Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ortiz v. Breckon

United States District Court, N.D. New York

January 22, 2018

NATHANIEL ORTIZ, Petitioner,
v.
WARDEN BRECKON, Respondent.

          DECISION AND ORDER

          Lawrence E. Kahn, U.S. District Judge

         I. INTRODUCTION

         Petitioner Nathaniel Ortiz, presently in the custody of the Federal Bureau of Prisons (“BOP”), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the BOP's computation of his sentence. Dkt. Nos. 1 (“Petition”), 1-1 (“Memorandum”). Respondent Warden Breckon opposes the Petition, Dkt. Nos. 10 (“Response”), 10-1 to -14 (“Exhibits”), and Petitioner filed a reply, Dkt. No. 12 (“Reply”). For the reasons that follow, the Petition is denied.

         II. BACKGROUND

         On June 6, 2008, Petitioner was sentenced to nine years' imprisonment following his conviction for attempted murder in the second degree in the New York State Supreme Court, Bronx County. Response at 1; Dkt. No. 10-3 (“Exhibit B”). On July 3, 2008, Petitioner was temporarily transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum to answer unrelated federal criminal charges. Dkt. No. 10-1 (“Johnson Declaration”) ¶ 7; Dkt. No. 10-6 (“Exhibit E”) (Judgment, United States v. Ortiz, No. 08-CR-548-01 (S.D.N.Y. Nov. 11, 2009), ECF No. 200).[1]

         On October 28, 2009, the Honorable Denny Chin, then-United States District Judge of the Southern District of New York, sentenced Petitioner to life imprisonment following his conviction for conspiracy to distribute and possess with intent to distribute “crack” cocaine and a related firearm charge. Johnson Decl. ¶ 8; Ex. E; Dkt. No. 10-9 (“Exhibit H”) at 2-3. The federal judgment did not state whether his life sentence would run consecutively or concurrently with his nine year state sentence, but the court recommended that Petitioner “be returned to the state facility to complete his state sentence” and “be designated to a facility in the North East region to serve his federal sentence.” Ex. E at 3. New York State authorities retained primary jurisdiction over Petitioner while he was in federal custody pursuant to the writ, and the United States Marshals Service returned him to state custody after his federal proceedings to continue service of his state sentence. Johnson Decl. ¶ 8. On December 3, 2015, Petitioner was released on parole from the New York State Department of Corrections and Community Supervision (“DOCCS”) to the Marshals Service to commence his federal sentence. Id. ¶ 9. Service of his federal life sentence was computed as commencing on that date. Id. ¶ 10.

         In April 2012, before he completed serving his state sentence, Petitioner filed a motion in the Southern District pursuant to 18 U.S.C. § 3582, requesting that the court (1) re-sentence him under the Fair Sentencing Act to a term of 360 months' incarceration, and (2) order that his federal sentence run concurrent to his state sentence. Ex. H; Mot., Ortiz, No. 08-CR-548 (S.D.N.Y. Apr. 16, 2012), ECF No. 274. Judge Chin granted Petitioner's motion to reduce his sentence to 360 months' imprisonment, but denied his request to order that the sentence run concurrent to his state sentence. Ex. H at 7.

         III. THE PETITION

         On July 27, 2016, Petitioner requested “time credit under ‘nunc pro tunc' status” for the time during which he was temporarily held in federal custody to answer to his federal charges by filing a request for administrative relief. Mem. at 4, 7. On July 28, 2016, Petitioner's request was denied because, during that period, he was “technically ‘in service' of [his] New York State sentence, and policy prohibits applying such credit when the time is applied towards another sentence.” Id. at 7. Petitioner appealed the determination and, on February 23, 2017, the appeal was denied because “[t]he sentencing Court has been clear in its intent that [his] federal sentence be served consecutively to [his] state term.” Id. at 10.

         Petitioner argues that, in denying his request for a nunc pro tunc designation of his state facility as his place of federal confinement, the BOP abused its discretion because it failed to consider the factors set forth in 18 U.S.C. § 3621(b). Pet. at 6; Mem. at 3-5; Reply at 2-4. He requests an order granting him “credit under nunc pro tunc status from the date [o]n which he was transferred to a federal facility MCC New York [on] July 7, 2008[, ] up until the time he was released from state custody to federal custody, ” or, in the alternative, “credit from July 7, 2008, up until December 9, 2009.” Mem. at 5. Respondent argues that, because Judge Chin ordered that Petitioner's federal sentence run consecutive to his earlier-imposed state sentence, he was not entitled to a nunc pro tunc designation. Response at 3-4. Additionally, Respondent argues that Petitioner already received credit against his state sentence for the time during which he was temporarily released to federal custody, precluding an award of prior custody credit for that time period. Id. at 4 (citing § 3585(b)).

         IV. DISCUSSION

         Habeas corpus relief is available if a prisoner is “in custody in violation of the Constitution or laws or treaties of the United States[.]” § 2241(c)(3). A petition is properly brought pursuant to § 2241 where a federal prisoner challenges the execution of his or her sentence, rather than the imposition of the sentence. Adams v. United States, 372 F.3d 132, 134-35 (2d Cir. 2004); Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001). Execution of a sentence includes, among other things, the computation of the sentence, and thus a § 2241 petition is the proper means to challenge the computation. Adams, 372 F.3d at 135 (citing Nash, 245 F.3d at 146).

         “The Attorney General, through the BOP, possesses the sole authority to make credit determinations pursuant to 18 U.S.C. § 3585(b)[.]” United States v. Whaley, 148 F.3d 205, 206 (2d Cir. 1998) (collecting cases). 18 U.S.C. § 3584(a) provides in part that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” This provision notwithstanding, the Second Circuit has held that the BOP has the authority, pursuant to 18 U.S.C. § 3621, to retroactively “designate the state facility in which the prisoner was serving his state sentence as the place of federal confinement-with the result that, if the BOP made such a designation, the prisoner's sentences would effectively run concurrently.” Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 75 (2d Cir. 2005) (citing McCarthy v. Doe, 146 F.3d 118, 122-23 (2d Cir. 1998) and Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990)); see also Setser v. United States, 566 U.S. 231, 235-36 & n.1 (2012) (explaining that although the federal sentencing judge has authority to determine whether sentences should run consecutively or concurrently pursuant to § 3584, § 3621(b) confers authority to the BOP to determine the facility in which a prisoner's federal sentence will be served, including nunc pro tunc designations either while the prisoner is in state custody or when he or she enters federal custody).[2] “The [BOP's] decision regarding nunc pro tunc designation is reviewed for abuse of discretion.” Jennings v. Schult, 377 F. App'x 97, 98 (2d Cir. 2010) (summary order) (citing McCarthy, 146 F.3d at 123 n.4).[3]

         The Court concludes that the BOP did not abuse its discretion in denying Petitioner's request to designate his state facility as his place of federal confinement, either for the duration of his state custody or for the period that he was temporarily transferred to federal custody. As noted above, the 2009 federal sentencing judgment is silent as to the manner in which Petitioner's federal sentence was to run relative to his state sentence. Ex. E. “If the district court's judgment is silent on this issue, the court's silence is construed as an intent to impose a consecutive sentence, and the federal sentence commences only when primary state custody over the defendant is relinquished.” Clapper v. Langford, 186 F.Supp.3d 235, 238 (N.D.N.Y. 2016) (Kahn, J.) (citing § 3584(a)); see also § 3584(a) (“Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.”)). Notably, in his May 30, 2013 order re-sentencing Petitioner to 360 months, Judge Chin explicitly denied Petitioner's request to order that his federal sentence run concurrent to his state sentence. Ex. H at 7. “[T]he BOP lacks . . . authority [to designate, nunc pro tunc, the state facility as a federal prison] when the federal sentencing court imposes sentence after the state and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.