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October 7, 2004.


The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge


Juan Carlos Patin-Perez has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner seeks a credit of approximately 20 months toward the federal sentence he is currently serving. The Federal Bureau of Prisons ("BOP") takes the position that this time was applied toward a prior state sentence, which precludes its application to his federal sentence. Because petitioner has not demonstrated an error in the BOP's calculation, the petition is denied.

  In 1993, while on probation for a prior New York state law conviction, petitioner, under the alias Diego Molina, was convicted of two counts of burglary in violation of state law. On August 23, 1993, petitioner was sentenced to a term of three and one-half to seven years in prison for the commission of the burglary offenses. At a state parole board hearing on August 8, 1996, petitioner requested that he be returned to the country of Colombia. On October 31, 1996, after serving the minimum sentence, petitioner was released on parole and deported to Colombia.

  On January 31, 1997, the state discovered that petitioner had re-entered the country, arrested him, and notified Immigration and Naturalization Services. The state parole board found that the re-entry constituted a violation of his conditions of release. According to a letter from the New York State Division of Parole, petitioner's parole was revoked and he was given a time assessment of time served plus six months. Petitioner was returned to Downstate Correctional Facility on June 9, 1997.

  On August 5, 1997, petitioner was charged in a one-count federal indictment with illegally re-entering the country after being deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. On September 17, 1997, petitioner was taken into federal custody. Petitioner pleaded guilty to the illegal re-entry charge on January 15, 1998, and was sentenced on February 19, 1999, to a term of 77 months in prison to be followed by two years of supervised release. On April 22, 1999, Patin-Perez was returned to New York State custody. On May 3, 1999, petitioner was conditionally released from state custody and returned to federal custody, where he remains.

A defendant shall be given credit toward the service of a term of imprisonment for any 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.
18 U.S.C. § 3585(b) (emphasis added); see also United States v. Labeille-Soto, 163 F.3d 93 (2d Cir. 1998). Patin-Perez argues that he is entitled to credit toward his current sentence for the time spent in federal custody from September 17, 1997 through April 22, 1999. Petitioner raised this same issue on October 13, 2000, when his lawyer filed his first motion to amend and correct sentence, pursuant to 28 U.S.C. § 2255. After looking into the matter, I held two hearings on November 8, 2000 and July 30, 2001. It was explained to petitioner at the July 30, 2001 hearing that it appeared that when his state parole was revoked, his underlying state sentence was reinstated. Therefore, the six-month sentence for the parole violation was in addition to the reinstatement of the balance of his underlying state sentence. I explained that no error on the part of the BOP had been shown and directed petitioner to address any additional concerns to the New York State Parole Board, which had made the calculations to which he objected.

  On July 21, 2003, petitioner, proceeding pro se, filed this petition in the Southern District of Georgia.*fn1 The petition was subsequently transferred to this court and respondents were ordered to file an answer to the petition by March 15, 2004. After reviewing the answer, I ordered respondents to submit, by July 30, 2004, a copy of the minutes of the state proceeding at which petitioner was sentenced for his state parole violation. Respondents were granted a one-month extension. On August 27, 2004, respondents submitted two transcripts relating to petitioner's parole hearings, however, the transcripts of his sentence could not be located.

  The BOP maintains that the New York State Department of Corrections has verified that the time in question was applied to petitioner's state sentence. Thus, according to 18 U.S.C. § 3585(b), petitioner is not entitled to credit the time served during that period toward his federal sentence. Petitioner has submitted nothing new to show that the BOP's calculation is incorrect. Therefore, the petition is denied.

  SO ...

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