United States District Court, D. Minnesota
Monserrato Martinez, Jr., Reg No. 13080-030, pro se
H. MacDonald, United States Attorney, and Bahram Samie,
Assistant United States Attorney, for respondent.
R. TUNHEIM CHIEF JUDGE
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.
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.)
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.)
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.)
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.
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.)
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
STANDARD OF REVIEW
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 “specific written
objections to the ...