Amos v. Walton

• Decision Date: 13 December 2013
• Docket Number: Crim. No. 04-cr-158-JCH (E.D. MO.),Civil No. 12-cv-141-DRH-DGW (S.D. Ill.)
• Court: U.S. District Court — Southern District of Illinois
• Parties: DAVID ALLEN AMOS, #31876-044, Petitioner, v. J.S. WALTON, Respondent.

DAVID ALLEN AMOS, #31876-044, Petitioner, v. J.S. WALTON, Respondent.

Civil No. 12-cv-141-DRH-DGW (S.D. Ill.)

Crim. No. 04-cr-158-JCH (E.D. MO.)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Signed: December 13, 2013

MEMORANDUM AND ORDER

HERNDON, Chief Judge:

I. INTRODUCTION

Before the Court is a Report and Recommendation (R&R) (Doc. 17) Magistrate Judge Donald G. Wilkerson issued pursuant to 28 U.S.C. § 636(b)(1)(B), FEDERAL RULE OF CIVIL PROCEDURE 72(b), and SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 72.1(a). Judge Wilkerson recommends that the Court GRANT petitioner David Allen Amos' petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1).

The R&R was sent to the parties, with a notice informing them of their right to file objections within fourteen days of service (Doc. 17-1). Respondent objects to the R&R's recommendation (Doc. 20). Thus, the Court must undertake de novo review of the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); FED. R.CIV. P. 72(b); SDIL-LR 73.1(b); Govas v. Chalmers, 965 F.2d 298. 301 (7th Cir. 1992). The Court may "accept, reject, or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999) (citing FED. R. CIV. P. 72(b)). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues for which the parties make specific objections. Id. However, the Court need not conduct a de novo review of the findings of the R&R for which no objections are made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt these findings after review for clear error. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). For the reasons discussed herein, the Court ADOPTS the R&R's recommendation.

II. OBJECTIONS

Respondent objects to the R&R's conclusions of law. Thus, the Court adopts the R&R's findings of fact without further discussion.¹ To summarize this dispute, Amos seeks federal credit for time he spent on a writ of habeas corpus ad prosequendum (WHCAP) from June 24, 2005 to March 31, 2006; the date that District Judge Jean C. Hamilton of the Eastern District of Missouri sentenced Amos.

1. Amos' Claim is not Cognizable Under § 2241

Respondent first objects to Judge Wilkerson's recommendation that Amos' claim is cognizable under § 2241. Respondent argues that Amos seeks adownward departure under the Sentencing Guidelines and thus his claims should have been raised on direct appeal or through a Section 2255 petition. See United States v. Ross, 219 F.3d 592, 593-94 (7th Cir. 2000); Prewitt v. United States, 83 F.3d 812 (7th Cir. 1996). However, the Court agrees with Judge Wilkerson that Amos' claim is a challenge to the BOP's interpretation or execution of his sentence. Thus, it is properly before the Court pursuant to § 2241. See Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Wilkins-El v. Marberry, 340 Fed. App'x. 320 (7th Cir. 2009).

2. Legal Conclusion is in Error

Amos was held pursuant to a WHCAP from June 24, 2005, until his federal sentencing on March 31, 2006. In reliance on the amended judgment entered by the sentencing court, the BOP will not give Amos "credit" towards his 140 month federal sentence because this 9 month period was credited towards his 17 month state sentence for parole violation. See 18 U.S.C. § 3585(b); United States v. McGee, 60 F.3d 1266 (7th Cir. 1995) ("[T]he statute authorizes credit for 'any time . . . that has not been credited against any other sentence.'").

At Amos' sentencing hearing, Judge Hamilton stated:

[P]ursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the Defendant, David Allen Amos, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 140 months. This term consists of a term of 140 months on each Counts I and II, the terms to be served concurrently and also concurrently with the undischarged portion of the term of imprisonment imposed in Cape Girardeau County Circuit Court, Docket No. CR592-101FX.

(Doc. 1-1, p. 21). Thereafter, the following exchange took place:

Defense Counsel: Your Honor, in light of your gracious decision to run this sentence concurrently with the undischarged term of Mr. Amos's sentence, if the Court were to consider the issue of time served in this matter, Mr. Amos has been in federal custody since June 24th of 2005. The unexpired term of imprisonment was imposed on April the 4th of 2005. If it's not your intention that he should receive credit for the time since June 24th, then we would ask that you order that the sentence begin immediately in order to ensure that the federal sentence begins running no later.

The Court: [Amos] has been in federal custody since June 24^th of [2005]. Is that correct?

Defense Counsel: Yes, Mam

The Court: As far as I'm concerned, that should all go toward the sentence I've just imposed. I don't know how that works with the State. I don't know what the extent of the State sentence is. Does anybody know that?

Defense Counsel: It's due to expire in 2008, Your Honor; May of 2008.

Probation Officer: That's correct, Your Honor. And he is not on a writ. He is actually in federal custody.

The Court: He's in federal custody.

Probation Officer: So he's not getting credit for that State - He may or may not be getting credit for that state sentence right now but he's, without question, getting federal credit since June 24th.

The Court: Since [2005], June of [2005]. Yeah. My belief is that the intent is that he receive credit for this sentence which I've just imposed from June 24th.

(Id. at pp. 24-25).

Further, defense counsel brought Judge Hamilton's attention to § 5G1.3 of the Sentencing Guidelines. To which the Judge Hamilton responded, "That's themost opaque section of the Guidelines" (Doc. 1-1, p. 25). While noting agreement, defense counsel went on to state that § 5G1.3,

[A]uthorizes the Court to impose a concurrent sentence which you've now done. The Commentary or the Application Notes 2, 5G1.3, discuss an issue where the Bureau of Prisons is likely not to credit for the Defendant with time that he's otherwise entitled to.

. . .

That's one reason why we request that the Court, knowing the Court does have the limited power to do so, that the sentence begin immediately because that ensures that from this day until he's received by the Bureau of Prisons that he will receive that credit.

(Id. at pp. 25-26). To which Judge Hamilton responded, "No. It certainly should begin immediately but also with credit for his earlier time in federal custody" (Id. at p. 26). Defense counsel then elaborated on his belief that the court should state its intent in the terms of a "downward departure" (Id.). Judge Hamilton asked for briefing on the subject and went on to state,

The Bureau of Prisons writes me a lot of letters about this sort of thing, but if we can send something with them. My intent is he gets credit for all of his time in federal custody, however they want to do that. Now if they've got a special way of stating it, I'm happy to go along with it.

(Id. at p. 27).

Judge Hamilton went on to discuss her desire that Amos have documentation that he could take with him in his records to the BOP regarding this 9 month period (Id. at p. 28). Defense counsel then stated, "[t]hank you, Your Honor. And I'm certainly not trying to inconvenience anyone. I just want to make sure that the Court's intentions are followed by the Bureau of Prisons." Towhich Judge Hamilton responded, "[n]o, no, and I agree. And if this would save, you know correspondence going back and forth between the Bureau of Prisons and me, that's fine. So I don't have any problem with that" (Id. at 28).

On the same day Judge Hamilton orally imposed Amos' sentence, March 31, 2006, the sentencing court entered judgment, reflecting a sentence of "140 months . . . to run . . . concurrently with the undischarged portion of the term of imprisonment imposed in Cape Girardeau County Circuit Court docket no. CR592-101FX." See United States v. David Allen Amos, 04-cr-158-JCH, Doc. 48 (E.D. MO.). On April 7, 2006, defense counsel moved for an amended judgment, seeking: 1. an indication that the sentence was to commence immediately, and 2. a downward departure of 9 months under § 5G1.3 to account for the time spent in custody prior to sentencing (Id. at Doc. 50). On April 10, 2006, the government filed a response in opposition to defense counsel's request, raising numerous arguments against a downward departure which it does not appear were raised at the time Judge Hamilton orally imposed sentence (Id. at Doc. 55). The sentencing court entered an amended judgment on April 11, 2006, which left the initial judgment unchanged except to add the following: "The Federal sentence shall commence immediately as of March 31, 2006, the date of the original judgment" (Id. at Doc. 56).

As Judge Hamilton unambiguously stated her intent that Amos' sentence account for the 9 months he was in custody pursuant to the WHCAP, Judge Wilkerson concludes that Judge Hamilton intended to comply with thesuggestions of § 5G1.3 and actually reduce Amos' sentence to 131 months incarceration. Thus, the BOP would not have been required to apply credit under § 3585 and should have merely calculated Amos' sentence as intended by the sentencing court. In light of the precedence given oral sentences over later inconsistent written sentences, see United States v. Cephus, 684 F.3d 703, 709 (7th Cir. 2012); United States v. Burton, 543 F.3d 950, 953 (7th Cir. 2008), Judge Wilkerson concludes that Judge Hamilton used her discretion to impose a 131 month sentence.

Respondent objects to this recommendation. Respondent notes that the amended judgment was entered after the sentencing judge reviewed Amos' defense counsel's brief arguing for a downward departure under § 5G1.3, in addition to the government's arguments in opposition. Because the amended judgment...