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Amos v. Walton

United States District Court, Seventh Circuit

December 13, 2013

DAVID ALLEN AMOS, #XXXXX-XXX, Petitioner,
v.
J.S. WALTON, Respondent. Crim. No. 04-cr-158-JCH (E.D. MO.)

MEMORANDUM AND ORDER

DAVID R. HERNDON, Chief District Judge.

I. INTRODUCTION

Before the Court is a Report and Recommendation (R&R) (Doc. 17) Magistrate Judge Donald G. Wilkerson issued pursuant to 28 U.S.C. § 636(b)(1)(B), FEDERAL RULE OF CIVIL PROCEDURE 72(b), and SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 72.1(a). Judge Wilkerson recommends that the Court GRANT petitioner David Allen Amos' petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1).

The R&R was sent to the parties, with a notice informing them of their right to file objections within fourteen days of service (Doc. 17-1). Respondent objects to the R&R's recommendation (Doc. 20). Thus, the Court must undertake de novo review of the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); SDIL-LR 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) (citing FED. R. CIV. P. 72(b)). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues for which the parties make specific objections. Id. However, the Court need not conduct a de novo review of the findings of the R&R for which no objections are made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt these findings after review for clear error. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). For the reasons discussed herein, the Court ADOPTS the R&R's recommendation.

II. OBJECTIONS

Respondent objects to the R&R's conclusions of law. Thus, the Court adopts the R&R's findings of fact without further discussion.[1] To summarize this dispute, Amos seeks federal credit for time he spent on a writ of habeas corpus ad prosequendum (WHCAP) from June 24, 2005 to March 31, 2006; the date that District Judge Jean C. Hamilton of the Eastern District of Missouri sentenced Amos.

1. Amos' Claim is not Cognizable Under § 2241

Respondent first objects to Judge Wilkerson's recommendation that Amos' claim is cognizable under § 2241. Respondent argues that Amos seeks a downward departure under the Sentencing Guidelines and thus his claims should have been raised on direct appeal or through a Section 2255 petition. See United States v. Ross, 219 F.3d 592, 593-94 (7th Cir. 2000); Prewitt v. United States, 83 F.3d 812 (7th Cir. 1996). However, the Court agrees with Judge Wilkerson that Amos' claim is a challenge to the BOP's interpretation or execution of his sentence. Thus, it is properly before the Court pursuant to § 2241. See Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Wilkins-El v. Marberry, 340 Fed.App'x. 320 (7th Cir. 2009).

2. Legal Conclusion is in Error

Amos was held pursuant to a WHCAP from June 24, 2005, until his federal sentencing on March 31, 2006. In reliance on the amended judgment entered by the sentencing court, the BOP will not give Amos "credit" towards his 140 month federal sentence because this 9 month period was credited towards his 17 month state sentence for parole violation. See 18 U.S.C. § 3585(b); United States v. McGee, 60 F.3d 1266 (7th Cir. 1995) ("[T]he statute authorizes credit for any time... that has not been credited against any other sentence.'").

At Amos' sentencing hearing, Judge Hamilton stated:

[P]ursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the Defendant, David Allen Amos, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 140 months. This term consists of a term of 140 months on each Counts I and II, the terms to be served concurrently and also concurrently with the undischarged portion of the term of imprisonment imposed in Cape Girardeau County Circuit Court, Docket No. CR592-101FX.

(Doc. 1-1, p. 21). Thereafter, the following exchange took place:

Defense Counsel: Your Honor, in light of your gracious decision to run this sentence concurrently with the undischarged term of Mr. Amos's sentence, if the Court were to consider the issue of time served in this matter, Mr. Amos has been in federal custody since June 24th of 2005. The unexpired term of imprisonment was imposed on April the 4th of 2005. If it's not your intention that he should receive credit for the time since June 24th, then we would ask ...

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