Searching over 5,500,000 cases.

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.

Orellana v. Kirby

United States District Court, D. New Jersey

September 6, 2017

MARK A. KIRBY, Respondent.

          Maynor Miguel Oro Orellana, Petitioner Pro Se

          Caroline A. Sadlowski, AUSA United States Attorneys Office David Vincent Bober, AUSA Office Attorneys for Respondent Mark Kirby


          JEROME B. SIMANDLE U.S. District Judge


         This matter comes before the Court on Maynor Miguel Oro Orellana's petition for a writ of habeas corpus under 28 U.S.C. § 2241. Docket Entry 1. Respondent Mark Kirby argues the petition should be denied. Answer, Docket Entry 6. For the reasons stated below, the petition is denied with prejudice.


         On April 23, 2013, Petitioner was arrested in Texas for possession of marijuana and for engaging in an organized criminal activity. Declaration of Jeff R. Johnson (“Johnson Dec.”), Exhibit A ¶ 5.[1] Immigration Enforcement (“ICE”) lodged a detainer against Petitioner the next day. Id. ¶ 5(d). Petitioner was sentenced to six days imprisonment on the marijuana possession charge on April 25, 2013. Id. ¶ 5(e). The state court gave Petitioner three days of credit against his sentence, and Petitioner's sentence on the marijuana charges ended on April 28. Exhibit D. Petitioner was held on ICE's detainer between April 29 and May 14, 2013. September 15, 2016 Letter, Docket Entry 7. The organized criminal activity charges remained pending in the state courts.

         On May 15, 2013, a grand jury from the United States District Court for the Southern District of Texas (“Southern District”) charged Petitioner with illegal reentry by a previously deported alien after an aggravated felony conviction, 8 U.S.C. § 1326(a), (b)(2). Exhibit E. “According to the United States Probation Office in Houston, Texas, on April 15, 2009, [Petitioner] was convicted of aggravated assault with serious bodily injury . . . and sentenced to four years imprisonment. On April 4, 2012, [Petitioner] was deported, but he illegally reentered the United States on March 7, 2013.” Johnson Dec. ¶ 5(b). The Southern District issued a writ of habeas corpus ad prosequendum on May 21, 2013. Exhibit F. Petitioner first appeared before the district court on May 24, 2013 and pled guilty on June 17, 2013. Id.; Exhibit H. He was sentenced to a 50-month term of incarceration on September 16, 2013. Exhibit H. United States v. Orellana, No. 13-cr-0289-1 (S.D. Tx. Sept. 16, 2013). The district judge indicated “the sentence imposed takes into consideration and gives the defendant credit for the time he spent in ICE custody before he was transferred to federal custody.” Exhibit I at 10:20-23. Petitioner was then returned to the state in order to face his remaining state charges. Johnson Dec. ¶ 6(f).

         On January 6, 2014, Petitioner was sentenced to 8-months incarceration on the pending organized crime charges. Exhibit J. The state applied credit to Petitioner's sentence dating back to May 15, 2013, and Petitioner concluded his state sentence on January 9, 2014. Exhibit K at 2. He was held by the state until the U.S. Marshals took him into custody on January 16, 2014 to begin serving his federal sentence. Exhibit L; Exhibit G at 3. The Federal Bureau of Prisons (“BOP”) calculated Petitioner's federal sentence as beginning on January 16, 2014 and gave him prior custody credit for January 10 to 15, 2014. Exhibit M at 2-3. It projected Petitioner's release date as August 26, 2017. Id. at 3.

         After seeking relief via administrative remedy, [2] Petitioner filed this § 2241 petition arguing the BOP improperly denied him jail credits for time spent in federal custody, and that his trial attorney failed to provide the proper documentation to the State of Texas “and as a consequence the State of Texas did not dismiss my [state] case . . . and my [state] case was not run concurrent” with his federal sentence. Petition ¶ 13. The Court reviewed the petition under the Rule 4 of the Rules Governing Habeas Proceedings and dismissed the ineffective assistance of counsel claim as it lacked jurisdiction over that claim in a § 2241 petition. It directed Respondent to answer the claim that the BOP miscalculated Petitioner's jail credits. Opinion and Order, Docket Entries 5 & 6.

         Respondent filed its answer on September 15, 2016, but requested a brief extension to look into whether Petitioner was entitled to credit for the time spent in ICE's custody from April 29 to May 14, 2013. Answer; September 15, 2016 Letter. The Court granted the extension of time, and Respondent informed the Court on November 10, 2016 that it had determined Petitioner was entitled to credit for that time. Supplemental Answer, Docket Entry 12. It stated the BOP had recalculated Petitioner's sentence to end on August 8, 2017. Id. Petitioner did not file any traverse.

         III. ANALYSIS

         Section 2241 “confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence.” Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). This Court has jurisdiction under § 2241 to consider a claim that the BOP has miscalculated a sentence. See Blood v. Bledsoe, 648 F.3d 203, 206 (3d Cir. 2011), cert. denied, 132 S.Ct. 1068 (2012); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242 (3d Cir. 2005).

         Petitioner argues he is entitled to credit on his federal sentence for time spent in custody between April 23, 2013 and January 15, 2014. He states the BOP only credited him the time between January 10 and 15 instead of the full amount. Petition ¶ 13. “In calculating a federal sentence, the BOP first determines when the sentence commenced and then determines whether the prisoner ...

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.