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Gary D. Fobair, Jr v. James N. Cross

October 3, 2012

GARY D. FOBAIR, JR., PETITIONER,
v.
JAMES N. CROSS,
RESPONDENT.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM AND ORDER

I. Introduction and Background

This matter comes before the Court on Magistrate Judge Frazier's Report and Recommendation ("the Report") recommending that the Court deny Fobair's habeas corpus petition (Doc. 20). Fobair filed timely objections to the Report (Doc. 25). Based on the following, the Court ADOPTS the Report in its entirety and DENIES Fobair's motion for evidentiary hearing.

On May 4, 2011, Gary Fobair, an inmate at the Federal Correctional Institution in Greenville, Illinois, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). Through his petition, Fobair claims (1) that his federal sentence should be reduced because he is entitled to time served credit from February 4, 2008 through November 17, 2009, or, alternatively, from April 13, 2009 through November 17, 2009, and (2) that the Bureau of Prisons ("BOP") manipulated Fobair's sentence and has been granted improper authority in determining not to award Fobair time credits, as such authority should rest with the sentencing court. On January 27, 2012, Respondent filed a response to the habeas corpus petition, arguing that Fobair's sentence was properly calculated and that Fobair is not eligible for prior custody credit (Doc. 13). Fobair filed a reply on February 14, 2012 (Doc. 19).

Judge Frazier issued the Report finding that Fobair's sentence was properly calculated under 18 U.S.C. § 3585, that he was not eligible to receive time credits, and that the BOP properly acted within its authority in calculating Fobair's sentence (Doc. 20). Therefore, the Report recommends that the Court deny Fobair's 28 U.S.C. § 2241 petition for writ of habeas corpus. On April 30, 2012, Fobair filed objections to the Report (Doc.25).

Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); Southern District of Illinois Local Rule 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). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.

II. Facts

On February 23, 2006, Fobair was convicted by the state of Missouri for burglary in the second degree and sentenced to four years of confinement. Fobair was paroled from this conviction on December 8, 2006. Then, on January 22, 2008, Fobair was arrested by sheriff's deputies in Missouri for resisting arrest after he initiated a high speed chase. Fobair's term of parole on his first conviction, the burglary conviction, was revoked on February 4, 2008, and he was received by the State of Missouri Department of Corrections the same day. Fobair was sentenced to three years of imprisonment by the state of Missouri on the state resisting arrest charge. Pursuant to Missouri law, Fobair was eligible for a minimum mandatory prison term of 40% of the three-year sentence, which would allow for his release on April 13, 2009. However, Fobair's release date would have been July 5, 2011 if he had served his full sentence.

Then, on August 20, 2008, Fobair was indicted in the Western District of Missouri on federal charges for conspiracy to distribute methamphetamine. Fobair was released from state custody to the United States Marshals Service pursuant to a federal writ for initial appearance in the methamphetamine case on September 15, 2008. On January 27, 2009, Fobair pled guilty to conspiracy to distribute more than fifty grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846. He was then sentenced on November 17, 2009 to a 76-month imprisonment term, five years of supervised release, and monetary penalties. Fobair's federal prison term was ordered to be served concurrently to the two Missouri state sentences for burglary and resisting arrest. On December 18, 2009, Fobair, while in federal custody, signed an order of release on parole from the Missouri Department of Corrections for his state charges.

Currently, Fobair is imprisoned at the Federal Correctional Institution in Greenville, Illinois, and his projected release date is May 24, 2015. On May 4, 2011, Fobair filed the petition for writ of habeas corpus raising the claim that his sentence was improperly calculated. Specifically, Fobair seeks (1) time served credit from February 4, 2008 through November 17, 2009, or alternatively, from April 13, 2009 through November 17, 2009, and (2) a finding that the BOP was granted improper authority in determining not to give Fobair credit for time served on his federal sentence.

III. Legal Standard

28 U.S.C. § 2241(c)(3) allows Fobair to obtain habeas corpus relief if he is being held in federal custody in violation of the Constitution or laws of the United States. Further, habeas corpus allows a prisoner to challenge the duration of custody. Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994)(citing Preiser v. Rodriguez, 411 U.S. 475, 490, 500, 93 S. Ct. 1827, 1836, 1841, 36 L.Ed.2d 439 (1973); Hanson v. Heckel, 791 F.2d 93 (7th Cir. 1986) (per curiam)). Since Fobair challenges the calculation of the duration of his custody, habeas corpus is an appropriate remedy.

18 U.S.C. § 3585 provides the basis for calculating federal terms of imprisonment, Section (b) of which reads as follows:

(b) Credit for prior custody.--A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention ...


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