United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'Connor UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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.
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.
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.
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
Respondent conceded that Petitioner Ontiveros has exhausted
his administrative remedies with the BOP concerning the