United States District Court, E.D. Kentucky, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge
Perez is a prisoner confined at the Federal Medical Center
(FMC) in Lexington, Kentucky, serving a cumulative sentence
of imprisonment of 421 months to be followed by a term of
supervised release of five years imposed by the United States
District Court for the Southern District of Florida on
November 15, 1996. United States v. Perez, No.
96-cr-201-001 (S.D. Fla. Nov. 15, 1996); United States v.
Perez, 1997 WL 33626852 (11th Cir. Oct. 2, 1997). Perez
filed a Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241, in which he challenges the execution his
sentence. [DE 1]. For the reasons set out below, his
Petition will be denied.
October 4, 1995, Perez and two accomplices robbed an
automotive parts store while carrying a firearm and, during
the offense, assaulted its owners. On November 24, 1995,
while possessing a firearm, Perez and two others robbed a
jewelry store and severely beat its owner after he attempted
to resist. Perez was arrested by Florida police on December
1, 1995, for unrelated offenses, but after several of his
robbery victims identified him in a lineup, he confessed to
his participation in the crimes. Perez v. Hogsten,
6:10-cv-202-GFVT, 2012 WL 359557, at *1 (E.D. Ky. Feb. 2,
March 12, 1996, a federal grand jury indicted Perez for
conspiracy to commit robbery, armed robbery, and the use of
firearm during the commission of a violent felony, in
violation of the Hobbs Act, 18 U.S.C. §§ 1951(a),
2; and 18 U.S.C. § 924(c). Following a three-day jury
trial, he was found guilty on all counts. On November 15,
1996, Perez was sentenced to a cumulative 421-month term of
incarceration to be followed by a five-year term of
supervised release. United States v. Perez, No.
96-cr-201-001 (S.D. Fla. 1996); United States v.
Perez, 1997 WL 33626852 (11th Cir. Oct. 2, 1997). The
Eleventh Circuit affirmed Perez's conviction and sentence
on direct appeal. United States v. Perez, 136 F.3d
140 (11th Cir. 1998).
his federal convictions, Perez was returned to state custody
to face prosecution under Florida charges for armed robbery,
battery and assault. Perez pled guilty to these offenses, and
on December 12, 1996, he was sentenced to a cumulative term
of 128 months, which the state court ordered to be served
concurrently with his pre-existing federal sentence.
Hogsten, 6:10-cv-202-GFVT, 2012 WL 359557, at *1.
earlier case, Perez indicated he was then remanded into the
custody of federal marshals, who in turn transferred him into
the custody of the Florida Department of Corrections to
commence service of his state sentence. Perez remained
incarcerated in service of his Florida sentence for
approximately eight years until he was released by Florida
officials and turned over to federal marshals on December 26,
earlier case, Perez challenged the BOP's denial of his
request that he receive credit for time spent in service of
his state sentence. First, Perez challenged the
Administrator's decision on the merits, contending that
he will serve the entirety of his thirty-five year federal
sentence regardless of whether a nunc pro tunc
designation is made. Second, Perez appeared to challenge the
BOP's decision on constitutional grounds. He asserted
that he had a reasonable expectation that the state
court's direction that its sentence be served
concurrently would be honored, citing Jefferson v.
Berkebile, 688 F.Supp.2d 474 (S.D. W.Va. 2010), and
thus, presumably implicating due process concerns. Finally,
he suggested that the BOP's denial of the relief
requested may violate the separation of powers doctrine or
fail to provide the due respect and comity which should be
afforded judgments entered by state courts, citing
Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 76 (2d Cir.
2005) and Fegans v. United States, 506 F.3d 1101,
1104 (8th Cir. 2007).
opinion addressing each of the issues Perez raised then (and
raises again in the instant petition), Judge Van Tatenhove
fully addressed the applicable law pertaining to the facts
set out above and denied the petition. Hogsten,
6:10-cv-202-GFVT, 2012 WL 359557, at *1. Perez appealed but
the appeal was dismissed for want of prosecution. Perez
v. Hogston, Case No. 12-5166 (6th Cir. Mar. 29, 2012).
much as the issues presented in the instant case have been
fully addressed and rejected by Judge Van Tatenhove, the
principle of stare decisis controls the outcome
here. Nothing more need be said, except to note that it has
long been the law of the Sixth Circuit that any court's
provision of a concurrent sentence in its judgment is not
binding on the Attorney General of the United States. See
United States v. Herb, 436 F.2d 566, 567-68 (6th Cir.
IT IS ORDERED that Perez's Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 [DE 1] shall be, and
the same hereby is, DENIED.
separate judgment in conformity herewith shall this date be
 The Court conducts a preliminary
review of habeas corpus petitions. 28 U.S.C. § 2243;
Harper v. Thoms, No. 02-5520, 2002 WL 31388736, at
*1 (6th Cir. Oct. 22, 2002). Because the petitioner is not
represented by an attorney, the petition is reviewed under a
more lenient standard. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573
(6th Cir. 2003). At this stage the Court accepts the
petitioner's factual allegations as true and his legal
claims are liberally construed in his favor. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Once that
review is complete, the Court may deny the petition if it
concludes that it ...