United States District Court, D. New Jersey
MARK C. HOTTON, Petitioner,
DAVID ORTIZ, et al., Respondents.
C. HOTTON, PETITIONER PRO SE
B. TAYLOR, ESQ. JOHN ANDREW RUYMANN, ESQ. OFFICE OF THE U.S.
ATTORNEY COUNSEL FOR RESPONDENTS
L. HILLMAN, U.S.D.J.
Mark C. Hotton, a prisoner presently confined at the Federal
Correctional Institution (“FCI”) at Fort Dix in
Fort Dix, New Jersey, filed this Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241, challenging the
calculation of his sentence. ECF No. 1. Respondent filed a
Motion to Dismiss the Petition in which he argues that the
Petition should be dismissed for lack of jurisdiction. ECF
No. 5. Petitioner filed an opposition to the Motion, ECF No.
8, and Respondent filed a reply, ECF No. 9. The Motion is now
ripe for disposition. For the reasons that follow, the Court
will grant the Motion and dismiss the Petition for lack of
October 12, 2012, a criminal complaint was filed in the U.S.
District Court for the Southern District of New York charging
Petitioner with wire fraud. See No. 12-cr-825, ECF
No. 1 (S.D.N.Y.). Petitioner was arrested by warrant on
separate charges in the U.S. District Court for the Eastern
District of New York and taken into federal custody on
October 15, 2012. See No. 12-cr-649, ECF No. 15
(E.D.N.Y.). Petitioner was released on bond on both the
Eastern and Southern District charges on July 31, 2013.
See No. 12-cv-649, ECF No. 81 (E.D.N.Y.).
Petitioner's bail was revoked on October 17, 2013, and he
was remanded back to custody. See No 12-cr-649, ECF
No. 102 (E.D.N.Y.).
October 10, 2014, Petitioner was sentenced in the Southern
District of New York to a term of 34 months of imprisonment
for wire fraud in violation of 18 U.S.C. § 1343 as well
as three years of supervised release upon release from
prison. See No. 12-cr-825, ECF No. 61 (S.D.N.Y.).
All prior custody credit (October 12, 2012 to July 31, 2013,
and October 17, 2013 to October 9, 2014) was applied to the
Southern District sentence. See ECF No. 5-3, BOP
Sentence Computation Data. Including good conduct time,
Petitioner was released from his 34-month sentence on June
20, 2015. Id.
days later, on June 25, 2015, Petitioner was sentenced in the
Eastern District of New York to a term of 135 months'
imprisonment for conspiracy to commit money laundering in
violation of 18 U.S.C. § 1956(a)(1)(A)(i) and §
1956(h). See No. 12-cr-649, ECF No. 231 (E.D.N.Y.).
His Eastern District sentence commenced on the date of
sentencing, and he was awarded prior custody credit from June
21, 2015 (the day after release from his Southern District
sentence) to June 24, 2015 (the day prior to the sentencing
for his Eastern District case). See ECF No. 5-3.
Petitioner's projected release date, assuming he receives
all good conduct time, is May 3, 2025 for the Eastern
District sentence. See id.
Petition filed on July 12, 2018, Petitioner argues that (1)
the BOP misapplied his prior custody credit to his Southern
District sentence, and that application of his prior custody
credit should have been split between his Southern and
Eastern District sentences, and (2) had the BOP split the
prior custody credit as he describes, the Eastern District
sentencing judge should have properly applied U.S. Sentencing
Guideline § 5G1.3 to run his sentences concurrently.
See ECF No. 1.
previously raised these arguments in both the Eastern and
Southern Districts of New York. In the Southern District of
New York, the Government opposed Petitioner's
“Motion to Correct Mistake or Omission per Federal
Rules of Criminal Procedure Rule 36 & 18 U.S.C. §
3584(a) & (b).” See No. 12-cr-825, ECF No.
71 (S.D.N.Y.). The Government argued that the Southern
District lacked jurisdiction to consider the motion because
Petitioner's Southern District sentence was discharged
before the imposition of his Eastern District sentence such
that there was no “concurrency” that could have
been imposed. See id. The Southern District reviewed
the motion and briefs, determined that Petitioner's issue
was properly heard by the Eastern District, and transferred
the motion to that court. See No. 12-cr-825, ECF No.
transferred materials were docketed in the Eastern District
of New York on January 2, 2018. See No. 12-cr-649,
ECF No. 313 (E.D.N.Y.). The transferred motion was nearly
identical to one Petitioner had already filed in that court
on October 23, 2017. Compare No. 12-cr-649, ECF No.
296, with ECF No. 313. In his October 23, 2017
motion, Petitioner asked the sentencing court to make his
Eastern District sentence concurrent with his Southern
District sentence pursuant to an application of § 5G1.3.
See No. 12-cr-649, ECF No. 296 (E.D.N.Y.). On
November 22, 2017 the Government responded in opposition,
relying upon the facts that the two convictions were for
separate conduct, the Southern District sentence was
discharged before Petitioner was sentenced in Eastern
District, and any such challenge had to have been brought on
direct appeal. See No. 12-cr-649, ECF No. 303
(E.D.N.Y.). Separately, Petitioner has filed a motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
2255 in the Eastern District, in which he alleges ineffective
assistance of counsel. To date, the Eastern District has
taken no action on Petitioner's motions. See
generally No. 12-cr-649 (E.D.N.Y.).
STANDARD OF REVIEW
28, Section 2243 of the United States Code provides in
relevant part as follows:
A court, justice or judge entertaining an application for a
writ of habeas corpus shall forthwith award the writ or issue
an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application