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Ortiz v. Lara

United States District Court, Second Circuit

November 19, 2013

ERIC ORTIZ, Plaintiff,
v.
WARDEN FRANK LARA, Defendant.

OPINION

THOMAS P. GRIESA, District Judge.

Petitioner Eric Ortiz, serving a 120-month sentence in federal prison, seeks relief under 28 U.S.C. ยง 2241, claiming that the Bureau of Prisons incorrectly computed his prison sentence. He argues that he has been improperly denied credit on his federal sentence for the time he spent in federal custody while he was still serving a state burglary sentence.

The petition is denied.

FACTS

Background

The New York Police Department arrested Ortiz on June 16, 2005, for attempted burglary. On January 30, 2006, he pleaded guilty in New York state court to third-degree attempted burglary. He was sentenced on June 8, 2006, to 1.5 to 3 years with an initial parole-eligibility date of September 24, 2007.

Between his guilty plea in the state burglary case and his sentencing, Ortiz was on bail. While on bail, he was arrested on April 5, 2006, after New York Police Department officers searched his residence and found firearms, heroin, and cocaine. He was taken into custody by the NYPD and remained in custody for 64 days, through his June 8, 2006, sentencing on the burglary charge. However, Ortiz was not immediately charged with any criminal offense related to that arrest and has never been charged by New York State authorities in connection with that arrest.[1]

On September 7, 2006, while he was serving his state sentence, he was "borrowed" from state custody by the U.S. Marshals pursuant to a writ of habeas corpus ad prosequendum, which entitles the federal authorities to take a prisoner from state custody and hold him in federal custody to answer charges in federal court. As will be explained below, although Ortiz was being held by federal authorities, he was still serving his state burglary sentence and still legally considered to be in the custody of the state.

On June 29, 2007, Ortiz pleaded guilty in federal court to (1) possession with intent to distribute cocaine and heroin and (2) being a felon in possession of a firearm. This plea was before Judge Irizarry of the United States District Court for the Eastern District of New York. He remained in federal custody.

On September 24, 2007, Ortiz became eligible for parole on his state burglary conviction. However, because he was still in federal custody at the time pursuant to the writ, he was not taken to his parole hearing. To obtain parole, he would have had to appear before the New York State Parole Board. Although it is not entirely clear from the parties' submissions, it appears that a hearing was scheduled for September 24, 2007. Petitioner claims to have asked prison officials to let him attend the hearing, but to no avail.

On March 24, 2008, Ortiz became entitled to a conditional release from his state burglary sentence. However, he remained in federal custody and he was not conditionally released at this time.

On May 16, 2008, Ortiz was sentenced to a 120-month federal prison term for his federal crimes.

On June 12, 2008, Ortiz was released to the custody of the state of New York to serve out the remainder of his state burglary sentence. On July 3, 2008, he was released by the New York Department of Corrections ...


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