The opinion of the court was delivered by: Herndon, Chief Judge:
Petitioner, currently incarcerated in the Federal Correctional Institution at Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the sentence that was imposed on November 24, 1997, after a jury trial in the Eastern District of Michigan (See United States v. Thelen, Case No. 97-cr-20015-RHC-CEB). He asserts that new Supreme Court jurisprudence invalidates his label as a "career offender" during sentencing pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1. Separately, petitioner challenges the aggregation of his sentences under 18 U.S.C. § 3584(c). This case is now before the Court for preliminary review pursuant to Rules 1(b) and 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
On September 29, 1986, petitioner pled guilty to Unlawful Delivery of Marijuana in Tulsa County District Court, Case No. CF-1986-2925 (Doc. 1, p. 12). On November 26, 1986, the trial court withheld a finding of guilt, placed petitioner on probation, and deferred his sentencing until November 1, 1991 (Doc. 1-1, p. 5). According to the order of probation, he would be discharged without a judgment of guilt, and the case would be dismissed, if petitioner successfully completed his five-year probation term. However, on March 24, 1988, the Oklahoma district attorney filed an application to accelerate judgment and sentencing due, in part, to petitioner's unrelated conviction for forgery in Michigan. See Thelen v. United States, 131 F. App'x 61, 67 (6th Cir. 2005). Petitioner eventually completed a sentence for various Michigan crimes but was never sentenced for this Oklahoma crime, despite the March 24, 1988 motion to accelerate judgment (Doc. 1-1, p. 3).
In the case which is the subject of the instant petition, petitioner was sentenced on November 24, 1997, following his jury trial, to thirty years and thirty-seven years on two drug trafficking counts, and ten years for being a felon in possession of a firearm, to be served concurrently (Doc. 1, p. 7). Pursuant to U.S.S.G. § 4B1.1, petitioner received a sentencing enhancement for being a career offender, with two predicate offenses: (a) his disputed November 25, 1986, Oklahoma conviction and (b) an undisputed November 3, 1988, Michigan marijuana conviction (Doc. 1, p. 7). Several months after this sentence was imposed, on March 5, 1998, petitioner's 1986 Oklahoma case was dismissed upon request of the state. (Doc. 1-1, p. 7). It appears that no conviction was ever entered.
Since his federal sentencing, petitioner has filed numerous appeals concerning both his November 24, 1997, sentencing and his 1986 Oklahoma case. On June 18, 1999, the Sixth Circuit affirmed petitioner's guilty verdict from his federal jury trial. United States v. Thelen, 182 F.3d 919 (6th Cir. 1999). Petitioner then filed a § 2255 motion to vacate his sentence on June 14, 2000 (Doc. 72 in criminal case). On March 28, 2005, the district court's denial of petitioner's § 2255 motion was affirmed by the Sixth Circuit. Thelen v. United States, 131 F. App'x 61 (6th Cir. 2005), cert. denied, 546 U.S. 969 (2005).
Petitioner also filed challenges in the Tenth Circuit to the disposition of the 1986 Oklahoma case. On December 7, 2009, he filed a § 2254 petition for writ of habeas corpus with the Northern District of Oklahoma (Doc. 1 in Thelen v. Oklahoma, 2010 WL 1629078 (N.D. Ok. 2010)). The Tenth Circuit ultimately affirmed dismissal of this petition for a lack of jurisdiction, stating that petitioner was not in custody under his 1986 sentence. Thelen v. Oklahoma, 396 F. App'x 489, 491 (10th Cir. 2010). The Tenth Circuit furthermore recommended that Petitioner bring his challenge through a § 2255 petition filed in the Eastern District of Michigan. Id.
Petitioner followed that recommendation, but his second § 2255 motion was denied by the Sixth Circuit on September 15, 2011 (Doc. 123 in criminal case). Following that denial, petitioner filed the instant action on January 26, 2012.
Petitioner makes two unrelated arguments in his § 2241 motion: (a) the Bureau of Prisons ("BOP") unlawfully aggregated his sentences, which bars him from participating in the BOP's Residential Drug Abuse Program ("RDAP") and (b) the dismissal of his 1986 Oklahoma charge has rendered it ineligible for use as a predicate offense in sentencing him as a career offender. The Court shall address these claims separately for purposes of threshold review.
Petitioner argues that the aggregation of sentences for his violent (felon in possession) and non-violent (drug trafficking) offenses unlawfully prevents him from participating in RDAP, which could reduce his total sentence by one year. Petitioner concedes that under 18 U.S.C. § 3584(c): "multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment." However, he argues that this aggregation extends his ten-year felon in possession sentence by an extra twenty-seven years, ultimately to his detriment.
Upon completion of RDAP, 18 U.S.C. § 3621(e)(2)(B) allows for the BOP to reduce a prisoner's sentence by a term no greater than one year. However, § 3621(e)(2)(B), by its own terms, applies only to a prisoner convicted of a nonviolent offense. Petitioner's argument hinges on whether, for the remainder of his prison term, he should be classified as a nonviolent offender for purposes of § 3621(e)(2)(B) despite the mandatory aggregation of his sentences pursuant to § 3584(c).
The issue of whether § 3584(c) sentence aggregation can preclude a prisoner's eligibility for early release has not yet been reached by the Seventh Circuit. However, in cases dealing with the classification of prisoners as violent offenders under § 3621(e)(2)(B), the Seventh Circuit has made it clear that the contemplated sentence reduction is subject to the complete discretion of the BOP. See Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir. 1997) ("Commission of a 'nonviolent offense' makes a prisoner eligible for consideration but does not require the Bureau to grant the boon he seeks. Eligibility is not entitlement."); Parsons v. Pitzer, 149 F.3d 734, 737 (7th Cir. 1998) ("Congress vested discretionary authority with the BOP to determine an inmate's eligibility for early release pursuant to 18 U.S.C. § 3621(e)(2)(B)"); see also Lopez v. Davis, 531 U.S. 230, 231 (2001). ...