United States District Court, C.D. Illinois, Peoria Division
OPINION & ORDER
BILLY McDADE United States Senior District Judge.
April 25, 2016, Petitioner filed a petition for habeas corpus
under 28 U.S.C. § 2241 seeking immediate release from
the custody of the Bureau of Prisons (“BOP”) on
the ground that his proper term of imprisonment had expired.
(Doc. 1). He alleges that the BOP has not properly computed
his term of imprisonment by failing to account for time he
spent in presentence custody and good time credit he has
earned. (Doc. 1 at 2). On July 6, 2016, the Government
responded to Petitioner’s petition with substantial
legal and factual explanation of why the petition fails on
its merits. (Doc. 10). Petitioner has now filed a motion to
expedite ruling on his petition and an intention to forego
his right to file a reply brief to the Government’s
response and rely on the argument presented in his original
2241 petition. (Docs. 13, 14). For the reasons stated below,
Petitioner’s petition for habeas corpus under 28 U.S.C.
§ 2241 (Doc. 1) is DENIED. All other
motions are terminated as moot.
is currently incarcerated at the Federal Correctional
Institution in Pekin, Illinois under a federal sentence
imposed by a United States District Court in Minnesota.
Petitioner challenges the execution of his sentence and
argues that the BOP has miscalculated the certain good time
credit, completion of certain drug treatment courses, and
time he already served in custody before his sentence was
September 2012, a Minnesota state court revoked
Petitioner’s probation and on October 10, 2012,
sentencing him to a 365 day term-of-imprisonment with credit
for ninety days in pre-trial custody. (Doc. 10-2 at 37). On
October 15, 2012, Petitioner was indicted on several federal
crimes. On October 24, 2012, the United States District Court
for the District of Minnesota issued a Writ of Habeas
Corpus Ad Prosequendum and a Warrant for Arrest for
Petitioner as Petitioner was in state custody exclusively at
the time. On that same day, he was removed from the exclusive
custody of the state of Minnesota pursuant to the Writ of
Habeas Corpus Ad Prosequendum, (Doc. 10-2 at 73).
Thereafter, he spent 262 days in Sherburne County Jail in
Minnesota, the majority of that time still under the state
sentence for his probation revocation. That state sentence
ran out on March 13, 2013. However, Petitioner was also being
held by the state of Minnesota for sentencing for a domestic
assault/terroristic threat conviction. (Doc. 10-2 at 21). The
State of Minnesota characterized Petitioner’s stay in
Shelburne County jail as “dual commitment” on one
of its forms submitted by the Government. (Doc. 10-2 at 78).
On July 16, 2013, Petitioner was sentenced by the Minnesota
state court to twenty-one months incarceration with 310 days
credited for time served. His “Maximum Expiration
Date” was set for June 9, 2014. Petitioner was released
from his state sentence for the domestic violence/terroristic
threat conviction on November 11, 2013.
in January 2013, Petitioner pled guilty to conspiring to
distribute heroin in violation of 21 U.S.C. §§ 841
and 846. (Docs. 1 and 295, United States v. Banks, et.
al., No. 0:12-cr-00253-MJD-JSM-8 (D. Minn.)). He was
sentenced to a total of sixty months imprisonment and four
years supervised release on September 24, 2013. (Doc. 453,
United States v. Banks, et. al., No.
0:12-cr-00253-MJD-JSM-8 (D. Minn.)). His release date
presented on the BOP website is March 15, 2017.
prisoners may utilize 28 U.S.C. § 2241 to challenge the
execution of their sentences. McCall v. United
States, 304 F. App’x 449, 450-51 (7th Cir. 2008)
(citing Valona v. United States, 138 F.3d 693, 694
(7th Cir. 1998). In this case, the threshold inquiry is
whether the Petitioner has demonstrated that he is being held
in custody in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
argues that he should have received “pretrial credit
from the day the U.S. Marshall (sic) took custody over [him
on] 10/24/2012 to the day of sentencing”. (Doc. 1 at
9). Petitioner is incorrect. Petitioner was not held in the
exclusive custody of the U.S. Marshal awaiting sentencing for
his federal offense. He was under dual custody serving out
his state court sentences. His state sentence ran out on
November 11, 2013, after his federal sentence began
18, United States Code, Section 3585(a) provides that
“[a] sentence to a term of imprisonment commences on
the date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence service
of sentence at, the official detention facility at which the
sentence is to be served.” Paragraph (b) of the same
section provides that a defendant
shall be given credit toward the service of a term
of imprisonment for any time he has spent in official
detention prior to the date the sentence commences as a
result of the offense for which the sentence was imposed
or as a result of any other charge for which he was arrested
after the commission of the offense for which the sentence
was imposed that has not been credited against another
sentence. 18 U.S.C. § 3585(b) (emphasis added). A
federal prisoner has no right to prior time served credit
toward a federal sentence for time spent in federal custody
pursuant to a writ of habeas corpus ad prosequendum issued to
secure the prisoner’s presence from state officials.
See Flick v. Blevins, 887 F.2d 778, 782 (7th Cir.
Petitioner is not entitled to pre-sentence credit against his
federal sentence for the time he spent in the primary custody
of Minnesota state authorities from September 10, 2012,
through the date of his federal sentence on September 24,
2013, save for five days in June 2013 that already had been
credited toward his federal sentence. (Doc. 1 at 20).
Conduct Time & ...