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Ontiveros v. Wilson

United States District Court, N.D. Texas, Fort Worth Division

February 21, 2018

ERIC D. WILSON, Warden, FMC-Fort Worth, Respondent.



         Before the Court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by Petitioner Gilbert Ontiveros (“Ontiveros”), a federal prisoner confined at FMC-Fort Worth in Fort Worth, Texas. After considering the petition and the relief sought by Petitioner, the record, related briefing, and applicable law, the Court concludes that the § 2241 petition should be and is hereby DENIED.

         I. CLAIM

         In his petition for a writ of habeas corpus under 28 U.S.C. § 2241, Petitioner Ontiveros asserts that the Bureau of Prisons (BOP) has wrongfully failed to credit his federal sentence with time he served on his sentence imposed in Nebraska state court in case number CR10-324. Pet., at I, 2-5, ECF No. 1.


         On April 8, 2010, Ontiveros was arrested in Hall County, Nebraska on the state offense of DUI, 3rd offense in case number CR09-435. Resp.'s Appendix, at 1, ECF No. 7-1. Ontiveros remained in the Hall County Jail until he was released on bond on April 15, 2010. Id. On May 20, 2010, Ontiveros was arrested again in Hall County, Nebraska. Id. The State of Nebraska charged him in case number CR10-324 with delivery/intent to deliver methamphetamine. App. at 8, ECF No. 7-1.

         On June 10, 2010, Ontiveros was sentenced on the state DUI charge (case number CR09-435) to 360 days' imprisonment, with pre-sentence credit of 29 days. App. at 2, ECF No.7-1. He received eight days' credit for the period of April 8, 2010, through April 15, 2010, when he was released on bond. App. at 1, ECF No.7-1. He received 21 days' credit for the time he spent in custody from the date of his second arrest, May 20, 2010, to the day before he was sentenced, June 9, 2010. App. at 1-2; 4, ECF No. 7-1. He served this sentence from June 10, 2010 to January 20, 2011. App. at 5, ECF No. 7-1. On November 10, 2010, while Ontiveros was serving the sentence in the DUI case, he was sentenced on the state methamphetamine charge in case number CR10-324 to not less than three but not more than four years' imprisonment. App at 6; 8, ECF No.7-1.

         On November 15, 2010, while serving his state court sentences, Ontiveros was indicted in the United States District Court for the District of Nebraska with conspiracy to manufacture, distribute and possess with intent to manufacture, distribute, or dispense methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) and 846. App. at 11, ECF No. 7-1.

         On November 20, 2010, Ontiveros was brought into federal custody pursuant to the issuance of a writ of habeas corpus ad prosequendum. App. at 10, ECF No.7-1. The judgment issued in the District of Nebraska shows that Ontiveros pleaded guilty to the one count indictment on March 21, 2011, and on July 20, 2011, was sentenced to a term of 188 months' imprisonment. App. at 12-13, ECF No. 7-1. The federal court ordered Ontiveros's sentence to run concurrently with the sentence imposed in state case number CR10-324. Id. at 13.

         On the same date he was sentenced, July 20, 2011, Ontiveros was returned to Hall County, Nebraska in satisfaction of the writ. App. at 10, ECF No.7-1. On August 10, 2011, the BOP designated Ontiveros to the Nebraska Department of Corrections to serve his federal term of imprisonment, commencing on July 20, 2011:

The United State District Court that sentenced [Gilbert Ontiveros] recommended that the Federal sentence run concurrently with the State sentence. To make this possible, I have designated the above facility [Nebraska Department of Corrections] for service of the federal sentence.

         App. at 18, ECF No.7-1. On November 9, 2012, Ontiveros satisfied his sentence in state case number CR10-324, and custody was transferred to the BOP to continue service of his federal sentence. App. at 19, ECF No. 7-1.

         As a result of Ontiveros's filing of a motion to reduce sentence under 18 U.S.C. § 3582(c)(2), the federal court granted a sentence reduction on his term of imprisonment from 188 months to 151 months. App. at 20, ECF No. 7-1. The BOP has calculated Ontiveros's federal term of imprisonment as a 151 month term, commencing when Ontiveros was sentenced on July 20, 2011. App. at 23. Because credit for the period from Ontiveros's state sentencing date on state case number CR10-324 (i.e., November 10, 2010) to the day before his federal term commenced (i.e., July 19, 2011) was applied to his state sentence, the BOP has not applied credit for this period of time to Ontiveros's federal sentence.

         The Respondent conceded that Petitioner Ontiveros has exhausted his administrative remedies with the BOP concerning the ...

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