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Muller v. Zuercher

November 17, 2008


The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge


Before the Court is a Petition for the Writ of Habeas Corpus under 28 U.S.C. § 2241. For the reasons set out below, the Petition is DENIED.


The Court set out the relevant facts of this case in its Order of January 3, 2008. They are worth repeating here. Petitioner is currently incarcerated at the Federal Correction Institution in Pekin, Illinois. In 1985, following a jury trial, Petitioner was sentenced in the U.S. District Court for the District of Hawaii for various offenses that occurred on the high seas. The sentences relevant to this Petition include: (1) a life sentence for felony murder in violation of 18 U.S.C. § 1111; and (2) a consecutive five-year sentence for using and carrying a firearm during the commission of crimes of violence in violation of 18 U.S.C. § 924(c).

Because the offenses in question occurred before November 1, 1987, Petitioner is eligible for parole under the Parole Commission and Reorganization Act, 18 U.S.C. §§ 4201-4218 (1984); Benny v. United States Parole Commission, 295 F.3d 977, 981 (9th Cir. 2002). Parole eligibility applies to each of Petitioner's sentences, except the § 924(c) sentence.*fn1

At the time Petitioner was sentenced, the BOP had a policy in place whereby a § 924(c) sentence was to be served first, regardless of the specifications in the commitment order. As a result, Petitioner was made to serve his 924(c) nonparolable term first, even though the sentencing court's commitment order prescribed otherwise. Under this ordering, after the completion of his five-year term, Petitioner was to begin his life sentence. And ten years into the life sentence Petitioner would be eligible for parole.

In 1997, however, the Supreme Court issued a decision in United States v. Gonzales, 520 U.S. 1 (1997), which affected the BOP's method of calculating the parole eligibility date of a 924(c) sentence. Specifically, the Supreme Court held that nothing in the plain language of the statute required that a § 924(c) sentence always be served first. According to Respondent, in light of Gonzalez, the BOP changed its policy and began re-computing sentences.

In March of 1998, the BOP re-computed Petitioner's sentences, putting his life sentence before his § 924(c) sentence. Based upon that re-computation, Petitioner could have been paroled to his § 924(c) sentence in 1995, two years before Gonzales. In other words, based upon the re-computation, if the Parole Commission had felt that Petitioner was eligible for parole in 1995, he would have been paroled.

If Petitioner was paroled, he could have begun serving his § 924(c) sentence in 1995, and he could have been released on parole after serving that five-year sentence.

However, on January 20, 1998, before the order of Petitioner's sentences was swapped in light of Gonzalez, the Parole Commission issued a Notice of Action regarding Petitioner's parole eligibility. The Notice stated that, due to the aggravating violent circumstance of Petitioner's underlying crime as well as several infractions which occurred while in prison, Petitioner's eligibility for parole was continued-or delayed-for fifteen years, until 2013. Petitioner appealed the Parole Commission's Notice of Action numerous times and the decision was affirmed in 1998, 2000, 2002, 2004, and 2006. Petitioner now asks this Court to order his release from confinement.


In order for a court to grant relief under 28 U.S.C. § 2241, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21 (1975). Federal prisoners are required to exhaust their administrative remedies before bringing section 2241 petitions challenging the execution of their sentences. See Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir. 1983).


On January 3, 2008, the Court ordered the parties to submit additional briefing in this case. The Court noted that there were two possible claims that Petitioner could be asserting: (1) that the BOP's decision to order Petitioner's sentences differently than set forth in the sentencing court's commitment order resulted in a constitutional violation and (2) that the Parole Commission's decision to give Petitioner a fifteen-year parole reconsideration date violated the Constitution. At the time of the January 3 Order, it was clear to the Court that Petitioner had not exhausted administrative remedies as to the "reordering" claim. The correctness of that finding is equally as clear ...

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