The petition is denied.
FACTS
Background
The New York Police Department arrested Ortiz on June 16, 2005, for
attempted burglary. On January 30, 2006, he pleaded guilty in New York state
court to third-degree attempted burglary. He was sentenced on June 8, 2006,
to 1.5 to 3 years with an initial parole-eligibility date of September 24, 2007.
Between his guilty plea in the state burglary case and his sentencing,
Ortiz was on bail. While on bail, he was arrested on April 5, 2006, after New
York Police Department officers searched his residence and found firearms,
heroin, and cocaine. He was taken into custody by the NYPD and remained in
custody for 64 days, through his June 8, 2006, sentencing on the burglary
charge. However, Ortiz was not immediately charged with any criminal offense
related to that arrest and has never been charged by New York State
authorities in connection with that arrest. 1
On September 7, 2006, while he was serving his state sentence, he was
“borrowed” from state custody by the U.S. Marshals pursuant to a writ of
habeas corpus ad prosequendum, which entitles the federal authorities to take
a prisoner from state custody and hold him in federal custody to answer
charges in federal court. As will be explained below, although Ortiz was being
held by federal authorities, he was still serving his state burglary sentence and
still legally considered to be in the custody of the state.
On June 29, 2007, Ortiz pleaded guilty in federal court to (1) possession
with intent to distribute cocaine and heroin and (2) being a felon in possession
of a firearm. This plea was before Judge Irizarry of the United States District
Court for the Eastern District of New York. He remained in federal custody.
On September 24, 2007, Ortiz became eligible for parole on his state
burglary conviction. However, because he was still in federal custody at the
time pursuant to the writ, he was not taken to his parole hearing. To obtain
parole, he would have had to appear before the New York State Parole Board.
Although it is not entirely clear from the parties’ submissions, it appears that a
hearing was scheduled for September 24, 2007. Petitioner claims to have
1
Ortiz initially sought to have these 64 days credited toward his federal sentence. He subsequently withdrew this
argument.
2
asked prison officials to let him attend the hearing, but to no avail.
On March 24, 2008, Ortiz became entitled to a conditional release from
his state burglary sentence. However, he remained in federal custody and he
was not conditionally released at this time.
On May 16, 2008, Ortiz was sentenced to a 120-month federal prison
term for his federal crimes.
On June 12, 2008, Ortiz was released to the custody of the state of New
York to serve out the remainder of his state burglary sentence. On July 3,
2008, he was released by the New York Department of Corrections and
returned to federal custody, where he remains to date.
The Sentence Calculation
In calculating Ortiz’s federal prison sentence, the Bureau of Prisons
initially gave Ortiz credit for 64 days of time spent in custody between April 5
and June 8, 2006, the time between his arrest for possession of drugs and
firearms and his sentencing in the burglary case. But the Bureau of Prisons
later revoked this credit after determining that Ortiz was in state custody and
that these 64 days had already been applied toward Ortiz’s state burglary
sentence.
After receiving submissions from Ortiz’s attorney and the Government,
Judge Irizarry recommended to the Bureau of Prisons that petitioner’s federal
sentence be calculated as having begun on March 25, 2008, the day after
petitioner was entitled to a conditional release on his burglary charge. Ortiz’s
attorney also asked Judge Irizarry to recommend that he be given credit for
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time served between September 24, 2007, and March 24, 2008, because he
was eligible for parole on September 24, 2007, and would likely have been
released on that date. The court denied that request, finding that Ortiz’s
argument rested “on the unfounded assumption that ‘it seems likely’ the State
Parole Board would have granted parole.”
The Bureau of Prisons complied with Judge Irizarry’s request. Ortiz’s
sentence for his federal charges began to run on March 25, 2008.
The Claims
Ortiz claims that he would have been released from his state sentence
had he been allowed to attend the September 24, 2007, parole hearing, and
thus his federal sentence should have started running as of that date instead
of March 25, 2008. Adopting Ortiz’s interpretation would give him credit for
182 days of time served.
Ortiz exhausted his administrative remedies before filing this petition.
He has submitted copies of letters to various prison officials and their
responses, demonstrating exhaustion.
DISCUSSION
A writ of habeas corpus pursuant to 28 U.S.C. § 2241 is the appropriate
method of challenging the computation of a prison sentence, including credit
for time served. See Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006).
Generally, producing a state prisoner under a writ of habeas corpus ad
prosequendum to answer federal charges does not relinquish state custody.
See Jiminez v. Warden, 147 F. Supp. 2d 24, 28 (D. Mass. 2001). Thus, time in
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custody pursuant to that writ does not count toward a federal sentence
because the time is credited toward the state sentence. See 18 U.S.C.
§ 3585(b) (providing that credit can be given for time “that has not been
credited against another sentence”).
Ortiz seeks credit for serving his federal sentence from September 24,
2007, to March 24, 2008, but there is no dispute that this time was credited
against his state burglary sentence. Instead, Ortiz argues that because the
federal authorities prevented him from going to his state parole hearing on
September 24, 2007, and because he likely would have prevailed at such a
hearing and obtained his release, this time should be treated as having been
time served on his federal sentence.
Ortiz relies on Rosemond v. Menifee, 137 F. Supp. 2d 270 (S.D.N.Y.
2000). In Rosemond, the petitioner brought a § 2241 petition, alleging that,
two days before he was entitled to conditional release on a New York State
parole-violation sentence, he was taken into federal custody on a writ of habeas
corpus ad prosequendum. He then remained in federal custody pursuant to
the writ for nearly three months beyond his conditional release date before he
was returned to New York State custody. Two days after being released back to
state custody, he received his conditional release from the New York State
sentence. Although the Rosemond court recognized that normally the Bureau
of Prisons is not required to give a federal prisoner credit on a federal sentence
for time spent serving a state sentence, the court applied an exception to this
rule which applies when “the continued state confinement was exclusively the
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product of such action by federal law-enforcement officials as to justify treating
the state jail as the practical equivalent of a federal one.” Id. at 274 (quoting
Shaw v. Smith, 680 F.2d 1104, 1106 (5th Cir. 1982)). The court found it
persuasive that the petitioner had only two days left until his conditional
release when he was taken into federal custody on the writ and that he was
ultimately released by New York state two days after the federal authorities
released him back into state custody. Id. at 275. The court found these
circumstances to be strong evidence that the petitioner would indeed have been
released on his conditional release date but for the federal writ, and thus gave
the petitioner credit for time served on his federal sentence starting on his state
conditional release date. Id.
Here, unlike Rosemond, Ortiz is not seeking credit for time served
beginning on the date he was entitled to conditional release. In fact, he already
received that credit based on the recommendation of Judge Irizarry. Ortiz
seeks more: credit for time served starting with his parole-eligibility date, which
was six months before his conditional release date. As Judge Irizarry, who
presided over Ortiz’s criminal case noted, Ortiz’s argument rests on the flawed
assumption that, had he appeared the parole hearing, he surely would have
been released on that date. Ortiz offers nothing more than his opinion that he
would have been granted release. Unlike in Rosemond, there is no factual
support showing that Ortiz would have been released on that date.
Without any evidence that Ortiz actually would have been paroled if he
had appeared at his September 24, 2007, parole hearing, the court finds that
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Ortiz is not entitled to credit for time served between his September 24, 2007,
state parole eligibility date and his March 24, 2008, conditional release date.
Conclusion
For the foregoing reasons, the court denies the petition.
As Ortiz has not made a substantial showing of the denial of a
constitutional right, a Certificate of Appealability will not issue. See 28 U.S.C.
§ 2253(c). The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal taken from this decision would not be taken in good faith.
So ordered.
Dated: New York, New York
November 19,2013
Thomas P. Griesa
United States District Judge
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DATE FILED:
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Mailed from Chambers to:
Eric Ortiz
74481-053
FCI Otisville
Federal Correctional Institution
P.O. Box 1000
Otisville, NY 10963
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