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Hotton v. Ortiz

United States District Court, D. New Jersey

June 24, 2019

MARK C. HOTTON, Petitioner,
v.
DAVID ORTIZ, et al., Respondents.

          MARK C. HOTTON, PETITIONER PRO SE

          ANNE B. TAYLOR, ESQ. JOHN ANDREW RUYMANN, ESQ. OFFICE OF THE U.S. ATTORNEY COUNSEL FOR RESPONDENTS

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner 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 jurisdiction.

         I. BACKGROUND

         On 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 Petitioner's bail was revoked on October 17, 2013, and he was remanded back to custody.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.).

         On 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.

         Five 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.

         In the 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.

         Petitioner 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. 74 (S.D.N.Y.).

         The 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.).

         II. STANDARD OF REVIEW

         Title 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 ...

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