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Loewe v. Cross

United States District Court, Seventh Circuit

December 16, 2013

CHARLES LOEWE, Plaintiff,
v.
JAMES CROSS, Defendants.

MEMORANDUM AND ORDER

CLIFFORD J. PROUD, Magistrate Judge.

Petitioner Charles Loewe, an inmate in the Federal Bureau of Prisons ("BOP") incarcerated at FCI-Greenville, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the calculation of his federal sentence. He contends that he should receive credit on his federal sentence for all of the time he spent in custody since his arrest on federal charges, including the time he was in the custody of the State of Missouri. For the reasons set forth below, the Petition is denied.

BACKGROUND

Petitioner Charles Loewe worked for LN & P Tire Service, a towing business in St. Louis owned by the Leisure family. United States v. Leisure, 844 F.2d 1347, 1351 (8th Cir. 1988). The Leisures were involved in organized crime, and sought to dominate the local labor unions in the St. Louis metropolitan area. Id. The Leisures murdered their opponents to the extent necessary to establish their domination and protect their position within the unions. See id. at 1352-53. Loewe took part in planning and executing a number of those killings and attempted killings. Id.

Both federal and state authorities had been investigating the Leisure group, and Loewe subsequently faced dual prosecution in federal and state court. He was indicted on April 14, 1983 in the United States District Court for the Eastern District of Missouri on federal charges of racketeering and conspiracy to commit racketeering (Doc. 12-1, p. 1). He was taken into federal custody the same day ( See Doc. 12-1, p. 1). Loewe was released from federal custody on bond on May 20, 1983 (Doc. 12-1, p. 1).

On November 10, 1983, while out on federal bond, Loewe was arrested by local authorities in St. Louis and charged with two counts of capital murder, two counts of first degree assault, and two counts of armed criminal action (Doc. 1-2, p. 4; Doc. 9-1, p. 2). Loewe could not afford to post the state bond, and so he remained in the custody of the State of Missouri (Doc. 1-1, p. 2; Doc. 1-2, p. 4).

Because Loewe was in the custody of state authorities, the Eastern District of Missouri issued writs of habeas corpus ad prosequendum on six occasions throughout 1983 and 1984 in order to secure Loewe's presence in federal court from the State of Missouri.[2] On each occasion, after Loewe appeared in federal court, he was returned to the custody of the State of Missouri.

On April 2, 1985, after a 45-day jury trial in federal court, Loewe was convicted of racketeering and conspiracy to commit racketeering (Doc. 12-3, p. 5). Loewe was sentenced on May 1, 1985 to an aggregate term of imprisonment of 36 years (Doc. 12-3, p. 6). After sentencing, Loewe was again returned to the custody of the State of Missouri for trial on the state charges (Doc. 1-2, p. 4).

The State of Missouri filed a new indictment against Loewe on May 22, 1985, dropping the two charges of armed criminal action. (Doc. 13-3, p. 1; Doc. 13-4). Loewe went to trial in state court on April 28, 1987 on only the two counts of first degree assault (Doc. 13-3, p. 18).[3] He was convicted by the jury on both counts, and sentenced on May 18, 1987 to twenty-five years on each count (Doc. 13-3, pp. 21-22). The state court ordered Loewe's state sentences to run consecutively to each other and to the thirty-six year sentence he received in federal court (Doc. 13-3, p. 22).

The Missouri Department of Corrections indicated Loewe began serving his state court sentence of 50 years on November 3, 1988 (Doc. 9-1, p. 14). He received 1, 820 days of credit toward his state sentence for the time he had spent in state custody up to that point (Doc. 9-1, p. 14; Doc. 1-2, p. 4). On July 10, 2001, Loewe was released by the State of Missouri on parole to a federal detainer (Doc. 9-1, p. 16). He began serving his federal sentence that same day (Doc. 9-1, p. 19). He received 37 days of credit toward his federal sentence for the time he spent in federal custody from the time of his arrest on federal charges on April 14, 1983 until he was released on bond on May 20, 1983 (Doc. 9-1, p. 19). However, the BOP determined that Loewe would not receive credit for the time he spent in state custody. Loewe's present mandatory release date, as calculated by the BOP, is on or about March 3, 2017 (Doc. 9, p. 2).

In November 2011, Loewe filed a petition in this Court seeking a writ of habeas corpus. Loewe alleges that the BOP mistakenly calculated his sentence under the Sentencing Reform Act of 1984, 18 U.S.C. § 3551-86, and refused to credit his federal sentence with the time he spent in custody since his arrest by federal authorities on April 14, 1983 until he began serving his federal sentence on July 10, 2001. He claims that the BOP should calculate his sentence under the Bail Reform Act of 1966, 18 U.S.C. § 3568, which entitles him to credit for that time. If the credit were granted, then he would be eligible for immediate release. There is no dispute that Loewe has exhausted his administrative remedies.

DISCUSSION

Loewe is requesting sentence credit and a recalculation of the time he has left to serve, which are issues that can be challenged under 28 U.S.C. § 2241. Romandine v. U.S., 206 F.3d 731, 736 (7th Cir. 2000). The writ of habeas corpus may be granted where the defendant is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). In this instance, Loewe's custody is purportedly in violation of 18 U.S.C. § 3568, which governs the calculation of his federal prison sentence.[4] Section 3568 provides in pertinent part:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward the service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term "offense" means any criminal offense, other than an offense triable by court-martial, military commission, provost ...

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