The opinion of the court was delivered by: Philip O. Reinhard, United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Arthur Reid, Jr., filed this petition for habeas corpus under 28 U.S.C. § 2241 challenging a two-year federal sentence scheduled to commence on March 30, 2003, upon Reid's release from the custody of the Illinois Department of Corrections. The sentence was imposed by Judge Curran of the Eastern District of Wisconsin in 1999, revoking a three-year supervised release term that had been imposed as part of Reid's sentence for a 1994 federal conviction, and was to be served consecutively to the 15-year Illinois sentence Reid was ten serving. Because the conduct violating the terms of the supervised release had resulted in the harsh 15-year state sentence, Reid asked that any sentence for violating the conditions of his supervised release run concurrently with it, but Judge Curran rejected Reid's plea and imposed a consecutive sentence. Reid neither appealed the sentence nor filed a motion under 28 U.S.C. § 2255 to amend it.
Reid's petition asserted the following grounds for relief: (1) Judge Curran erroneously calculated Reid's offense level and he should have initially been sentenced only to probation, like his co-defendant; (2) Reid's initial sentence was "illegal," so he should receive compensating credit for time spent in state custody; (3) Reid's initial sentence was illegal," hence he could not properly be convicted of violating the terms of the supervised release it imposed; and (4) that his federal sentence should run concurrently because the state-court sentence punished him for the same conduct.
The court dismissed the petition on March 17, 2003, holding it lacked jurisdiction under 28 U.S.C. § 2241 to consider a challenge to Reid's conviction, original sentence, or supervised-release revocation sentence, because any such challenge would have to be raised by direct appeal or by motion under 28 U.S.C. § 2255. The court declined to construe Reid's petition as a motion under § 2255 to vacate his sentence (requiring the court to transfer it to the sentencing court) because as a § 2255 motion it would be hopelessly untimely.
Reid filed a "motion to amend judgment with additional findings" on March 28, 2003, which the court treats as a timely but frivolous motion to reconsider under Rule 59(e). Reid now claims that his petition should not have been construed as attacking his conviction or sentence, but as challenging the "execution" of his 1999 sentence. Reid asserts that the Attorney General acted unreasonably in denying him credit against his federal sentence pursuant to 18 U.S.C. § 3585(b) for his time in state custody. Reid claims this is what he intended all along, and attaches a letter addressed to the court dated February 7, 2003 — although Reid's statement in the letter that he needs discovery to present "indisputable proof of the illegality of my initial sentence" is inconsistent with this assertion.
In any event, the court addressed the petition Reid actually filed, and believes it was properly construed as a collateral attack on Reid's conviction and sentence over which the court lacked jurisdiction. But even assuming the coat had jurisdiction under 28 U.S.C. § 2241 to consider Reid's supposed challenge to the "execution" of his sentence, the petition could only be dismissed as frivolous.
The Attorney General could not, and cannot, credit Reid's time in state custody against his federal sentence. The Attorney General, rather than the sentencing court, computes the credit a defendant receives under 18 U.S.C. § 3585(b) — although only after he begins serving his federal sentence. United States v. Wilson, 503 U.S. 329, 333 (1992). Nevertheless, 18 U.S.C § 3585(b) credits the defendant only with time served either "a result of the offense for which the sentence was imposed" or "as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed," and "that has not been credited against another sentence."
In serving his state sentence, Reid was not serving time as a result of the offense for which his 1999 federal sentence was imposed. Although Reid's supervised release was revoked as a result of his state conviction, the new federal sentence represents deferred punishment for his original federal conviction in 1994. Johnson v. United States, 529 U.S. 694, 700-01 (2000). When Reid was sentenced in 1994, the court said, m effect, that Reid only had to serve ten months in prison, but if he misbehaved during the supervised release period he would have to serve more time for the original conviction. Although Reid violated the terms of his supervised release by committing a criminal offense resulting in a new conviction, he could have been sentenced to imprisonment for a violation of the terms of his supervised release that did not result in a new conviction, or that was not in itself a crime. Id., 529 U.S. at 700.
Reid's time in state custody qualified under the second part of § 3585(b) as time served "as a result of any other charge for which [Reid] was arrested after the commission of the offense for which the sentence was imposed," but Reid cannot receive credit against his federal sentence because it has been "credited against another sentence" — the Illinois sentence he has been serving. See United States v. Ross, 219 F.3d 592, 594 (7th Cir. 2000). Any claim for credit under 18 U.S.C. § 3585(b) would be frivolous, and the motion to reconsider is denied.
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