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Martinez v. Paul

United States District Court, D. Minnesota

May 28, 2019

JOSE MONSERRATO MARTINEZ, Jr., Petitioner,
v.
WARDEN DAVID PAUL, Respondent.

          Jose Monserrato Martinez, Jr., Reg No. 13080-030, pro se petitioner.

          Erica H. MacDonald, United States Attorney, and Bahram Samie, Assistant United States Attorney, for respondent.

          ORDER

          JOHN R. TUNHEIM CHIEF JUDGE

         On May 7, 2018, Jose Monserrato Martinez, Jr. brought this 28 U.S.C. § 2241 Petition for a Writ of Habeas Corpus. (Petition, May 7, 2018, Docket No. 1.) Martinez argues that the Bureau of Prisons (“BOP”) abused its discretion by failing to contact his sentencing judge to determine whether he was eligible for a nunc pro tunc designation. Magistrate Judge Elizabeth Cowan Wright wrote a Report and Recommendation (“R. & R.”) recommending that the Court deny the Petition. (R. & R., Mar. 6, 2019, Docket No. 9.) Martinez objected to the R. & R. (Obj. Mar. 28, 2019, Docket No. 14.) Because the Magistrate Judge did not err in finding that the BOP did not abuse its discretion, the Court will overrule Martinez's objection and deny his Petition.

         BACKGROUND

         On August 25, 2011, Martinez was arrested by Iowa state authorities and charged with possession of cocaine with the intent to deliver. (Petition at 2.) He was held on that charge. (Id.) On September 16, 2011, an Iowa state court sentenced Martinez to 120 months' imprisonment for state offenses. (Id.) Shortly thereafter, the United States indicted Martinez on the same conduct. (Id.) On November 16, 2011, pursuant to a writ of habeas corpus ad prosequendum, Martinez was transferred to federal custody pending the federal proceedings. (Decl. of Forest Kelly (“Kelly Decl.”) ¶ 8, June 25, 2018, Docket No. 5.) On August 24, 2012, United States District Judge James E. Gritzner sentenced Martinez to 120 months' imprisonment, “to be served concurrently to the undischarged terms of imprisonment” of the Iowa state sentence. (Id. ¶ 9, Ex. B at 7, June 25, 2018, Docket No. 5-1.)

         On October 12, 2012, Martinez was transferred back to Iowa state custody to serve out the remainder of his state sentence. (Kelly Decl. ¶ 10.) On April 16, 2013, Martinez satisfied his state sentence and was transferred once again to federal custody, to serve out the remainder of his federal sentence. (Id. ¶ 11.) He is projected to be released from federal custody on April 18, 2021. (Id. ¶ 17, Ex. A at 4.) In computing his federal sentence, the BOP credited Martinez for the 22 days he spent in Iowa custody between August 25, 2011 and September 15, 2011, the day before he was sentenced in Iowa state court. (Id.)

         The BOP, however, did not credit Martinez for the time he spent in state and federal custody between September 16, 2011, and August 23, 2012, the day before his federal sentencing. In 2017, Martinez challenged the BOP's computation in this regard by filing a Request for Administrative Remedy with his federal institution. (See Attachments to Petition at 2, May 7, 2018, Docket No. 1-1.) The Acting Warden denied his request, stating that the time period in question “was credited towards your state sentence and cannot be awarded as prior credit towards your federal sentence.” (Id.) Martinez appealed the Warden's decision to the Regional Office, who informed him that the credit he requested was precluded by 18 U.S.C. § 3585(b). (Id. at 1.) Martinez further appealed to the Central Office, who denied his appeal for the same reasons. (Id. at 4.)

         Martinez then brought this Petition, arguing that he “is entitled to jail time credit spent in federal custody during the pendency of his federal case.” (Petition at 1.) The basis for his argument is that the BOP erred by refusing to award him a nunc pro tunc designation which would “designate[] the Iowa state prison where petitioner served his state sentence as the place where he began serving his federal sentence.” (Id.) Martinez argues that, because Judge Gritzner ordered his sentence concurrent to his state sentence, the BOP abused its discretion by refusing to ask him whether he intended to make a nunc pro tunc designation which would apply retroactively.

         The Magistrate Judge recommends denying Martinez's Petition for two reasons. First, the Magistrate Judge found that the BOP correctly determined that 18 U.S.C. § 3585 precluded Martinez from receiving pre-sentence credit for the time between September 16, 2011 and August 24, 2012, as he received credit for that time against his state sentence. (R. & R. at 7-8.) Second, the Magistrate Judge determined that the BOP did not abuse its discretion in failing to contact Judge Gritzner because he explicitly stated that Martinez's sentence was to run concurrently only to “the undischarged terms” of the Iowa sentence. (Id. at 8.)

         Martinez now objects to the second determination. He argues again that the BOP abused its discretion in failing to contact Judge Gritzner and in denying his request for a nunc pro tunc designation. He therefore requests that the Court grant his Petition and order the BOP to consider his request for nunc pro tunc designation, which would include contacting Judge Gritzner.

         DISCUSSION

         I. STANDARD OF REVIEW

         The district court reviews de novo those portions of an R & R to which an objection is made and “may accept, reject, or modify, in whole or in part, the findings or recommendations” to which an objection is made. 28 U.S.C. § 636(b)(1); accord D. Minn. LR 72 .2(b). The objections must be ‚Äúspecific written objections to the ...


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