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Richard Lozano v. Mark Kirby

May 6, 2011

RICHARD LOZANO, PETITIONER,
v.
MARK KIRBY,
RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon Petitioner's filing of an application seeking habeas relief, pursuant to 28 U.S.C. § 2241 ("Petition"), and it appearing that:

1. Petitioner filed his Petition asserting erroneous calculation of good-conduct-time credits ("GCTs") by the Federal Bureau of Prisons ("BOP"). See id.

2. The Petition and the exhibits attached to it paint the following picture:*fn1

a. In 2007, Petitioner was convicted to ten-year term of federal imprisonment by the United States District Court for the Eastern District of New York ("EDNY").

b. At that point, Petitioner was about to be sentenced and begin serving his three-year state sentence or, in alternative, he was already sentenced to and serving that three-year state prison term.

c. Shortly thereafter, Petitioner requested the BOP to find that Petitioner's 3-year state and 10-year federal sentences were imposed to run concurrently. The BOP reviewed Petitioner's application and denied his request, finding that the sentences should run consecutively, with the federal sentence being triggered upon Petitioner's release from his 3-year state sentence.

d. That determination caused Petitioner to move, on August 25, 2008, before the EDNY for reduction of his federal sentence so Petitioner's 3-year state prison term would effectively be subtracted from Petitioner's 10-year federal sentence.

e. In response to Petitioner's motion, his federal sentencing judge held a hearing on May 1, 2009, and --- same day --- granted Petitioner's request, re-sentencing Petitioner to federal prison term of 7 years that superceded Petitioner's 10-year federal term.

f. Although Petitioner's wish for serving, on his state and federal sentences, a total of ten years was satisfied, Petitioner now had only the chance to get GCT credits available to him under the newly-imposed 7-year federal sentence (rather than the GCT credit that might have been available to him under the now-invalidated 10-year federal sentence).

g. Believing that he should have received GCT credits applicable to his now-invalidated 10-year federal sentence, Petitioner moved, on June 30, 2010, before the EDNY seeking grant of the GCT credits that he might have had under the old sentence. The EDNY denied his motion.

h. Petitioner then filed an administrative grievance with the BOP asserting that he should be given GCT credits for the period of 3-years during which he was serving his state sentence.

i. Since the BOP was effectively presented, simultaneously, with two requests from Petitioner, i.e., (i) to grant Petitioner an opportunity to earn GCT credits for the three-year difference between Petitioner's original 10-year federal sentence and his superceding 7-year federal sentence; and (ii) to grant Petitioner credit for the now-long-served three-year state sentence, the BOP responded to Petitioner with an answer that addressed both these issues. With regard to the first request, the BOP explained to Petitioner that he could not receive GCT credits for the period he would not serve, i.e., that, once Petitioner's federal sentence was changed from 10 years to 7 years, the maximum amount of GCT credits that Petitioner could earn became that applicable to a 7-year term. Construing Petitioner's second request as an application to designate Petitioner's service of his state sentence as his service of his current, 7-year federal term, the BOP declined Petitioner's application finding --- same as it did the year before -- that Petitioner's state and federal sentences should have run consecutively. With regard to this latter inquiry, the BOP conducted an applicable statutory analysis and relied on Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990).

j. The BOP's response prompted Petitioner's filing of the instant Petition. The Petition indicates, in no ambiguous terms, that Petitioner was seeking from the BOP and is now requesting from this Court availability of the GCT credits that Petitioner could have earned under his old, now-invalidated 10-year federal sentence. The Petition also makes apparent that Petitioner was confused by the format of the BOP response since Petitioner developed an impression that the statutory analysis relevant to the inquiry addressed in Barden was, somehow, factored into the BOP's decision to deny him GCT credits. However, while not written with exemplary clarity, the BOP's response clearly ...


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