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Hernandez v. Myers

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

October 3, 2018

JOSE JUAN HERNANDEZ REG. # 32176034
v.
R. MYERS

         SECTION P

         UNASSIGNED DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before 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 Oakdale, Louisiana.

         This 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.

         I.

         Background

         Pursuant 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.

         Hernandez 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.

         Hernandez 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.

         Hernandez 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.

         II.

         Law & Analysis

         A. Screening of ...


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