Powell v. Hanson, CASE NO. 4:15-cv-408
| Decision Date | 30 March 2016 |
| Docket Number | CASE NO. 4:15-cv-408 |
| Parties | IVORY POWELL, PETITIONER, v. R. HANSON, RESPONDENT. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OPINION AND ORDER
Before the Court is the motion of respondent to dismiss/deny this habeas corpus action. (Doc. No. 6 ["MTD"].) Petitioner has opposed the motion (Doc. No. 7 ["Opp'n"].) For the reasons that follow, the motion to dismiss/deny the petition is not well taken.
Ivory Powell ("Powell" or "petitioner"), a federal prisoner, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the computation of his sentence by the Bureau of Prisons ("BOP"). (Doc. No. 1 ["Petition"].) Petitioner asserts that he exhausted his administrative remedies before filing the petition, and respondent does not challenge that assertion. Wesley v. Lamanna, 27 F. App'x 438, 438-39 (6th Cir. 2001) () (citing Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992)). The Court ordered respondent to file an answer to the petition and show cause why the petition should not be granted. (Doc. No. 5.) Respondent did not answer, but filed the motion to dismiss now pending before the Court.
The underlying facts of this case are not in dispute. Petitioner was arrested on December 13, 2005 by non-federal law enforcement officers in Cincinnati, Ohio, and charged with the state offense of aggravated robbery, Case No. B0512281. (See Doc. No. 6-2 (Declaration of J.R. Johnson ["Johnson Dec."]) ¶ 6(a) (referencing Presentence Investigation Report ("PSR") at p. 6, ¶ 17).) On August 24, 2006, Powell was sentenced in the Hamilton County, Ohio, Court of Common Pleas to a term of 8 years for aggravated robbery with a firearm specification. As part of his state sentence, Powell received 258 days of jail time credit. (Id. ¶ 6(b) (); see also id. ¶ 18(c).)
On January 5, 2007, while Powell was serving his state sentence, the United States District Court for the Eastern District of Kentucky granted the motion of the United States for a federal writ of habeas corpus ad prosequendum, directing the United States Marshals Service to "borrow" the petitioner from state authorities for processing on federal criminal charges. (Id. ¶ 6(c) () and ¶ 6(d) (referencing United States Marshals Service, Form 129); see also id. ¶ 18(d) and (e).)
On March 7, 2007, while on federal writ, petitioner pleaded guilty to federal criminal charges. (Id. ¶ 6(e) (referencing Minute Entry Reflecting Entry of Guilty Plea);see also id. ¶ 18(f).) On May 20, 2008, petitioner was sentenced in the United States District Court for the Eastern District of Kentucky to a 48 month term of imprisonment, with a five year term of supervised release to follow, for aiding and abetting in the use of a firearm in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c) and (2). The federal sentencing court directed that Powell serve 12 months of his term concurrently with his 8 year state sentence, and 36 months of his term consecutively to his state sentence. (Id. ¶ 6(f) (referencing Federal Judgment and Commitment Order); see also id. ¶ 18(g).) On May 29, 2008, petitioner was returned to the state/local authorities in satisfaction of the federal writ. (Id. ¶ 6(g) (referencing United States Marshals Form 129, p. 2); see also id. ¶ 18(e).)
On November 22, 2013, petitioner was released by state authorities to federal authorities, but the state continued running petitioner's state sentence until December 3, 2013. (Id. ¶ 6(h) (); see also id. ¶ 18(h).)
The BOP computed Powell's federal sentence as follows:
The Bureau of Prisons computed Mr. Powell's 48 month federal sentence as commencing on January 8, 2013. The federal sentence commencement date was determined by calculating 12 months backward from November 22, 2013, the date he was released from his state sentence to the federal detainer, and adding 47 days of good conduct time earned on the 12 month portion of his federal sentence. Assuming he receives all good conduct time available to him under 18 U.S.C. § 3624(b), his projected satisfaction date is July 3, 2016. (Federal Sentence Computation; Bureau of Prisons Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984)).
(Id. ¶ 6(i); see also id. ¶¶ 7-12.)
The Rules Governing 2254 Cases ("Habeas Rules") apply to habeas petitions under 28 U.S.C. § 2241. See Williams v. Holloway, Case No. 2:14-cv-02652-STA-tmp, 2016 WL 1058017, at *4 n.2 ); Habeas Rule 1(b). The Federal Rules of Civil Procedure "apply to proceedings for habeas corpus . . . to the extent that the practice in those proceedings: (A) is not specified in a federal statute, [or] the Rules Governing Section 2254 Cases . . . ; and (B) has previously conformed to the practice in civil actions." Fed. R. Civ. P. 81(a)(4)(A)-(B). Rule 81 is mirrored by Habeas Rule 12, which provides that the Federal Rules of Civil Procedure apply to habeas proceedings to the extent that those rules are not inconsistent with any statutory provision or the Habeas Rules. See Habeas Rule 12.
Petitioner's claim that the BOP has not correctly computed his federal sentence does not involve the legality of his conviction. Therefore, there is no incompatibility with respect to the application of the Federal Rules of Civil Procedure to respondent's motion to dismiss. See McCarty v. Shartle, No. 4:07-CV-3120, 2008 WL 2783495, at *3 (N.D. Ohio July 15, 2008).
"[A] court may dismiss a petition at any time, or make any such disposition as law and justice require, if it determines a petition fails to establish adequate grounds for relief." Banks v. U.S. Marshal, No. 4:13cv490, 2013 WL 3458301, at *2 (N.D. Ohio July 9, 2013) (citing Hilton v. Braunskill, 481 U.S. 770, 775, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987)) (further citation omitted). A court should not grant a motion to dismiss"'unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.'" See Strbac v. Sniezek, No. 4:06CV2321, 2007 WL 1544782, at *2 (N.D. Ohio May 24, 2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)).
On a motion to dismiss, a court must accept all "well-pleaded allegations" as true and should construe the facts in a light that is most favorable to the non-movant. Strbac, 2007 WL 1544782, at *2 (citing Mayer v. Mylod, 988 F.2d 635, 637 (6th Cir. 1993)). A court is not, however, required to "'accept as true legal conclusions or unwarranted factual inferences.'" Id. (quoting Morgan v. Church's Fried Chicken, 829 F. 2d 10, 12 (6th Cir. 1987)); see also Carter v. Shartle, No. 4:11 CV 1100, 2012 WL 6682119, at *3 (N.D. Ohio Oct. 15, 2012), report and recommendation adopted by 2012 WL 6681775 (N.D. Ohio Dec. 20, 2012).
In order to survive a motion to dismiss, the factual allegations in the petition, accepted as true, "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). That standard requires "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Twombly, 550 U.S. at 556).
In addition to considering the allegations set forth in the petition, a court may review "any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein." See Bassett v. Nat'lCollegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (citation omitted). The documentation of the BOP's administrative responses to petitioner's complaints attached to his petition, and the public records attached to respondent's brief, may be considered by the Court in connection with respondent's motion to dismiss. See Kulyk v. Warden, Hocking Corr. Facility, No. 2:12-CV-643, 2013 WL 1149169, at *2 n.2 (S.D. Ohio Mar. 19, 2013).
Under 28 U.S.C. § 2241(c)(3), a writ of habeas corpus extends to a prisoner "in custody in violation of the Constitution or laws or treatises of the Unites States[.]" A petition for a writ pursuant to 28 USC § 2241 generally arises from "a challenge to the manner in which a sentence is executed, rather than the validity of the sentence itself." Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998) (citing United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991)). The authority to implement a federal sentence of imprisonment lies with the Attorney General through the BOP. United States v. Wilson, 503 U.S. 329, 331, 112 S. Ct. 1351, 117 L. Ed. 2d 593 (1992). Under § 2241, however, the district court may grant relief to a petitioner challenging the computation of his sentence. Foster v. Zych, Civil No. 2:09-CV-13661, 2009 WL 3631013, at *2 (E.D. Mich. Oct. 30, 2009) ().
Powell alleges that his federal sentence was not computed correctly and that he is not receiving federal jail time credit as follows:
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