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Carlos Alamo v. Eric Holder

September 9, 2011

CARLOS ALAMO, PETITIONER,
v.
ERIC HOLDER, ET AL., RESPONDENTS.



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

OPINION

This matter is before the Court on the application of petitioner, Carlos Alamo, for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the petition will be denied.

I. BACKGROUND

Petitioner, Carlos Alamo ("Alamo"), brings this petition for a writ of habeas corpus under 28 U.S.C. § 2241, against the following federal official respondents: Eric Holder, United States Attorney General; and Donna Zickefoose, Warden at FCI Fort Dix, where Alamo is presently confined. (Complaint, Caption). The petition initially was filed by Alamo in the United States District Court for the Southern District of New York, receiving the docket no. 11-civ-0049 (LAP). It was submitted as a motion pursuant to 28 U.S.C. § 2255, however, the application clearly was challenging the Bureau of Prisons' ("BOP") calculation of petitioner's sentence. In an Order issued on January 5, 2011, the Honorable Loretta A. Preska, Chief Judge for the Southern District of New York, found that Alamo's application before the court should be construed as a petition under 28 U.S.C. § 2241. Chief Judge Preska also noted that the petition appeared to be filed in the wrong court. Accordingly, Alamo was directed to notify the court if he intended to withdraw the application, and if not, to file an amended petition detailing his claims and the steps he had taken to fully exhaust his administrative remedies, or alternatively, show that available remedies were inadequate. (See January 5, 2011 Order at docket entry no. 3).

Alamo filed an amended petition on or about February 14, 2011. (Docket entry no. 4). On February 23, 2011, Chief Judge Preska entered an Order, which found that petitioner had filed an amended petition indicating his intention of pursuing relief under § 2241. The court further found that, "[b]ecause Petitioner challenges the BOP's execution of his sentence, jurisdiction for this Petition lies in the District of New Jersey," pursuant to Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004). Accordingly, the matter was transferred to the United States District Court for the District of New Jersey. (See Docket entry no. 8).*fn1 Alamo paid the $5.00 filing fee on May 16, 2011.

On or about April 8, 2011, Alamo wrote to the Court, attaching a copy of the sentencing minutes for petitioner's state court sentence. (Docket entry no. 10). Alamo wrote several more letters to the Court, inquiring as to the status of his case and complaining that he is being held as a "hostage." (See April 20, 2011 docket entry no. 11 and May 25, 2011 docket entry no. 12). On August 12, 2011, Alamo wrote to the Court asking for appointment of counsel to explain the Court's recent Order denying reconsideration in an earlier matter, Alamo v. Samuel, Civil No. 06-2555 (JBS). (Docket entry no. 13). He also asked that the his motion to void judgment and grant summary judgment be filed in this action. The motion was docketed in this action on August 23, 2011. (See Docket entry no. 14).

Mr. Alamo is familiar to this Court. He has filed two earlier actions in this District Court, Alamo v. Samuel, Civil No. 06-2555 (JBS) and Alamo v. Holder, et al., Civil No. 10-372 (JBS), where he sought the identical relief that he again repeats in this matter. Both earlier actions were denied.

The factual background in this action was set forth in this Court's prior Opinion in Civil No. 06-2555 (JBS), and is now reiterated here for convenience sake. 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 York sentencing Alamo to a term of imprisonment of 151 months. See United States v. Alamo, Criminal Action No. 99-0478-JSM-2 (S.D.N.Y.). 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 attached to Alamo's recent letter to this Court, (docket entry no. 10), 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 indicates 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, 2002. Alamo was discharged from the New York State Department of Correctional Services, having completed his state sentences, on September 10, 2004.

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 petitioner 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 a nunc pro tunc designation, which was referred to the Northeast Regional Office. By letter dated September 1, 2005, Regional Inmate Systems Administrator ...


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