United States District Court, S.D. Illinois
ELMER J. PERRY, Petitioner,
MAUREEN BAIRD, Respondent.
MEMORANDUM AND ORDER
R. HERNDON, UNITED STATES DISTRICT JUDGE
J. Perry filed a petition for writ of habeas corpus under 28
U.S.C. §2241 arguing that he is entitled to pre-sentence
credit. (Doc. 1).
matter is now before the Court both on respondent's
Motion to Dismiss (Doc. 15) and on the merits of the petition
Facts and Procedural History
November 2012, petitioner was sentenced in the Eastern
District of Missouri to 48 months imprisonment for Use of a
Communication Facility to Facilitate a Drug Trafficking Crime
in violation of 21 U.S.C. §§ 843(B) and (D)(1), to
be followed by one year of supervised release. Doc. 12, Ex.
2, pp. 6-11.Petitioner argues that he is entitled to
credit on that sentence for the time he spent in federal
custody from January 7, 2012, through December 3,
had several Missouri state convictions before he was indicted
federally. As is relevant here, in January 2007, Perry was
sentenced in the Circuit Court for St. Louis County,
Missouri, in Case Nos. 2106R-00782B-01 (Burglary 2d Degree
and Stealing Over $500) and 2106R-02484-01 (Stealing a Credit
Card), to concurrent sentences of five years' probation.
Doc. 12, Ex. 2, pp. 19-20. On June 9, 2011, Perry's
probation was revoked in both cases and he was sentenced to
five years imprisonment with an anticipated conditional
release date of March 6, 2015. Ibid.
November 9, 2011, petitioner was sentenced in the Circuit
Court for the City of St. Louis, Missouri, in Case Number
1122-CR00828-01 (Possession of a Controlled Substance and
Possession of Drug Paraphernalia) to a six year term of
imprisonment to run concurrently with the sentences imposed
in Case Numbers 2106R-00782B-01 and 2106R-02484-01. Doc. 12,
Ex. 2, p. 21.
January 20, 2012, petitioner was transferred to temporary
federal physical custody pursuant to a federal writ ad
prosequendum on the Eastern District of Missouri charge
of Use of a Communication Facility to Facilitate a Drug
Trafficking Crime. He remained in temporary federal physical
custody until he was sentenced on November 28, 2012. Doc. 12,
Ex. 2, p. 34. His federal sentence was to run concurrently
with the Missouri state prison terms that he was then
serving. Ex. 2, p. 7.
the imposition of his federal sentence, Perry was returned to
the physical custody of the State of Missouri on November 30,
2012. Doc. 12, Ex. 2, p. 34.
Bureau of Prisons (“BOP”) prepared a sentence
calculation following petitioner's commitment to the BOP
on February 4, 2013. His sentence began to run on the date it
was imposed, November 28, 2012. He was given no prior credit
for time served. His statutory release date via good conduct
credit was calculated to be May 23, 2016. Doc. 12, Ex. 2, pp.
42-43. Se also, Affidavit of BOP Correctional Program
Specialist Forest B. Kelly, Ex. 2, pp. 1-4.
was released from the BOP on June 20, 2016, and began serving
his one year term of supervised release. Doc. 15, Ex. 1.
to Dismiss, Doc. 15
argues that the petition is moot because petitioner is no
longer in the custody of the BOP. Petitioner has not filed a
response to the motion.
28 U.S.C. § 2241(c), a writ of habeas corpus
“shall not extend to a prisoner” unless he is
“in custody.” The “in custody”
requirement is satisfied if the petitioner was in custody at
the time of the filing of ...