Herencia v. Wilson
MEMORANDUM OPINION AND ORDER- it is hereby ORDERED that respondent's Motion to Dismiss for Failure to State a Claim (Dkt. Nos. 6,10) is GRANTED, respondent's Motion to Dismiss for Lack of Jurisdiction (Dkt. Nos. 7,11) is DENIED, as moot, an d petitioner's Motion to Establish Petitioner's D.C. Code § 23-110 Remedy was Inadequate or Ineffective (Dkt. No. 3) is DENIED, as moot. Accordingly, it is hereby ORDERED that this petition be and is DISMISSED, WITH PREJUDICE. This Court expressly declines to issue a certificate of appealability . Signed by District Judge Liam O'Grady on 7/19/2017. (see Order for further details)(dest, ) (copy sent as directed in the Order)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Warden Eric Wilson,
MEMORANDUM OPINION AND ORDER
MatthewHerencia, an inmateproceeding pro
has filed a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2241. Petitioner is currently incarcerated at Federal Correctional
Institute - Petersburg; however, he is incarcerated under orders ofthe District of Columbia
Superior Court. Dkt. No. 1. Petitioner is challenging the computation of his sentence by the
Federal Bureau of Prisons ("BOP"). Id Respondent filed a Motion to Dismiss, or, in the
Alternative, Motion for Summary Judgment, as well as a memorandum of lawwith supporting
exhibits, andthe notice required by Roseboro v. Garrison. 528 F.2d 309(4thCir. 1975) and Local
Rule 7K. Dkt. Nos. 6-11. Petitioner filed a Memorandum of Law in Support of Petitioner's
Motion to Grant ReliefRequested in Writ of Habeas Corpus, which will liberally be construed as
petitioner's opposition to respondent's motion. Dkt. No. 12. Respondent filed a reply. Dkt.
No. 16. This matter is now ripe for adjudication. For the reasons stated below, respondent's
Motion to Dismiss for failure to state a claim will be granted andthe petition will be dismissed,
On January 13,1998,a Virginia state court sentenced petitioner to ten years
imprisonment, three of which were to be served "concurrently ... with any impending sentence
that [petitioner] may face in the District of Columbia."
Dkt. No. 1 at Attachment 1. On June
29,1998, the District of Columbia Superior Court sentenced petitioner to 15 to 45 years
imprisonment, consecutive to any other sentence. Dkt. No. 1. On June 20,2013, VDOC
issued a Release Authorization, stating that petitioner was being released to a U.S. Marshal
detainer; however, the U.S. Marshal Service did notpick petitioner up from VDOC custody.
Id. at Attachment 3. Accordingly, on November 2,2005, VDOC issued another release
authorization, releasing petitioner to his U.S. Marshal judgment and commitment.
Attachment 4. BOP began computing his sentence from November 2,2005.
Dkt. No. 12 at
Attachment 2. Petitioner raises four grounds for issuance of the writ, all of which essentially
make the same argument. Specifically, petitioner argues that BOP should give himcredit for
the timehe spent in VDOC custody during which he was supposed to be serving his Virginia
state sentence and District of Columbia Superior Court sentence concurrently, pursuant to the
Virginia state court sentencing order. Dkt. No. 1.
In 2014, while petitioner was incarcerated at USP Allenwood, he filed a § 2241 petition
in the United States District Court for the Middle District of Pennsylvania. Herencia v.
Zickenfoose. Case No. 3:14-cv-528-RPC/GS. In thatpetition, petitioner also argued that BOP
was not giving himcredit forpartof the time he served in VDOC custody. Id
was dismissed because "it is clear that the judgment and commitment order of the Superior Court
of the District of Columbia specified that [petitioner's] aggregate sentence ... was to run
consecutively to any other sentences he was presently serving," "[t]here is abundant authority
indicating thatfederal courts are authorized to impose consecutive sentences to existing state
sentences," and"federal sentencing court[s], such as the District of Columbia Superior Court,
[are] not bound bya state plea bargain unless the federal government implicated itself directly or
indirectly in the stateplea bargain process." Id
Because petitioner did not argue that "the
federal prosecutor or the District of Columbia Superior Court agreed with the provision of the
[Virginia] state courtsentence whichprovided that 3 years of the ten year sentence were to be
served concurrently withthe federal sentence," the court heldthat "[t]he Virginia state courthad
no authority to bindthe hands of the District of Columbia Superior Court to impose a fully
Section 2244(a) of Title 28 of the United States Code states that
[n]o circuit or districtjudge shall be required to entertain an application for a writ
of habeas corpus to inquire intothe detention of a person pursuant to a judgment
of a court of the United States if it appears that the legality of such detentionhas
been determined by a judgeor court of the United States on a priorapplication
for a writ of habeas corpus, except as provided in section 2255.
28 U.S.C. § 2244.
Although § 2244(a) does not specifically reference proceedings under § 2241,
courts have consistentlyheld that the statute bars claims in second or successive §
2241 petitions that were addressed on the merits in previous habeas corpus
proceedings. ^ Queenv. Miner. 530 F.3d 253,255 (3d Cir.2008) (noting that
§ 2244(a), by its terms, applies to any habeas corpusapplication filed by a person
in custody pursuant to a judgmentof a United States court); Chambers v. United
States, 106 F.3d 472,475 (2d Cir.1997) (applying § 2244(a) to dismiss a second
or successive § 2241 petition seeking to re-litigate claims that had been asserted
and denied in a prior petition); Valona v. United States. 138F.3d 693, 695 (7th
Cir.1998) (noting that § 2244(a) bars successivepetitions under § 2241 "directed
to the same issue concerningexecution of a sentence");Mason v. Ozmint. 361
Fed.Appx. 503 (4th Cir.2010) (unpublished) (concluding that regardless of
whether Mason's petition should have beentreated as a § 2241 or 2254 petition,
"the claim he sought to raise was successive, and [was] thus precluded by 28
U.S.C. § 2244(a)").
Coder V. O'Brien. 719 F. Supp. 2d 655, 659 (W.D. Va.), afPd, 405 F. App'x 778 (4th Cir. 2010).
[hi McCleskev v. Zant. 499 U.S. 467 (1991) t]he Court... made clear that "a
petitioner can abuse the writ by raising a claimin a subsequent petition that he
could have raised in his first, regardless of whether the failure to raise it earlier
stemmed fi*om a deliberate choice [or fi-om inexcusable neglect]."
Id. at 660 (quoting McCleskev. 499 U.S. at 489) (second alteration in original).
Because petitioner's claims were dismissed on the merits by the Middle District of
Pennsylvania, to the extent petitioner is raising the same claims in this successive § 2241
petition, his claims are barred from review pursuant to § 2244(a). To the extent petitioner is
raising claims thatcould have been raised in his prior § 2241 petition, these claims are barred by
"the common law doctrine of abuse of the writ." Coder. 719 F. Supp. 2d at 659. As such, the
petition will be dismissed. Therefore, respondent's Motion to Dismiss for Failure to State a
Claim (Dkt. Nos. 6,10) is GRANTED, respondent's Motion to Dismiss for Lack of Jurisdiction
(Dkt. Nos. 7,11) is DENIED, as moot, and petitioner's Motion to Establish Petitioner's D.C. Code
§ 23-110 Remedy was Inadequate or Ineffective (Dkt. No. 3) is DENIED, as moot.
Accordingly, it is hereby
ORDERED that this petition be and is DISMISSED, WITH PREJUDICE.
To appeal this decision, petitioner must file a written notice of appeal with the Clerk's
Office within sixty (60) days of the date of this Order. S^ Fed. R. App. P. 4(a). A written
notice of appeal is a short statement stating a desire to appeal this Order and noting the date of
the Order petitioner wants to appeal. Petitioner need not explain the grounds for appeal until so
directed by the Court. Failure to timely file a notice of appeal waives the rightto appeal this
decision. Petitioner mustalso request a certificate of appealability firom a circuit justiceor
judge. S^ 28 U.S.C. § 2253 and Fed. R. App. P. 22(b). For the reasons statedabove, this
Court expressly declines to issue such a certificate.
The Clerk is directed to enterfinal judgment in favor of respondent EricWilson pursuant to
Fed. R. Civ. P. 58,to senda copy of this Memorandum Opinion andOrderto petitioner and counsel
of record for respondent, and to close this civil action.
Entered this 1^*" day of
United States District^ dge
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