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Martinez v. Nash

August 2, 2006

ROBERT LUIZ MARTINEZ A/K/A BERK,
v.
JOHN NASH, WARDEN, RESPONDENT. PETITIONER,



The opinion of the court was delivered by: Simandle, District Judge

OPINION

Petitioner ROBERT LUIZ MARTINEZ a/k/a BERK (hereinafter "Petitioner") currently confined at the Federal Correctional Institution (hereinafter "F.C.I."), Fort Dix, New Jersey, filed an application for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241 (hereinafter "Petition"), asserting that his parole eligibility date has been incorrectly determined by the Federal Bureau of Prisons. After Respondent submitted Respondent's Answer to the Petition (hereinafter "Answer") and pertinent record, Petitioner submitted his traverse (hereinafter "Traverse"), to which Respondent responded with Respondent's Reply (hereinafter "Reply").*fn1 Having thoroughly reviewed all documents submitted, the Court remands this matter to the Federal Bureau of Prisons (hereinafter "BOP") so the BOP would recalculate the date of Petitioner's parole eligibility in the fashion not inconsistent with the instant Opinion.

I. BACKGROUND

The issue at bar, concerning calculation of Petitioner's parole eligibility under a series of alternating parolable and non-parolable federal sentences, appears to be a novel matter not squarely addressed by any federal court. Since the case at bar, involving such series of alternating sentences, is further complicated by a pre-existing denial of parole with respect to one of Petitioner's sentences, the Court expressly limits its findings to the highly unusual situation presented by Petitioner's case.

A. Factual Framework

The facts at issue involve five distinct sentences, all of which were imposed under the United States Code; but only the first four sentences are of consequence to the issue at bar. See Pet. at 5; Ans. at 5-6. The first sentence, imposed on May 20, 1983, entailed a parolable five year term. See id. The second sentence, imposed on February 22, 1985, entailed a parolable three year term to be served consecutively with the first sentence. See id. The third sentence, imposed on March 27, 1987, entailed a non-parolable thirty-five year term to be served consecutively with the first and second sentences. See id. The fourth sentence, imposed also on March 27, 1987, entailed a parolable five year term to be served consecutively with the first, second and third sentences. See id. Finally, the fifth sentence, imposed on April 15, 1997, entailed a parolable one year term to be served concurrently with the sentence Petitioner was then serving; this sentence is of no consequence to the issue at bar due to its concurrent nature and the term shorter than that being served by Petitioner in 1997. See id.

Thus far, the United States Parole Commission (hereinafter "USPC") considered Petitioner for parole on only one occasion, that is, on November 23, 1983, when the USPC ordered Petitioner to serve his first (parolable) sentence (of 5 years) to the expiration.*fn2 See Ans. at 7, Ex. USPC-1. In 1986, after Petitioner's second parolable sentence was imposed, the USPC opened Petitioner's case in order to schedule a hearing with regard to Petitioner's second sentence but, upon learning about the imposition of Petitioner's third and fourth sentences, the USPC voided the opening of Petitioner's case until December of 2007; the December of 2007 time-frame was selected by the USPC on the basis of BOP's calculations with respect to Petitioner's parole eligibility. See id. Exs. USPC-2 and USPC-3.

B. Respondent's Calculation Model

Respondent's Answer sets forth the formula employed by the BOP in calculation of Petitioner's parole eligibility.*fn3 If the mathematics of various adjustments, such as jail time or good time credits, etc. (which are not in dispute), inconsequential to the issue at bar, are factored out, it appears that the BOP aggregated Petitioner's four consecutive sentences into the total of forty-eight years, that is, the sum of the first four sentences added together. See Ans. at 13. Then, for the purposes of parole eligibility, the BOP sorted these forty-eight years into three temporal parcels: (a) "the initial aggregated 8 year portion, from which [Petitioner] was not paroled . . . and which has expired," that is, the first sentence of 5 years plus the second sentence of 3 years; (b) "the 35 year non-parolable portion . . . which [Petitioner] is presently serving" resulting from his third sentence; and (c) "the remaining . . . five year[s]" resulting from the fourth sentence. Id. at 14. Adding the first parcel of 8 years to the second parcel of 35 years, the BOP arrived to the total of 43 years, hence setting Petitioner's parole eligibility date for the sum of parcels one and two at 43 years, as adjusted, from the first day of Petitioner's incarceration.*fn4

Id. at 15. Then, crediting part of the time that Petitioner already served under the first parcel against the minimum time that Petitioner should serve under the third parcel (consisting of the remaining fourth sentence of 5 years), the BOP arrived at the very same parole eligibility date, that is, 43 years, as adjusted, from the first day of Petitioner's incarceration.*fn5 Id. at 15-16.

Significantly, while the BOP styled the first parcel as "the initial aggregated 8 year portion [being the sum of 5 and 3 years], from which [Petitioner] was not paroled . . . and which has expired," id. at 14, nothing in Respondent's Answer indicates that Petitioner was actually denied parole with respect to the entire period of 8 years. Rather, Respondent's Answer and supporting record indicate that: (a) Petitioner was expressly denied parole only with respect to his first (parolable) sentence (of 5 years), see id. at 7; Response at 1-2; (b) the USPC did not reach any decision one way or the other with respect to Petitioner's second (parolable) sentence (of 3 years), see Ans. at 7-9; but (c) the BOP, on its own volition, presumed that Petitioner was not paroled from his second parolable sentence. See Ans. at 14-15.

C. Petitioner's Challenge

While the language used by Petitioner to set forth Petitioner's claim merely asserts that Petitioner had his procedural due process rights violated by being deprived of "interim parole hearings," see, e.g., Pet. at 12, Respondent discerns--and this Court agrees---that the gist of Petitioner's claim, subtly scattered among pages of Petitioner's multiple submissions, has little relevance to violation of Petitioner's due process rights.*fn6 Rather, it appears that Petitioner is challenging BOP's calculation of the date of Petitioner's parole eligibility, asserting that his series of alternating parolable and non-parolable sentences makes Petitioner parole eligible much sooner than 43 years after the first day of Petitioner's incarceration. See Pet. at 6, 17-19 (setting forth the period of 18 years and 5 months); Traverse at 2. Specifically, Petitioner asserts the following:

1. "Parole Commission's own regulations . . . require that consecutive sentences be aggregated [and these multiple sentences should] be [treated as] one term." Pet. at 14. Therefore, all Petitioner's parolable and non-parolable sentences should be aggregated into one sentence. See id.

2. Once consecutive sentences are so aggregated, "[t]he U.S. Parole Manual [m]andates that the non-parolable portion of the [aggregated] sentence be served [f]irst." Id. at 6. Therefore, Petitioner's third sentence of 35 years, as adjusted, should be backdated to start at the first day of Petitioner's incarceration. See id.

3. Upon expiration of his non-parolable portion of the aggregated sentence, an inmate "[s]hould be eligible to see the [USPC] and obtain release date" for the remaining parolable portion of his sentence. Id. Therefore, Petitioner should be eligible for a parole hearing after 35 years, as adjusted, from the first day of Petitioner's incarceration.*fn7 See id.

4. "Since parolable and non-parolable sentences are aggregated [into one sentence], the [USPC should] credit [the period the inmate served under his non-parolable portion] to the parolable" portion. Id. at 6. Therefore, Petitioner's nonparolable 35 years, as adjusted, should be credited against the sum of Petitioner's parolable sentences. See id. at 6, 15-18 (on the basis of Petitioner's reading of Chatman-Bey v. Meese, 797 F.2d 987 (D.C. App. 1986); Thomas v. Brennan, 961 F.2d 612 (7th Cir.1992); and Lyons v. Mendez, 303 F.3d 285 (3d Cir. 2002)).

II. STANDARD OF REVIEW

A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d ...


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