Nunez v. Cruz

Filing 8

MEMORANDUM OPINION AND ORDER Accepting 6 Findings and Recommendations of the United States Magistrate Judge. The court therefore dismisses with prejudice as duplicative Angel Marcelino Nunez's Petition for Writ of Habeas Corpus. Magistrate Judge Jeff Kaplan no longer assigned to case. (Ordered by Judge Sam A Lindsay on 2/17/2012) (axm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANGEL MARCELINO NUNEZ,
Petitioner,
v.
MAUREEN CRUZ, Warden
FCI-Seagoville,
Respondent.

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3:12-CV-0040-L

MEMORANDUM OPINION AND ORDER
Before the court is Angel Marcelino Nunez’s Petition for Writ of Habeas Corpus, filed
January 5, 2012. The case was referred to Magistrate Judge Jeff Kaplan, who entered Findings and
Recommendation of the United States Magistrate Judge (“Report”) on January 6, 2012. Petitioner
filed objections to the Report on January 26, 2012.
Angel Marcelino Nunez (“Petitioner” or “Nunez”) first objects to the Report because it does
not address “on the merits” his contention that his state and federal cases are so closely related that
he should receive credit on his federal sentence for time spent in state custody. Nunez specifically
objects to the statement in the Report (relating to his habeas petition filed September 25, 2008) that
“[r]elief in the prior case was denied on the merits. Both cases seek habeas relief on essentially the
same grounds.” Report at 2. Petitioner also states that his current petition only seeks credit for time
spent in state custody after his federal sentence was imposed and is “based on evidence he did not
have at the time of his first petition.” Objections at 2. Petitioner provides as evidence the response
provided to him regarding his Administrative Remedy Appeal that denied his request for credit for
time spent serving his state sentence; the docket sheet for his federal criminal case, No. 6:02-cr00105-WSS-11, in which he was adjudged guilty of conspiracy to possess with intent to distribute
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methamphetamine and conspiracy to commit money laundering; the presentence report in relation
to his federal criminal case; his current Memorandum of Points and Authorities in Support of
Petition for Writ of Habeas Corpus; the Drug Enforcement Administration Report of Investigation
in relation to his federal criminal case; and Judgment in his state criminal case.
The court determines that the essential documents listed above were available to Petitioner
at the sentencing stage or, alternatively, at the time his first petition for writ of habeas corpus was
filed. Petitioner’s objections should have been raised at sentencing or in his 2008 petition.
Nevertheless, to the extent Petitioner requests credit for the time he was in state custody following
his federal sentencing, this issue was squarely addressed in relation to his 2008 petition for habeas
corpus relief. See Nunez v. Berkebile, No. 3-08-CV-1710-N, 2008 WL 5220282, at * 2 (N.D. Tex.
Dec. 12, 2008), appeal dism’d, No. 09-10661 (5th Cir. Sept. 22, 2009) (“Absent an indication by
the federal sentencing court that it intended for petitioner to serve his federal and state sentences
concurrently, the BOP [Bureau of Prisons] had discretion to deny such a request.”). Accordingly,
Petitioner’s request is duplicative.
Petitioner urges the court to consider that his state and federal offenses for which he is
serving consecutive sentences are related offenses. “It is well-established that a defendant may be
prosecuted and sentenced by both federal and state governments if the defendant’s criminal conduct
violates the laws of each sovereign.” United States v. Brown, 920 F.2d 1212, 1216 (5th Cir. 1991)
(emphasis added), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73
(5th Cir. 2006) (citation omitted). “Whether a sentence imposed should run consecutively or
concurrently is committed to the sound discretion of the district court, subject to consideration of
the factors set forth in 18 U.S.C. § 3553(a).” Id. (citation omitted). Although silent as to the service

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of Petitioner’s federal sentence in the Judgment and Commitment Order, the federal sentencing court
has since confirmed that it did not intend for Petitioner to serve his federal and state sentences
concurrently. In denying Petitioner’s request for nunc pro tunc relief, the sentencing judge wrote:
Movant was given due consideration through being allowed to plead to charges in
a superseding information which eliminated any possible mandatory minimum
sentence, and he was granted a six-level downward departure at sentencing due to
his cooperation with the Government. Any additional request to have his federal
sentence run concurrent[ly] with a state conviction would not have been granted.
Nunez v. United States, No. W-08-CA-030, Order at 3 (W.D. Tex. Feb. 7, 2008) (emphasis added).
Accordingly, this court will not disturb the sentence imposed in the discretion of the sentencing
court.
Petitioner next takes issue with the Report’s statement that “Petitioner’s application for writ
of habeas corpus should be summarily dismissed as duplicative.” Report at 3. Petitioner states that
a “summary dismissal does not constitute a decision on the merits.” Objections at 4. The court has
made a de novo review of those portions of the Report to which objection was made.
For the reasons herein stated, Petitioner’s objections are overruled. After reviewing the
pleadings, record in this case, applicable law, and the findings and conclusions of the magistrate
judge, the court determines that the findings and conclusions are correct and accepts them as those
of the court. The court therefore dismisses with prejudice as duplicative Angel Marcelino Nunez’s
Petition for Writ of Habeas Corpus.
It is so ordered this 17th day of February, 2012.

_________________________________
Sam A. Lindsay
United States District Judge

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