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Rush v. Ortiz

United States District Court, D. New Jersey

May 17, 2018

BORN I. RUSH, Petitioner,
v.
WARDEN DAVID ORTIZ, Respondent.

          Born I. Rush, FCI Ft. Dix, Petitioner Pro se

          Elizabeth Ann Pascal Office of the United States Attorney, Counsel for Respondent

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Born I. Rush (“Petitioner”), a prisoner presently incarcerated at the Federal Correctional Institution at Fort Dix in Fort Dix, New Jersey, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (the “Petition”). ECF No. 1. Petitioner's sole grievance raised in the Petition is that he has been confined in excess of his maximum term because the Federal Bureau of Prisons failed to calculate correctly his federal sentence, which he alleges does not account for time spent in state custody on a federal detainer. ECF No. 1, Pet. at 2. By order of Court, Respondent filed an Answer to the Petition (the “Answer”). ECF No. 3. Petitioner filed a reply to the Answer (the “Reply”). ECF No. 6. The Petition is ripe for disposition. For the reasons stated below, the Petition will be denied.

         I. BACKGROUND

         Petitioner files this Petition pursuant to 28 U.S.C. § 2241 in order to secure his release from the custody of the Federal Bureau of Prisons (“BOP”). ECF No. 1, Pet. at 1. As to his only ground for relief in this Petition, Petitioner states that he is unlawfully confined in excess of his maximum term because the BOP failed to apply properly credit to his federal sentence for time spent in state custody. Id. At the outset, Petitioner admits that he had previously filed a § 2241 petition with the Court raising the same issue, which was denied with prejudice on September 22, 2015. See No. 13-cv-4788, ECF Nos. 8 (opinion) and 9 (order). Petitioner alleges that his prior petition was “inartfully” pled and that he lacked the documentation needed to support it. No. 17-cv-2459, ECF No. 1, Pet. at 2.

         On March 24, 2009, while on New Jersey state parole for an unspecified conviction, Petitioner was arrested by state authorities and charged with unlawful possession of a handgun. Id. at 3. Petitioner posted bail on February 25, 2009, regarding the handgun offense, but was then incarcerated on a parole violation warrant that same day; the possession of the handgun was a violation of his parole. Id.

         The handgun charges on which Petitioner had posted bail, N.J. No. W2009-345, were transferred from the Municipal Court to the Monmouth County Superior Court and upgraded on March 24, 2009, N.J. No. 2182-11-09, with bail now set at $500, 000. ECF No. 3, Ans. at 6-7; ECF No. 4, Decl. at 4. After service of his parole violation incarceration ended on June 29, 2009, Petitioner remained incarcerated because of the criminal charges pending in N.J. No. 2182-11-09, for which he had not posted bail. Id.

         During his confinement on his parole violation, a federal indictment was filed against Petitioner on March 12, 2009. No. 09-cr-174, ECF No. 1 (D.N.J.). On August 5, 2009, a federal detainer for the indictment was lodged against Petitioner. No. 09-cr-174, ECF No. 15. On January 24, 2011, the Petitioner was sentenced on his federal charges. No. 09-cr-174, ECF No. 39 (minute entry). The sentencing court's judgment of conviction was silent as to whether the federal sentence should run concurrently with any state sentence. See No. 09-cr-174, ECF No. 40. Petitioner remained in state custody after the federal sentencing.

         On December 23, 2011, Petitioner was sentenced for the upgraded charges in N.J. No. 2182-11-09. No. 17-cv-2459, ECF No. 1, Pet. at 6. The state court issued a second sentencing order dated March 9, 2012, to order Petitioner's state sentence to run concurrently to his federal sentence. Id. at 7. Petitioner completed service of his state sentence on March 13, 2012, at which point the federal authorities took Petitioner into custody for service of his federal sentence. Id. Petitioner is presently incarcerated on his federal sentence.

         Petitioner alleges that the BOP gave him no time credit for the time he spent in prison on his state sentence. Id. Petitioner states he exhausted his administrative remedies, and then challenged his sentence computation in this Court, No. 13-cv-4788. According to Petitioner, in the prior § 2241 matter, the government's answer failed to provide the correct chronological sequence of events, which would demonstrate that Petitioner should have been in primary federal custody after the expiration of his first state sentence on his parole violation and he would have then been entitled to credit for the time he spent incarcerated under the federal indictment but in state custody. Id. at 8. Petitioner states that the prior § 2241 petition was denied because the Court noted that “Petitioner does not offer any evidence to support the allegation that he was paroled on June 12, 2009.” Id. at 9. A lack of documentation, he alleges, led to this Court finding that “Petitioner remained in state custody from the time of his arrest on February 24, 2009 to the time he was discharged from state custody on March 13, 2012.” Id. at 9-10.

         Petitioner alleges that he was released from the parole violation on June 29, 2009. Id. at 5. Thus, as of June 29, 2009, the Petitioner argues that he should have been in federal custody as his primary custodian. Id. at 10. Petitioner includes as an exhibit to his Petition a document to demonstrate that he made bail on his state handgun charges on February 25, 2009. See ECF No. 1, at 15. Petitioner states that this exhibit is the evidence he lacked in his prior § 2241 proceeding that demonstrates that he should have been in federal custody after service of his parole violation was completed on June 29, 2009.

         In the Answer, the Respondent explains how the BOP calculated Petitioner's federal sentence:

In accordance with BOP Program Statement 5880.28, Sentence Computation Manual (CCCA-1984), and 18 U.S.C. § 3585(a), the BOP computed Petitioner's 96-month federal sentence as commencing on March 13, 2012, the date he was paroled from his New Jersey State sentence to the federal detainer. He received no prior custody credit under 18 U.S.C. § 3585(b), because all the time Petitioner served between the date ...

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