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Perry v. Baird

United States District Court, S.D. Illinois

September 29, 2016

ELMER J. PERRY, Petitioner,
v.
MAUREEN BAIRD, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON, UNITED STATES DISTRICT JUDGE

         Elmer 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).

         This matter is now before the Court both on respondent's Motion to Dismiss (Doc. 15) and on the merits of the petition itself.

         Relevant Facts and Procedural History

         In 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.[1]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, 2012.[2]

         Perry 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 On June 9, 2011, Perry's probation was revoked in both cases and he was sentenced to five years imprisonment with an anticipated conditional release date of March 6, 2015.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.

         On 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.

         On 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.[3] 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.

         Following 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.

         The 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.

         Perry was released from the BOP on June 20, 2016, and began serving his one year term of supervised release. Doc. 15, Ex. 1.

         Motion to Dismiss, Doc. 15

         Respondent 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.

         Under 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 ...


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