United States District Court, D. Minnesota
Tomas Lorenzo Perez, pro se.
D. Gerald Wilhelm, Assistant United States Attorney, Minneapolis, MN, on behalf of Respondent B.R. Jett.
ORDER ADOPTING REPORT AND RECOMMENDATION
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for a ruling on Petitioner Tomas Lorenzo Perez's Objection [Docket No. 17] to Magistrate Judge Janie S. Mayeron's November 21, 2014 Report and Recommendation [Docket No. 15] ("R&R"). In the R&R, Judge Mayeron recommends denying Petitioner's petition for a writ of habeas corpus and dismissing this case with prejudice. After a de novo review of the record, and for the reasons stated below, the Court overrules Petitioner's Objection, modifies the R&R as to the basis for dismissal, and dismisses the Petition without prejudice based on lack of subject matter jurisdiction.
The complete background of this case is throughly detailed in the R&R and is incorporated by reference. Briefly, Petitioner is an inmate at the Federal Medical Center in Rochester, Minnesota. Kelly Decl. [Docket No. 4] ¶ 3. In January 1999, he was sentenced in the United States District Court for the District of Puerto Rico following his conviction on two counts of conspiracy to commit hostage taking (Counts 1 and 2) in violation of 18 U.S.C. § 1203(a)-(b), and two counts of aiding and abetting the use of a firearm the commission of a crime of violence (Counts 3 and 5) in violation of 18 U.S.C. §§ 2, 924(c)(1). See Kelly Decl., Attach. B (Judgment). Federal law provides that a sentence for a violation under 18 U.S.C. § 924(c) must not run concurrently with any other term of imprisonment.
Petitioner was sentenced to 135 months as to each of Counts 1 and 2, to be served concurrently with each other, as well as 60 months as to Count 3 and 360 months as to Count 5, to be served consecutively to Counts 1 and 2. Id . The BOP calculated Petitioner's total sentence to be 555 months, which was computed by adding the 135 month term for Counts 1 and 2 to the 420 month term that was to run consecutively for Counts 3 and 5. See id., Attach. C (Sentence Monitoring Computation Data).
On September 1, 2001, the First Circuit vacated the imposition of consecutive terms of imprisonment for the § 924(c) violations under Counts 3 and 5, and ordered that the imprisonment terms on those counts shall run concurrently. Id., Attach. E (Relevant Portions of Opinion of First Circuit) at 38. The First Circuit stated in pertinent part:
Congress enacted subsection 924(c) principally as a sentencingenhancement mechanism for application to persons convicted of underlying crimes of violence committed through the use of firearms. Nevertheless, the imposition of consecutive sentences under subsection 924(c) for using multiple weapons during a single crime of violence would impinge upon fundamental "double jeopardy" principles.
Accordingly, we hold that the consecutive sentences imposed upon [Petitioner] for the two firearms convictions, involving but one hostage-taking, are to run concurrently.
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The imposition of consecutive terms of imprisonment upon [Petitioner] under Counts 3 and 5 is hereby vacated, and the prison terms on these counts shall run concurrently. In all other ...