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Soto-Pineda v. Clay

United States District Court, W.D. Louisiana, Lake Charles Division

January 31, 2017

JOSE CARLOS SOTO-PINEDA B.O.P. # 64155-019
v.
BECKY CLAY

         SECTION P

          MINALDI JUDGE.

          MEMORANDUM ORDER

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before the court is the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by pro se petitioner Jose Carolos Soto-Pineda (Soto-Pineda). Soto-Pineda is an inmate in the custody of the Federal Bureau of Prisons (BOP) and he is currently incarcerated at the Federal Corrections Institute, Oakdale, Louisiana (FCIO).

         This matter was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.[1]

         I.

         Background

         In January 2011, Soto-Pineda was indicted in the United States District Court, Northern District of Georgia. United States v. Soto-Pineda (“Soto-Pineda I”), 1:11-cr-006(10), doc. 5 (N.D.Ga. Apr. 29, 2013). He pleaded guilty to count one of the 2011 indictment and was sentenced on April 29, 2013, to a forty-one month term of imprisonment. Id. at doc. 621. He did not file an appeal. Doc. 1, att. 2, p. 2. Soto-Pineda was again indicted in the same court in September 2012. United States v. Soto-Pineda (“Soto-Pineda II”), 1:12-cr-327(1), doc. 1 (N.D.Ga. Sep. 15, 2014). He pleaded guilty to count one of the 2012 indictment and was sentenced on September 12, 2014, to 175 months of imprisonment. Id. at docs. 130, 137. He filed a timely notice of appeal but same was dismissed for want of prosecution/failure to pay the required fees. Id. at docs. 142, 153.

         In October 2015 Soto-Pineda filed a motion for correction of sentence in Soto-Pineda I, 1:11-cr-006(10), doc. 683, and in Soto-Pineda II, 1:12-cr-327(1), doc. 157. There he claimed that his two sentences imposed by the Northern District of Georgia were ordered to run concurrently and that the BOP was improperly running the sentences consecutively. Both motions were denied. Soto-Pineda I, 1:11-cr-006(10), at doc. 687; Soto-Pineda II, 1:12-cr-327(1), at doc. 166.

         In the present matter Soto-Pineda again claims that the BOP is not accurately computing the amount of time that he must serve on his federal sentence. Doc. 1, p. 6. In support, he claims that his attorney and the government promised him that the two federal sentences would be run concurrently. Id. at 7. As relief he asks this court to order the BOP to run his sentences concurrently rather than consecutively. Id. at 8. He also asks for credit towards his federal sentence for “time spent in prison prior to the imposition of his 175 months' sentence.” Id. This includes credit for “the time between April 2, 2010 and September 30, 2010, a time served in the state prison for the same offense charged on indictment 1:11-cr-06-10-CAP . . . [and] for the time between August 4, 2012, and October 2, 2012.” Doc. 1, att. 2, p. 3.

         II.

         Law and Analysis

         A. Exhaustion

         Before Soto-Pineda can proceed in this court on the remaining “time served” claim, he must first have exhausted the administrative remedies provided by the Bureau of Prisons. See Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010) (holding § 2241 habeas action seeking credit for time served was not ripe until the Bureau of Prisons had reviewed and made a final decision on the defendant's request for credit for time served). Soto-Pineda admits that he did not exhaust the BOP remedies. Doc. 1, att. 2, p. 3. He states that he “has attempted to exhaust the remedies with the BOP, but hasn't been able to do so because the ...


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