Macias-Martinez v. Holinka

Filing 4

ORDER that Petitioner has until 1/11/2010 to provide additional evidence showing that Respondent denied him sentence credit. Signed by Chief Judge Barbara B. Crabb on 12/14/2009. (eds),(ps)

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IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - G U A D A LU PE MACIAS-MARTINEZ, ORDER Petitioner, 0 9 -c v -6 9 1 -s lc 1 v. W AR D EN HOLINKA, Oxford Correctional I n s t i t u ti o n , R espo nd ent. - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Petitioner Guadalupe Macias-Martinez, a prisoner at the Federal Correctional In stitu tio n in Oxford, Wisconsin, is serving a sentence imposed in the Eastern District of W isco n sin . He has filed a pleading styled as a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2241 and has paid the $5 filing fee. In the petition, he seeks to compel respo nd ent Holinka to credit against his federal prison term the time he served in state custody on a sentence that was to run concurrently with his federal sentence. Specifically, p etitio n er asks that he be credited for time served between January 11, 2008 to October 30, 2 0 0 8. At this early date, consents to the magistrate judge's jurisdiction have not yet been filed by all the parties to this action. Therefore, for the sole purpose of issuing this order, I am assuming jurisdiction over the case. 1 Although petitioner is properly challenging the execution of his sentence by presenting his claims in a petition for a writ of habeas corpus under 2241, I cannot issue an order to show cause at this time. The allegations in his petition and the document attached to his petition fail to show that respondent is illegally denying him sentence credit. Petition er relies on 18 U.S.C. 3585(b), which provides: A defendant shall be given credit toward the service of a term of imprisonment for an y time he has spent in official detention prior to the date the sentence commences-(1 ) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. Thus, before petitioner is entitled to relief, it must appear from his petition that he was im prisoned before the date his federal sentence commenced, that his preconviction detention w as related to the federal sentence he is serving or was the result of another charge for which he was arrested after the federal offense and that the detention has not been credited to an other sentence. Petitioner provides none of the information necessary to decide whether he is entitled to relief. The document petitioner submitted shows only that he was sentenced to serve 52 m on ths on his federal sentence and that his federal sentence was to run concurrently with his state sentence in case number 03CF000137. There is no information about the dates petitioner commenced service of his federal sentence or of any state sentence. Nor is there any information regarding why or how long he was imprisoned before the start of his federal sentence. In addition, petitioner should be aware that, regardless of the fact that his federal sentence was to run concurrently with his state sentence, if his imprisonment between January 11, 2008 and October 30, 2008 was credited toward his state sentence, he would no t be entitled to double credit for that time. United States v. Ross, 219 F.3d 592, 594 (7th C ir. 2000) (" 3585(b) forbids the BOP from giving credit for presentence custody when th at credit has been applied against another sentence."); United States v. Walker, 98 F.3d 94 4, 945 (7th Cir. 1996) (under 3585, "you can get credit against only one sentence"). Acco rdingly, when petitioner submits his amended petition, he should submit evidence showing that respondent has violated 3585(b). In particular, petitioner should subm it his sentence calculation prepared by the Bureau of Prisons and any documents that w ould show whether his incarceration between January 11, 2008 and October 30, 2008 was credited toward his state sentence. Finally, I note that petitioner has not submitted the administrative record created as a result of his exhaustion of administrative remedies, which he alleges he has completed. Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir. 1986) (ordinarily, federal prisoners are requ ired to exhaust administrative remedies before petitioning for writ of habeas corpus). Although petitioner is not required to submit his exhaustion materials, he is encouraged to do so because they may be useful in considering his claim. ORDER IT IS ORDERED that petitioner Guadalupe Macias-Martinez may have until January 11 , 2010, to provide additional evidence showing that respondent Holinka has denied him sentence credit in violation of 18 U.S.C. 3585. If petitioner does not respond to this order by January 11, I will dismiss this case for petitioner's failure to show that he is in custody in violation of federal law. E n tered this 14t h day of December, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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