Green v. Warden MDC Brooklyn et al

Filing 14

MEMORANDUM OPINION AND ORDER: the Petition is DISMISSED. Additionally, because Petitioner 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; see a lso Lozada v. United States, 107 F.3d 1011, 1014-16 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). Finally, the Court certifies, pursuant to Title 28, United States Code, Section 1915(a) (3), that any appeal from this decision would not be taken in good faith, so in forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to close the case and to mail a copy of this Memorandum Opinion and Order to Petitioner. (Signed by Judge Jesse M. Furman on 8/12/2015) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MARK GREEN,
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Petitioner,
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-v:
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WARDEN MDC BROOKLYN, et al.,
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Respondents.
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08/12/2015
15-CV-6251 (JMF)
MEMORANDUM
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
Petitioner Mark Green, having been convicted on December 4, 2009, of various offenses
in the United States District Court for the Eastern District of Pennsylvania and sentenced
principally to 139 months’ imprisonment, brings this petition pursuant to Title 28, United States
Code, Section 2241(a) seeking the writ of habeas corpus. In his Petition, Green argues that time
he spent in Pennsylvania state custody from 2001 to 2006 or 2007 should be credited toward his
current sentence because he was held in state custody due to the negligence of the Federal
Bureau of Prisons. (Petn. at 8-10). Green initially filed his Petition in the United States District
Court for the Eastern District of New York. (Docket No. 1). On February 24, 2015,
Respondents filed a memorandum in opposition to the Petition, arguing that the Petition should
be dismissed (or transferred) for lack of jurisdiction because Petitioner is incarcerated in the
Southern District of New York or, in the alternative, on the merits. (Docket No. 9). Petitioner
responded on March 5, 2015 (Docket No. 10), and by Order entered on August 7, 2015, the
Honorable Kiyo A. Matsumoto transferred the Petition to this Court. (Docket No. 11).
Upon review of the Petition, Respondents’ memorandum, and Petitioner’s reply, the
Petition is DISMISSED, substantially for the reasons set forth in Section II of Respondents’
memorandum. Put simply, pursuant to Title 18, United States Code, Section 3585(b), Petitioner
is not entitled to credit for the time he was incarcerated by the state of Pennsylvania because that
incarceration was neither the “result of the offense for which the sentence” he is now serving
“was imposed” nor the “result of any other charge for which” Petitioner “was arrested after the
commission of the offense for which the sentence” he is now serving “was imposed.” Indeed,
Petitioner’s current conviction stems from conduct committed between January 2007 and August
2007, see United States v. Green, No. 08-CR-44, 2011 WL 1877299, at *1 (E.D. Pa. May 16,
2011), aff’d, 516 F. App’x 113 (3d Cir. 2013), cert. denied, 134 S. Ct. 2818 (2014), and he was
released from Pennsylvania state custody in October 2006. (Docket No. 11, at 2 n.1).
For the foregoing reasons, the Petition is DISMISSED. Additionally, because Petitioner
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; see also Lozada v. United States, 107 F.3d

1011, 1014-16 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d
255, 259-60 (2d Cir. 1997). Finally, the Court certifies, pursuant to Title 28, United States Code,
Section 1915(a)(3), that any appeal from this decision would not be taken in good faith, so in
forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of the Court is directed to close the case and to mail a copy of this
Memorandum Opinion and Order to Petitioner. 1
SO ORDERED.
Dated: August 12, 2015
New York, New York

1

In his Petition, Petitioner requested the appointment of counsel (primarily to assist in
connection with making an application for bail). (Docket No. 1, at 3). In light of the Court’s
decision, any such application is moot. Additionally, it is well established that “[t]here is no
constitutional right to representation by counsel in habeas corpus proceedings” and that
“[c]ounsel should not be appointed in a case where the merits of the indigent’s claim are thin and
his chances of prevailing are therefore poor.” Williams v. Breslin, 06-CV-2479 (SJF), 2008 WL
163599, at *1 (E.D.N.Y. Jan. 10, 2008) (citing Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993)
and Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001)) (internal quotation
marks omitted).
2