United States District Court, S.D. New York
SIDNEY H. STEIN, District Judge.
David Cruz has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the Federal Bureau of Prisons (BOP)'s determination that his state and federal sentences shall run consecutively. ( See Amended Pet. dated Sept. 28, 2010, Dkt. No. 4.) On March 22, 2013, Magistrate Judge Debra Freeman filed a Report and Recommendation, recommending that this Court deny the petition. (Dkt. No. 18.) In response, petitioner moved to "withdraw... or amend" his petition so that he could add "new claims, " (Pet.'s Mot. to Amend, Dkt. No. 19), a motion that respondents opposed (Resps.' Mem. of Law in Opp. to Pet.'s Mot. to Amend Pet. ["Resps.' Opp."], Dkt. No. 22). On reply, petitioner for the first time objected to the Report and Recommendation. (Pet.'s Opp. to Resps.' Mem. of Law in Opp. to Pet.'s Mot. to Amend Pet. ["Pet.'s Reply"], Dkt. No. 27.) Shortly thereafter, petitioner requested an evidentiary hearing to establish "that he was arrested by federal officials on May 10, 1995." (Req. for Evidentiary Hr'g, Dkt. No. 28.) Respondents opposed that request. (Letter dated Sept. 13, 2013, Dkt. No. 29.) More than three months later, petitioner filed another memorandum, again objecting to the Report and Recommendation. (Pet.'s Objections to Report and Recommendation, Dkt. No. 30.) Petitioner subsequently reiterated his request to withdraw or amend his petition. (Letter dated Jan. 27, 2014, Dkt. No. 32.)
During the time that Judge Freeman's Report and Recommendation was pending before this Court, Cruz filed a separate habeas petition pursuant to 28 U.S.C. § 2241 in the U.S. District Court for the District of New Jersey. See Cruz v. Hollingsworth, No. 13-cv-2495-BRK (D.N.J. filed Apr. 18, 2013). That court subsequently determined that that petition should be "construed as a motion to amend the... habeas petition filed in the Southern District of New York" and accordingly transferred the habeas petition filed in the District of New Jersey to this Court "so that it can be docketed as a motion to amend" the petition that was pending before this Court. See Cruz, 2014 WL 47944, at *1-2.
For the reasons that follow, this Court: (1) adopts Magistrate Judge Freeman's Report and Recommendation; (2) denies petitioner's motion for an evidentiary hearing; (3) denies the claims in Cruz's existing petition; and (4) denies in part and grants in part Cruz's motion to amend his petition.
1. Report and Recommendation
A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). A district court must review de novo "those portions of the record or specified proposed findings or recommendations to which objection is made." Id .; see Fed.R.Civ.P. 72(b)(3). As Cruz is pro se, the Court construes Cruz's objections liberally. See DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 343 (S.D.N.Y. 2009). Having considered Cruz's objections and reviewed Magistrate Judge Freeman's Report and Recommendation de novo, the Court hereby adopts the Report and Recommendation in full and denies the claims in Cruz's current petition.
2. Cruz's Request for an Evidentiary Hearing
Before the filing of the Report and Recommendation recommending that this Court deny his petition, Cruz had argued that in May 1995 he was arrested by the "York County (State of Pennsylvania) Police" and was "extradited to the State of New York" shortly thereafter. (Pet.'s Traverse & Mem. of Law in Opp. to Resps.' Return & Mem. of Law in Opp. to Writ of Habeas Corpus, Dkt. No. 13, at 1-2.) He further contended that he remained in the custody of New York City officials facing New York state charges until he was transferred to the custody of the U.S. Marshals on a writ of habeas corpus ad prosequendum in October 1995. See id. at 2. Respondents characterized the chronology and location of Cruz's 1995 arrest differently but the parties agreed that Cruz was arrested by local officials on New York state charges and remained in state custody until the U.S. Marshals took custody of him in October 1995. ( See Resps.' Return & Mem. of Law, Dkt. No. 8, at 1.)
Based on the parties' representations, the Report and Recommendation found that at the time that the U.S. Marshals took custody of Cruz, he was still "being held by [New York] state on pending state charges, and the state had never relinquished its primary jurisdiction." ( See Report & Recommendation at 15.)
Only after the Report and Recommendation was filed did Cruz request an evidentiary hearing, seeking to establish "that federal authorities arrest[ed] him on May 10, 1995, " and that he was "taken into Federal Custody (first)." ( See Req. for Evidentiary Hr'g at 3.)
A petitioner's unsupported "self-serving and improbable assertions" are not sufficient to merit a hearing. See Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001). Similarly, "if the record refutes [a habeas petitioner's] factual allegations... a district court is not required to hold an evidentiary hearing." See Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The BOP's records confirm Cruz's initial representation to the Court: that he was arrested by York County, Pennsylvania police on May 10, 1995 and transferred to New York City Police Department custody the following week. ( See Decl. of Patricia Kitka dated Aug. 16, 2013, Attachs. 1-2, Dkt. No. 25-1.) BOP records also confirm the conclusion of the Report and Recommendation that Cruz was continuously in state custody from the time of his arrest on May 10, 1995 until he was transferred to the U.S. Marshals on October 4, 1995. ( See id., Attachs. 13-15.)
The only evidence Cruz attaches in support of his request for a hearing on the issue of whether state or federal officials arrested him in fact undermines his current assertion regarding the circumstances of his May 10, 1995 arrest. That document is a copy of his indictment on federal drug trafficking and money laundering counts, dated August 16, 1995. The fact that Cruz was not indicted in federal court until three months after being arrested undercuts his late-raised contention that it was federal authorities who effected his May 10, 1995 arrest.
In short, the testimony Cruz now seeks to elicit directly contradicts both his earlier representations to the Court and the consistent evidence in the record regarding the circumstances of his arrest. In light of that circumstance, and the fact that Cruz did not request a hearing until after the issuance of the magistrate's Report and Recommendation, the Court denies ...