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Commodore v. Walton

United States District Court, Seventh Circuit

January 14, 2014

COREY COMMODORE, Petitioner,
v.
J.S. WALTON, Respondent.

MEMORANDUM AND ORDER

CLIFFORD J. PROUD, Magistrate Judge.

Petitioner Corey Commodore, an inmate in the Federal Bureau of Prisons ("BOP") incarcerated at USP-Marion, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the BOP's determination regarding the commencement date of his federal sentence. For the reasons set forth below, the Petition is denied.

FACTUAL BACKGROUND

On April 14, 2005, while on parole in the Commonwealth of Kentucky for armed robbery, Corey Commodore was arrested by local authorities in Lexington, Kentucky and charged with firearms violations, criminal trespassing, and fleeing/evading the police (Doc. 14-1, p. 3, Doc. 1-1, p. 6). On July 2, 2005, federal authorities indicted Commodore on charges related to the same incident (Doc. 14-1, p. 3). The Commonwealth of Kentucky then formally revoked Commodore's parole on July 13, 2005 (Doc. 14-1, p. 3), and due to the federal prosecution, dismissed the state charges against Commodore (Doc. 14-1, p. 3).

On August 8, 2005, because Commodore was in the custody of Kentucky serving his parole revocation sentence, the United States District Court for the Eastern District of Kentucky issued a writ of habeas corpus ad prosequendum so that Commodore could be taken into temporary federal custody to proceed with the federal charges against him (Doc. 14-1, pp. 9-10). Commodore appeared on August 29, 2005 in the Eastern District of Kentucky for his arraignment pursuant to the writ ad prosequendum ( See Doc. 14-1, pp. 9-10). Several months later, Commodore pleaded guilty to one count of felon in possession of a firearm and ammunition, and one count of possession of a firearm with an obliterated serial number (Doc. 14-1, p. 11). On February 3, 2006, Commodore was sentenced to a term of 57-months imprisonment and three years of supervised release (Doc. 14-1, pp. 11-16). His federal sentence was ordered to run consecutive to any prior sentence (Doc. 14-1, pp. 11-16).

The writ ad prosequendum required Commodore to be returned to state custody upon completion of the federal proceedings (Doc. 14-1, pp. 9-10). However, federal authorities mistakenly transferred Commodore to the Federal Transfer Center in Oklahoma City where he was designated to serve his federal sentence at the Federal Correctional Institution in Terre Haute, Indiana ("FCI-Terre Haute") (Doc. 1; Doc. 14-1, p. 4). Commodore arrived at FCI-Terre Haute on March 8, 2006 (Doc. 1; Doc. 14-1, p. 4).

Less than two weeks after his arrival at FCI-Terre Haute, the prison staff discovered the mistake-Commodore was in federal custody pursuant to the writ ad prosequendum, and therefore still in the primary custody of the Commonwealth of Kentucky (Doc. 14-1, p. 4). On March 22, 2006, Commodore was released from the writ for transportation back to the Kentucky Department of Corrections to complete his state sentence (Doc. 1; Doc. 14-1, pp. 4, 7). The United States Marshal Service then filed a detainer with the Commonwealth of Kentucky (Doc. 1; Doc. 14-1, pp. 4, 17).

On June 29, 2011, Commodore was released from the Kentucky Department of Corrections on parole to the federal detainer (Doc. 1; Doc. 14-1, p. 4). He was sent to the United States Penitentiary in Marion, Illinois where he is presently incarcerated (Doc. 14-1, p. 4). The BOP computed Commodore's federal sentence as commencing on June 29, 2011 (Doc. 14-1, p. 4). The BOP also determined that Commodore should not receive credit toward his federal sentence for any of the time he spent in custody from the date of his state arrest on April 14, 2005 through the date he was paroled from state custody on June 29, 2011 because he received credit against his state sentence for that time (Doc. 14-1, pp. 4, 17, 18).

PROCEDURAL BACKGROUND

On May 27, 2010, Commodore filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the Eastern District of Kentucky challenging the computation of his state sentence ( See Doc. 11-2). That petition was dismissed without prejudice for failure to exhaust his administrative remedies (Doc. 11-2).

On September 8, 2011, Commodore filed a second § 2241 petition in the Southern District of Illinois challenging the computation of his federal sentence. Commodore v. Roal, Case No. 11-cv-818-DRH (S. D. Ill.). That petition was also dismissed without prejudice for failure to exhaust his administrative remedies.

On May 8, 2013, after exhausting his administrative remedies ( see Doc. 1-1, pp. 1-12), the present § 2241 action was filed (Doc. 1). Commodore argues that, in accord with 18 U.S.C. § 3585(a), his federal sentence commenced on March 8, 2006, the day he was received at FCI-Terre Haute. Commodore further argues that his federal sentence could not be interrupted by the government so as to require him to serve it in installments. In other words, his federal sentence commenced on March 8, 2006 and continued to run during the period when he was returned to state custody, between March 24, 2006, and June 29, 2011. The essence of Commodore's argument is that while his federal sentence was supposed to run consecutive to his state sentence, his mistaken designation and delivery to FCI-Terre Haute converted his federal sentence to run concurrent to his state sentence. As a result, Commodore argues that his federal sentence has been served in its entirety and requests the Court to order his immediate release from prison.

DISCUSSION

The authority to calculate a federal prisoner's period of incarceration for the sentence imposed, and to provide credit for time served, is delegated to the Attorney General, acting through the Bureau of Prisons. United States v. Wilson, 503 U.S. 329, 335 (1992). In instances, such as Commodore's, where the prisoner believes the BOP has erred in its calculation of his federal sentence, the prisoner can challenge the execution of his sentence by bringing a ...


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