United States District Court, W.D. Louisiana, Lake Charles Division
JOSE JUAN HERNANDEZ REG. # 32176034
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a pro se petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241 by Jose Juan
Hernandez. Hernandez is an inmate in the custody of the
Bureau of Prisons ("BOP") and is currently
incarcerated at the Federal Correctional Institute at
matter has been referred to the undersigned for initial
review. For the reasons stated below, IT IS
RECOMMENDED that the petition be
DENIED and DISMISSED WITH
PREJUDICE under Rule 4 of the Rules Governing §
2254 Cases in the United States District Courts.
to a plea agreement, Hernandez was convicted in the United
States District Court for the Northern District of Texas of
one count of conspiracy to possess with intent to distribute
more than 500 grams of methamphetamine, a Schedule II
controlled substance. See United States v.
Hernandez, No. 3:08-cr-268-B-3, docs. 292 & 294
(N.D. Tex. Jul. 8, 2010). On July 1, 2010, he was sentenced
to a 188-month term of imprisonment. Id. at doc.
361. At his sentencing, the judge orally ordered that the
federal sentence would run concurrently to a sentence already
imposed by the state of California. Id. at doc. 382,
pp. 26-27'. However, this order was not incorporated into
the written judgment. See Id. at doc. 361.
filed a notice of appeal to the Fifth Circuit, which affirmed
the district court in a judgment filed on July 18, 2011.
Id. at doc. 416. He then filed a Motion to Vacate in
the district court pursuant to 28 U.S.C. § 2255, on or
about March 27, 2012. Id. at doc. 427. There he
complained in part of the court's failure to order that
his sentences be served concurrently. See Hernandez v.
United States, No. 3:12-cv-921, doc. 10, p. 8 (N.D. Tex.
Feb. 20, 2013). The magistrate judge reviewed the motion on
the merits and recommended that the relief be denied, and the
court adopted her report and recommendation. Id. at
docs. 10, 13, 14. As to the concurrent sentences claim, the
magistrate judge reasoned that Hernandez had waived any claim
relating to the court's error. Id. at doc. 10,
pp. 8-9. However, the government also addressed the merits of
the claim in its response to the magistrate judge's
opinion. It noted that Hernandez had been paroled from his
California sentence on March 3, 2010, prior to his federal
sentencing. Id. at doc. 11, p. 2. Accordingly, there
was no undischarged state sentence with which the federal
sentence could run and the only grounds for shortening the
federal sentence based on the one imposed by California would
be through a downward departure under United States
Sentencing Guidelines § 5K2.23. Id. at doc. 11,
pp. 2-3. In adopting the magistrate judge's report and
recommendation, the court expressly declined to order any
downward departure. Id. at doc. 13, pp. 2-3.
sought review in the Fifth Circuit, which affirmed the
district court's judgment. Id. at doc. 21.
Hernandez also filed a Motion to Reduce Sentence in the
district court under 18 U.S.C. § 3582, which the court
denied. Hernandez, No. 3:08-cr-268-B-3, at docs.
442, 448. Finally, he filed a Motion to Order Nunc Pro Tunc
Designation/Motion to Correct Clerical Error under Federal
Rule of Criminal Procedure 36 on or about February 16, 2016,
in which he sought to have the court's judgment corrected
in order to reflect that his federal sentence was running
concurrently with a sentence imposed by the State of
California. Id. at doc. 450. The court denied the
motion, adopting the magistrate judge's report and
recommendations. Id. at docs. 452, 453. The
magistrate judge held that the court did not have
jurisdiction over his request for nunc pro tunc designation,
and that such a request should instead be presented through a
petition filed under 28 U.S.C. § 2241 in the district of
incarceration. Id. at doc. 452, pp. 6-7. He also
found no grounds for relief under Rule 36 because, even
though the court's oral order had been erroneously
omitted from the sentence, there was no state sentence
running at the federal sentencing to which the federal
sentence could have been made concurrent and "amending
Hernandez's judgment at this time makes no practical
sense, particularly since it appears that the BOP is very
aware of the variance between the oral sentence and the
judgment as written." Id. at doc. 452, pp. 4-6.
now brings the instant § 2241 petition, seeking nunc pro
tunc designation that his federal sentence runs concurrently
to his California sentence. Doc. 1. This court conducts its
initial review of the petition under Rule 4 of the Rules
Governing § 2254 Proceedings in the District Courts.
Screening of ...