2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-17-2011

Miguelo Morales v. Michael Zenk

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4204

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Recommended Citation

"Miguelo Morales v. Michael Zenk" (2011). 2011 Decisions. Paper 1770.

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GLD-106 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-4204

___________

MIGUELO MORALES,

Appellant

v.

MICHAEL ZENK, Warden of MVCC;

FEDERAL BUREAU OF PRISONS;

CORNELL COMPANY, INC.

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 3-09-cv-00265)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

February 3, 2011

Before: AMBRO, CHAGARES and GREENBERG, Circuit Judges

(Opinion filed: February 17, 2011 )

_________

OPINION

_________

PER CURIAM

Miguelo Morales, a federal prisoner incarcerated at the Moshannon Valley 

Correctional Center (MVCC), appeals the dismissal of his petition for writ of habeas 
2

corpus under 28 U.S.C. § 2241. For the following reasons, we will summarily affirm the 

judgment of the District Court.

As we write primarily for the parties, we will recount only the facts germane to the 

present appeal. On August 23, 2001, Morales was named in a 13-count indictment in the 

District of the District of Columbia. He and his codefendants were charged with criminal 

conduct spanning the years 1996 through 2001 [hereinafter the ―DC case‖]. See United 

States v. Morales, No. 01-CR-296 (D. D.C.). Morales was apprehended on June 4, 2002, 

in the Southern District of New York, and taken into custody. The following day, he was 

indicted in the Eastern District of Pennsylvania on a variety of drug charges [hereinafter 

the ―PA case‖]. After a transfer to the District of Columbia for processing in the DC 

case, Morales was incarcerated in Pennsylvania pending trial. 

While Morales initially pleaded not guilty in the PA case, he soon reached a deal 

with prosecutors. He pleaded guilty to count three of the indictment, which charged 

violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and was sentenced on November 

25, 2003, to 46 months of incarceration at FCI Fort Dix followed by three years of 

supervised release. See United States v. Morales, No. 2:02-cr-00326-JCJ-1 (E.D. Pa. 

Nov. 25, 2003). However, Morales does not seem to have ever been housed at Fort Dix; 

rather, he was transferred to the District of Columbia to await trial on the DC case. See

Courtot Decl. ¶ 8(j).
3

Morales pleaded guilty to count 1 of the DC indictment, and was sentenced on 

February 9, 2007, to 120 months of incarceration1and five years of supervised release, a 

―term of imprisonment [that] shall run concurrently with [the] term of imprisonment the 

defendant is currently serving in the state of Pennsylvania.‖ See United States v. 

Morales, 01-CR-296 (D. D.C. Mar. 7, 2007). The DC Judge further ―recommend[ed] that 

[Morales] receive credit for time served to commence with the date of arrest on [June 4, 

2002].‖ Id. 

Following Morales’s arrival at MVCC, his aggregate sentences were calculated by 

the Bureau of Prisons.2 With regard to the PA case, Morales received credit for the 

pretrial detention between June 4, 2002, and November 25, 2003. See 18 U.S.C. § 

3585(b). Factoring in Good Conduct Time (GCT) credit, see generally 18 U.S.C. § 

3624(b), Morales’s PA sentence was deemed to have been completed on October 5, 2005, 

on which date he was imprisoned awaiting trial in DC. See Resp. Ex. 2F. With regard to 

the DC case, the sentence was determined to have begun on February 9, 2007, to run 120 

months, minus GCT credit and the time served between October 6, 2005 (the date after 

 

1

1

The 120-month term represented a departure below the guidelines range of 188 

to 235 months pursuant to U.S.S.G. §5K1.1 and Morales’s substantial assistance. 

See Statement of Reasons § V(B)(1).

2

3

2

See 18 U.S.C. § 3585(a) (―A sentence to a term of imprisonment commences on 

the date the defendant is received in custody awaiting transportation to . . . the 

official detention facility at which the sentence is to be served.‖); United States v. 

Wilson, 503 U.S. 329, 335 (1992) (Bureau of Prisons calculates sentences and 

credits ―when imprisoning the defendant‖).
4

his PA sentence expired) and February 8, 2007. The projected expiration date for his DC 

sentence was June 23, 2014. Id.

Believing the above calculation to be in error, Morales commenced a lengthy 

administrative review process, culminating in his filing of a § 2241 petition on October 2, 

2009.3 Morales conceded that his PA sentence expired in October 2005, but contended 

that the conduct involved in both cases was ―related,‖ and argued that, as a result, his DC 

sentence should have retroactively commenced at the same time as his PA sentence. In 

support of his argument, he pointed to the language in the DC District Judge’s order 

granting him credit for time served running from 2002 and emphasizing the concurrent 

nature of the DC sentence. He also cited U.S.S.G. §5G1.3, claiming that this provision 

authorized the retroactive sentence sought. 4 Morales requested, therefore, that the court 

 

4

3

See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242–43 (3d Cir. 2005) (―A 

[petition] pursuant to [28 U.S.C.] § 2241 generally challenges the execution of a 

federal prisoner’s sentence, including such matters as the administration of parole, 

computation of a prisoner’s sentence by prison officials, prison disciplinary 

actions, prison transfers, type of detention and prison conditions.‖) (citing and 

adopting reasoning of Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001)).

5

6

4 During the administrative review process, Morales presented similar arguments 

to prison officials. They temporarily met with some success: on February 26, 

2009, Administrator James E. Burrell responded to Morales’s grievance, telling 

him that the Bureau of Prisons had contacted the Assistant United States Attorney 

(AUSA) who prosecuted the DC case. The AUSA had confirmed that it was ―the 

court’s intent to adjust [the] term under [U.S.S.G §] 5G1.3‖; accordingly, Burrell 

granted Morales’s request for relief, projecting a release date of July 26, 2011. 

Upon further review by the Bureau of Prisons, this determination was deemed to 

be in error—even had such a recommendation been made, it would have been 

―surplusage‖ disallowed under Bureau of Prisons regulations—and the original 

term was recalculated. See Watts Letter (Jul. 31, 2009); see also Courtot Decl. ¶ 
5

adjust his term to result ―in a projected release date of July 26, 2011 . . . and[/]or grant all 

the time spent from June 4, 2002‖ as credit on his DC sentence. Pet. 12.5 

The District Court overruled Morales’s objections to the Magistrate Judge’s 

Report and Recommendation and denied the petition. Morales filed a timely notice of 

appeal. 

We have jurisdiction under 28 U.S.C. § 1291, exercising ―plenary review over the 

District Court’s legal conclusions and apply[ing] a clearly erroneous standard to its 

findings of fact.‖ See O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005); see also

United States v. Friedland, 83 F.3d 1531, 1542 (3d Cir. 1996) (―Our review of the district 

court’s order denying . . . relief under 28 U.S.C. § 2241 is plenary.‖). If the appeal does 

not present a substantial question, we may summarily affirm. See LAR 27.4; I.O.P. 10.6; 

United States v. Baptiste, 223 F.3d 188, 190 n.3 (3d Cir. 2000).

The core issue on appeal is whether the start date of Morales’s DC sentence can be 

pushed back to the start date of his PA sentence. We are in full accord with the District

Court that it cannot. 

 

8(r–t). 

7

8

5 Morales also asks for a nunc pro tunc designation of federal confinement. See

Barden v. Keohane, 921 F.2d 476, 479 (3d Cir. 1990) (recognizing Bureau of 

Prisons’s ―power to have a state facility designated nunc pro tunc as a place of 

federal confinement‖ for purposes of confinement credits). We agree with the 

Government that Barden appears to be inapplicable to Morales’s situation, and 

would not afford him the relief requested. 
6

Morales relies in part on the fact that the District Judge in the DC case intended 

for the imposed sentence to be concurrent with the PA sentence. However, the PA 

sentence had expired long before the time the DC sentence was to begin. As it is well 

established that ―a federal sentence cannot commence prior to the date it is pronounced, 

even if made concurrent with a sentence already being served,‖ United States v. Flores, 

616 F.2d 840, 841 (5th Cir. 1980), the DC Judge did not have the authority to sentence 

Morales to a term fully concurrent with the time already served, even if he wanted to. 

See United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir. 1998) (―Congress did not 

intend to allow the court to make a new prison term run concurrently with a prison term 

that has already been completed.‖). 

Morales also argues that 18 U.S.C. § 3585(b) supports reducing his sentence. He 

is incorrect. Section 3585(b) allows for the granting of sentence credits ―for any time . . . 

spent in official detention prior to the date the sentence commences‖ so long as that time 

―has not been credited against another sentence.‖ But as Morales concedes that his PA 

sentence ended in October 2005, he also must acknowledge that the time from his arrest 

(June 4, 2002) to the day before his PA sentencing (November 24, 2003) was credited 

against his 46-month PA sentence—and under the plain language of § 3585(b), that time 

could not then be credited again in calculating his DC sentence. See United States v. 

Wilson, 503 U.S. 329, 337 (1992) (―Congress [clarified] that a defendant could not 

receive a double credit for his detention time.‖). 
7

Finally, Morales argues that denying him relief effectively results in punishing 

him twice for the same conduct. To the extent that he wishes to argue the invalidity of 

his DC conviction or sentence on those grounds, he must proceed separately via 28 

U.S.C. § 2255.

Accordingly, the appeal presents no substantial issue and we will summarily 

affirm the judgment of the District Court.