United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS DENYING PETITION PURSUANT TO 28 U.S.C. 2241 CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
S. THOMAS ANDERSON, District Judge.
Before the Court is the Petition for Writ of Habeas Corpus by a Person in Federal P00>Custody ("§ 2241 Petition"), filed by Petitioner, Kevin Dewayne McCoy, Bureau of Prisons ("BOP") inmate registration number XXXXX-XXX, an inmate at the Federal Prison Camp in Millington, Tennessee ("FPC Millington") (ECF No. 1) and the Motion to Dismiss filed by Respondent, FPC Millington Warden Delores Stephens (ECF No. 8). For the reasons stated below, the Court GRANTS the Motion to Dismiss and DENIES the § 2241 Petition.
On April 2, 2009, Petitioner McCoy was arrested by the Horn Lake Police Department, Horn Lake, Mississippi for Improper Equipment, License Tag Switched, No Liability Insurance and Felony Possession of Controlled Substance in case numbers: 044657, 044658, 044659 and F2009-00040. (Declaration of Bryan Erickson, dated May 4, 2012 ("Erickson Decl."), ¶ 3 & Att. A, ECF No. 8-1 at PageID 36-37, 44-45.) On April 3, 2009, Petitioner was released on bond. ( Id. ) On August 25, 2009, the charges were Nolle Prosequi. ( Id. )
On June 3, 2009, Petitioner was arrested by Crittenden County, Arkansas authorities for violating the conditions of his probation in Case number CR-2003-409A. (Erickson Decl. ¶ 4, ECF No. 8-1 at PageID 37.) On August 6, 2009, Petitioner appeared in the Crittenden County Circuit Court, pursuant to a summons for violating the conditions of his probation in case number CR-2003-409A, and was detained. ( Id. ¶ 5.) On August 7, 2009, Petitioner's probation was revoked and he was sentenced to a ten year term of imprisonment in case number CR-2003-409A. ( Id. ¶ 6 & Att. B.) On November 24, 2009, Petitioner was transferred to the Arkansas Department of Corrections to continue service of his ten year term of imprisonment. ( Id. ¶ 7.) The Arkansas Department of Corrections sentence computation began Petitioner's ten year sentence on August 7, 2009, the date probation was revoked, with no prior custody credit. ( Id. ¶ 7.)
On March 8, 2010, while Petitioner was in state custody, he was "borrowed" pursuant to a Federal Writ of Habeas Corpus Ad Prosequendum from the state of Arkansas. ( Id. ¶ 8 & Att. C.) On May 19, 2010, Petitioner was indicted in the United States District Court for the Northern District of Mississippi, in case number 2:09CR00126-001, for Possession with Intent to Distribute Cocaine and Possession of a Firearm During and in Relation to a Drug Trafficking Crime, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 924(c). ( Id. ¶ 9.) At a hearing on November 4, 2010, United States District Judge Michael Mills sentenced Petitioner to a term of imprisonment of eighty-one months, to be followed by a three-year period of supervised release. ( Id. ¶ 10 & Att. D, Judgment, PageID 55-61.) Judgment was entered on November 5, 2010. ( Id. ) The judgment stated that Petitioner's federal sentence should "run concurrently to any previously imposed state sentence." ( Id. at PageID 56.)
On January 19, 2011, pursuant to the terms of the writ, McCoy was returned to the custody of the Arkansas Department of Corrections to complete his sentence for violating the terms of his state probation. (Erickson Decl. ¶ 11 & Att. C, ECF No. 8-1 at PageID 38, 52-53.) On December 6, 2011, McCoy completed his state sentence and was paroled to federal custody to serve the sentence imposed in the Northern District of Mississippi. ( Id. ¶ 12 & Att. E at PageID 63-66.)
The BOP computed Petitioner's federal sentence to commence on November 4, 2010, the date his federal sentence was imposed. ( Id. ¶ & Att. H at PageID 80-82.) Petitioner was credited with five days of jail credit for the time he spent in official detention on or after the date of the federal offense that was not credited toward any other sentence. ( Id. ) The dates of this credit are from April 2 through April 3, 2009, from June 3 through June 4, 2009, and August 6, 2009. ( Id. ) McCoy's projected release date is September 15, 2016, via good conduct time release, if he receives all good conduct time projected. (Att. H, ECF No. 8-1 at PageID 82.)
Petitioner has not filed any administrative remedies concerning the computation of his sentence during his designation to the BOP. (Declaration of Howard Williams, dated Nov. 19, 2013 ("Williams Decl."), ¶¶ 4-5, ECF No. 8-2 at PageID 87-88.)
II. Case No. 12-2975
On November 7, 2012, McCoy filed his pro se § 2241 Petition. (ECF No. 1.) On December 3, 2012, he paid the habeas filing fee. (ECF No. 2.) The sole issue presented in the § 2241 Petition is whether Petitioner should receive additional prior custody credit. (ECF No. 1 at PageID 2.) Petitioner relies on his district court judgment which states that his federal sentence was to run concurrently with any previously imposed state sentence. ( Id. at PageID 3.)
The Court issued an order on October 24, 2013, directing Respondent to file a response to the § 2241 Petition. (ECF No. 5.) On November 20, 2013, Respondent filed her Motion to Dismiss. (ECF No. 8.) Petitioner has not responded to the Motion to Dismiss.
III. ANALYSIS OF PETITIONER'S CLAIM
This Court is authorized to issue a writ of habeas corpus on behalf of a prisoner who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A claim about the BOP's failure to award sentence credit can be addressed in a § 2241 petition after the inmate has exhausted his administrative remedies with the BOP. United States v. Westmoreland, 974 F.2d 736, 737-38 (6th Cir. 1992). In this case the BOP has waived the defense ...