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Unger v. Walton

United States District Court, Seventh Circuit

November 26, 2013

ALBERT UNGER, Petitioner,
v.
J. S. WALTON, Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, District Judge.

I. Introduction

This matter comes before the Court on a Report and Recommendation (the "Report") (Doc. 29). Unger objects to the Report (Doc. 32) and the Government has responded to his objections (Doc. 33). Based on the following, the Court ADOPTS the Report in its entirety.

Unger, a federal prisoner currently incarcrerated at the United States Penitentiary (USP) in Marion, Illinois, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the legality of the Bureau of Prisons' (BOP) designation of a federal facility for service of his federal sentence which, he argues, resulted in a denial of credit for 365 days of time spent in a county facility prior to commencement of his federal sentence. Specifically, Unger argues the actions of the BOP rendered his state and federal sentences consecutive in violation of his constitutional rights.

Pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Donald G. Wilkerson submitted a Report on March 11, 2013 (Doc. 29). The Report recommends that this Court deny and dismiss Unger's petition for writ of habeas corpus. The Report was sent to the attorneys of record and to Unger with a notice informing them of their right to appeal by way of filing "objections" within ten days of service of the report. Because timely objections have been filed, the Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B). 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

Unger was arrested on August 10, 2009, by local authorities in Las Vegas, Nevada on state charges and during this time, he was detained in Clark County Detention Center ("CCDC"). On October, 8, 2009, the U.S. Marshals "borrowed" Unger pursuant to a writ of habeas corpus ad prosequendum [1] in regards to federal charges pending in the United States District Court for the Northern District of Indiana. Unger plead guilty to the federal charge and on July 9, 2010, he was sentenced to 27 months of imprisonment. The judgment did not state whether his sentence should run consecutive or concurrent to future state sentences.

On September 23, 2010, Unger returned to CCDC to face the Nevada Charges. On October 27, 2010, the State of Nevada sentenced Unger to "365 Days Credit for time served, CONCURRENT with [his federal sentence]" and placed him on probation (Doc. 18-1 at Att. 6).

On November 10, 2010, Unger was transferred to the custody of local authorities in Marian County, California to face pending charges, and on February 23, 2011, he was sentenced to a term of three years, consecutive to any other sentence. While serving that sentence, Unger was sentenced for other charges pending in California and Colorado.

On July 5, 2011, Unger filed a letter asking the federal sentencing court to recalculate his federal sentence in order to credit him with time served in Nevada. The Court interpreted Unger's letter as a motion to correct his judgment or to review the BOP's computation of his credits for time served awaiting sentencing, and the motion was denied. The Court explained, "[i]t is the Attorney General, through the BOP, that computes credit for time served, not the sentencing court" (Doc. 18-3 at 7). The Court also noted that Unger must exhaust his administrative remedies with the Attorney General in order to seek review of the BOP's computation of his credits.

On December 1, 2011, while Unger remained incarcerated in California, Unger's attorney sent a letter to BOP's North Central Regional Office requesting CCDC to be retroactively designated as the facility where Unger's federal sentence commenced.[2] Unger's attorney also contacted the BOP's Designation and Sentence Computation Center ("DSCC") prior to Unger's entry into federal custody. Unger contends he never received a response to his request.

On July 17, 2012, and August 20, 2012, Unger filed additional letters with the federal sentencing court requesting credit towards his federal sentence. The Court interpreted the letters as motions to correct Unger's judgment or to review the BOP's computation of his credits for time served, and the motions were denied. In making the decision, the Court explained the proper procedure for exhausting administrative remedies, [3] and further stated that it was not clear if the administrative remedies process even applied in this case, but even assuming that it did, Unger's motion must be denied because the record contained no indication that Unger brought the Regional Office's lack of response to the next level of administrative review, that being the General Counsel.

On July 27, 2012, Unger was received into federal primary custody to begin service of his federal sentence. On October 1, 2012, Unger was transferred to the Federal Prison Camp at USP-Marion, at which time he filed a Form BP-8 with his Correctional Counsel regarding his sentence calculation. Unger received a written response to his Form BP-8, but never pursued any further review as outlined by the BOP's Administrative Remedy Program. However, Unger was notified that he received 92 days of prior custody credit towards his sentence, but his request for nunc pro tunc designation was not granted. On November 16, 2012, Unger filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

III. Analysis

Unger raises a number of objections to the Report and the Court will address each in turn. As a preliminary matter, the Court notes that petitioner labeled an initial section "Objections to the Factual Findings" wherein petitioner objected to the Report's finding that Unger failed to exhaust his administrative remedies and provided the Court with "clarified and additional facts" relating to these objections. While ...


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