United States District Court, N.D. New York
JAMES K. SINGLETON, Jr., Senior District Judge.
Carlos Alamo, a federal prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2241. Smith is currently in the custody of the Federal Bureau of Prisons ("BOP") and is incarcerated at the Ray Brook Federal Correctional Institution. Respondent has answered, and Alamo has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
The United States District Court for the District of New Jersey summarized the facts of this case as follows:
Alamo was arrested by New York authorities on four Bronx County indictments and, on February 19, 1999, was remanded to the New York City Department of Corrections. While awaiting trial on those state charges, he was indicted by the United States for conspiracy to distribute heroin in violation of 21 U.S.C. § 846, charges that he contends were related to the pending state charges.
On May 14, 1999, pursuant to a writ of habeas corpus ad prosequendum, New York authorities produced Alamo to the United States Marshal to answer the federal charges. On November 15, 2000, judgment was entered in the U.S. District Court for the Southern District of New Jersey sentencing Alamo to a term of imprisonment of 151 months. Alamo remained in the temporary custody of federal authorities, pursuant to the writ of habeas corpus ad prosequendum. On November 17, 2000, Alamo was transported to state court where a sentence of one and one-half to three years was imposed. As evidenced by the sentencing transcript... the state court was under the mistaken impression that Alamo was then serving his federal sentence and ordered that Alamo's state sentence would be served concurrently with the federal sentence. Nothing in the transcript indicated the source of the state court's misunderstanding. Alamo was returned to the New York City Department of Corrections on December 8, 2000.
Another state sentence was imposed on November 30, 2001, to run concurrently with the federal sentence "now being served."FN2. On January 11, 2002, Alamo was transferred to the New York State Department of Correctional Services to begin serving his state sentences. He received state jail time credit for the periods from January 5, 1999, through January 6, 1999, from February 19, 1999, through May 14, 1999, and from December 8, 2000, through January 10, 20002. Alamo was discharged from the New York State Department of Correctional Services, having competed his state sentences, on September 10, 2004.
FN 2. Alamo states, and the copy of the judgment attached to the Petition in Civil No. 06-2555 (JBS) confirms, that this sentence was imposed for an incident that occurred while Alamo was in state custody, for Promoting Prison Contraband. It indisputably is not related to the federal charges.
Alamo began serving his federal sentence on that date. He was awarded prior custody credit from May 15, 1999, through December 7, 2000, because the state had not credited to his state sentence the time during which [Alamo] was subject to the writ of habeas corpus ad prosequendum.
Alamo sought credit against his federal sentence for the time when he was in state custody, to give effect to the state judges' statements that his state sentences should run concurrently to his federal sentence.
The BOP denied Alamo's request for credit as to any time that had already been credited against his state sentence. The BOP alternatively considered the request for credit a request for nunc pro tunc designation, which was referred to the Northeast Regional Office. By letter dated September 1, 2005, Regional Inmate Systems Administrator Fernando J. Messer advised Alamo that this request for a nunc pro tunc designation was denied.
Under Bureau policy, a designation for concurrent service of sentence should be made only when it is consistent with the intent of the sentencing court or with the goals of the criminal justice system.
Based upon a review of the above federal sentencing order, the application of the federal statutes, your past criminal history, and the discretion afforded to the Bureau of Prisons, the request for nunc pro tunc designation is denied.
Alamo, who was in federal prison in New Jersey at the time, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 with the District of New Jersey. On April 12, 2007, the District of New Jersey denied relief, concluding that the BOP had correctly calculated Alamo's sentence and did not abuse its discretion in denying Alamo's request that ...