The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
RODRIGUEZ, Senior District Judge:
Hector Santiago ("Petitioner"), an inmate incarcerated at FCI Fairton in New Jersey, filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, challenging the duration of his confinement on a federal sentence. Santiago challenges the failure of the Bureau of Prisons ("BOP") to grant him prior custody credit under 18 U.S.C. § 3585(b) for the 13 months he was on bail prior to commencement of his sentence. Alternatively, he argues that, if the BOP properly denied prior custody credit for this period, then this Court should grant him the credit because his guilty plea was unconstitutional where he was not advised prior to entry of the plea that the 13 months he spent on bail would not be credited to his federal sentence by the BOP. This Court will summarily dismiss the Petition. However, this Court will give Santiago 45 days to notify the Court if he agrees to have the challenge to the plea recharacterized as a motion under 28 U.S.C. § 2255 and, if so, to withdraw same and file an all-inclusive § 2255 motion.
On September 14, 2007, the United States filed a criminal complaint in this District charging Santiago with conspiracy to distribute heroin and distribution of heroin, in violation of 21 U.S.C. §§ 841(a), (b)(1)(B) and 846. See United States v. Santiago, Crim. No. 08-0478 (JHR) (D.N.J. filed July 9, 2008). On the same date, United States Magistrate Judge Ann Marie Donio signed a warrant for his arrest; on September 19, 2007, federal officials arrested Santiago. On September 20, 2007, United States Magistrate Judge Joel Schneider ordered that Santiago be detained pending trial in accordance with the Bail Reform Act, 18 U.S.C. § 3142(f). On September 25, 2007, Santiago filed a motion for pretrial release on conditions pursuant to 18 U.S.C. § 3142(c). By Order filed September 26, 2007, Judge Schneider ordered Santiago released on a $50,000 bond secured by 10% cash, to reside at his home with his wife and children. On July 9, 2008, Santiago pled guilty to count one pursuant to a plea agreement. On September 5, 2008, by consent, Santiago was ordered to continue to participate in a home confinement program, to obtain verifiable employment, and to remain in his residence from 7:00 p.m. to 8:00 a.m., or as directed by the pretrial services office or supervising officer. On October 14, 2008, this Court sentenced Santiago to imprisonment for a term of 160 months.
On March 16, 2009, Santiago filed a motion to vacate the judgment entered October 17, 2008, pursuant to 28 U.S.C. § 2255. See Santiago v. United States, Civ. No. 09-1334 (JHR) (D.N.J. filed Mar. 23, 2009). He argued: (1) counsel was constitutionally ineffective at sentencing because counsel misinformed him about a material element of the plea agreement, failed to object to the career offender enhancement and effectively conceded same, and did not understand application of the Sentencing Guidelines; (2) counsel was constitutionally ineffective in failing to file a notice of appeal of the sentence; (3) the sentencing court failed to comply with Rule 32 of the Federal Rules of Criminal Procedure; and (4) counsel was constitutionally ineffective in advising Santiago prior to entry of the plea that, if he pled guilty, he would receive a sentence between 70 and 87 months. After conducting an evidentiary hearing on the issue of whether Santiago requested his lawyer to file a notice of appeal, by Order entered September 30, 2009, this Court found that Santiago had asked counsel to file an appeal from the sentence and ordered that the time to file an appeal be extended for 10 days from September 30, 2009. Santiago appealed. On January 21, 2010, the government filed an uncontested motion before the Court of Appeals for summary remand based on controlling precedent issued subsequent to sentencing, see United States v. Vazquez-Lebron, 582 F. 3d 443 (3d Cir. 2009). On February 19, 2010, the Court of Appeals granted the motion. By judgment entered April 28, 2010, this Court re-sentenced Santiago to a term of 84 months.
In the meantime, Santiago self-surrendered to the BOP on November 25, 2008, for service of his sentence. On December 13, 2010, Santiago submitted an informal administrative request for credit against his federal sentence for the 13 months he was released on bond. After the Warden denied his administrative remedy request, Santiago appealed to the Regional Office of the BOP, which denied the appeal on April 14, 2011, on the ground that Santiago was not entitled to prior custody credit under § 3585(b) while released. (Dkt. 1 at 25.) Santiago appealed to the Central Office. On June 17, 2011, Harrell Watts, Administrator of National Inmate Appeals, denied the appeal:
This is in response to your Central Office Administrative Remedy Appeal in which you request prior custody credit for time spent on home confinement prior to your federal sentence.
Our review reveals the responses of the Warden and Regional Director adequately addressed the issues raised in your appeal. The time which you are requesting be credited to your federal sentence was not spent in "official detention" as defined under Program Statement 5880.28, Sentence Computation Manual CCCA. In Reno v. Koray, 115 S. Ct. 2021 (1995), the Supreme Court upheld the interpretation of the Bureau of Prisons that time spent on home confinement under conditions of release was not "official detention" under 18 U.S.C. § 3585(b).
Your federal sentence has been computed as directed by federal statute and Program Statement 5880.58. (Dkt. 1 at 28.)
On August 25, 2011, while incarcerated at FCI Fairton, Santiago filed the § 2241 Petition presently before this Court. The Petition raises two grounds. Santiago argues: (1) the BOP violated 18 U.S.C. § 3585(b) by failing to grant him prior custody credit for the 13 months he was released on bail (from September 26, 2007, through November 24, 2008) because home confinement is tantamount to official detention; and (2) the guilty plea was unconstitutional because Santiago was not advised prior to entry of the plea that this 13 months could not be credited to his sentence by the BOP. He seeks an order reducing his sentence by 13 months and/or directing the BOP to grant him prior custody credit for the 13 months.
"Habeas corpus petitions must meet heightened pleading requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). Habeas Rule 2(c) requires a § 2254 petition to "specify all the grounds for relief available to the petitioner," "state the facts supporting each ground," "state the relief requested," be printed, typewritten, or legibly handwritten, and be ...