United States District Court, D. New Jersey
BORN I. RUSH, Petitioner,
WARDEN DAVID ORTIZ, Respondent.
I. Rush, FCI Ft. Dix, Petitioner Pro se
Elizabeth Ann Pascal Office of the United States Attorney,
Counsel for Respondent
L. HILLMAN, U.S.D.J.
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.
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.
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
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.
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.
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
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
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.
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 ...