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Pope v. Krueger

United States District Court, C.D. Illinois, Peoria Division

December 13, 2016

JERMEL POPE, Petitioner,
J. KRUEGER, Respondent.



         Before the Court are Jermel Pope's motion for reconsideration of this Court's July 1, 2016 Order, ECF No. 17, and his motion for expedited ruling on the motion to reconsider, ECF No. 21. For the following reasons, the former motion is DENIED and the latter MOOT.


         The Court recounted in full the facts underlying Pope's original petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in its original order granting that motion and denying it in part. See Jul. 1, 2016 Order 1-3. A condensed version of events, drawn from Respondent's response to Pope's original petition, ECF No. 3, and from its sur-reply to Pope's traverse, ECF No. 10, is related here. Where facts are drawn from other sources, the source is cited.

         Pope was arrested on February 8, 2008 on Illinois pandering charges. While the state matter awaited disposition, he was charged for the same events under an analogous criminal statute in federal court in the Northern District of Illinois. He was then transferred to federal custody for prosecution on June 10, 2009, although he remained in Illinois's nominal custody, termed Illinois's “primary jurisdiction.” He was sentenced to a term of 100 months' imprisonment on the federal charge on June 20, 2009, and returned to an Illinois facility in August of that year. On August 24, 2009, he was sentenced to five years' imprisonment on the Illinois charges. The Illinois judge ordered that Pope's sentence run concurrent with the already-imposed federal sentence.

         Apparently pursuant to the Illinois court's order that the sentence run concurrent to the federal sentence already imposed, Illinois authorities then “thought it appropriate to transfer Pope to the United States' [sic] Marshals, who in turn housed Pope at MCC [or, Metropolitan Correctional Facility, ] Chicago . . . .”[1] Rodriguez Decl. ¶ 15, Resp. Order Ex. 1; ECF No. 19-1. Pope was incarcerated at MCC Chicago from August 31, 2009 to May 25, 2010. During his time at MCC Chicago, the federal Bureau of Prisons (“BOP”) recorded Pope's status as “holdover, ” rather than “designated, ” indicating that in its view, he had not been received into federal custody. Id. 16-17. He was eventually transferred back to an Illinois Department of Corrections (“IDOC”) facility, until he was paroled by Illinois on August 6, 2010. At this point, he was again transferred to BOP custody, where he remains, to serve his federal sentence.

         Despite the Illinois sentencing court's intention to sentence Pope concurrently with his federal sentence, BOP determined, upon receiving him, that Pope's federal sentence should begin to run on the date it received him from Illinois's custody-August 6, 2010. BOP based its decision on 18 U.S.C. § 3585(b), which declares in pertinent part that a defendant received into federal custody cannot be credited with time already incarcerated if that period of incarceration has been credited against “another sentence, ” in this case, the Illinois sentence. Pope petitioned BOP to designate retroactively his place of incarceration on the Illinois sentence as the place of his federal incarceration, termed a nunc pro tunc designation, which would have had the effect of crediting some or all of the time he had spent in Illinois custody against his federal sentence. BOP reviewed and denied this application in accordance with its policies and federal statute. See BOP Program Statement 5160.05; 18 U.S.C. § 3621(b). Pope then filed a § 2241 petition in this Court on September 29, 2014, arguing that denial of the nunc pro tunc designation was improper, and that the period of time he spent in at MCC Chicago ought to have been credited against his federal sentence. Petition 26, ECF No. 1. He therefore asked that his sentence be reduced by the corresponding amount of time. Id.

         In its Order of July 1, 2016, the Court partly granted Petitioner's request, insofar as it noted that the Illinois sentencing court had indicated its intention to credit Pope with the span of time between February 8, 2008 and August 24, 2009, but that it had calculated this span of time as being 534 days, when in fact it was 564 days. See Jul. 1, 2016 Order 6. Thus, this Court reasoned, Pope was due a credit of 30 days against his outstanding federal sentence. Id. However, the Court rejected Pope's broader claim that he was entitled to a nunc pro tunc designation, and a related argument that he had not actually been in Illinois custody for part of his period of incarceration prior to being received into BOP custody. Id. at 7-11. And finally, it noted that there was a question of fact as to whether Pope had been in primary Illinois custody during the period when he was incarcerated at MCC Chicago, and directed Respondent to address this issue. Id. at 12. On July 11, 2016, Pope filed the motion for reconsideration currently before the Court. On July 13, 2016, Respondent filed a response, as the Court had directed it to, outlining its position on the period of time Pope had spent at MCC Chicago.


         In his motion for reconsideration, Pope (a) argues that the Court erroneously interpreted Willis v. United States, 438 F.2d 923, 925 (5th Cir. 1971), and Kayfez v. Gasele, 993 F.2d 1288, 1288 (7th Cir. 1993), Mot. Reconsider 1-2; (b) repeats his argument that he was in primary federal custody at least for the period of time he was incarcerated at MCC Chicago, id. at 2-4; and (c) argues that BOP was required to credit him with some of the time he spent in Illinois custody because of an Illinois court's attempt to amend his sentence after he had served it, id. at 5-6. Respondent's filing, although it does not directly address Pope's motion to reconsider, includes the declaration of a BOP official to the effect that Pope was in primary Illinois custody during his entire stay at MCC Chicago, and was credited with that time by IDOC, thus precluding BOP from crediting it against his sentence. Resp. Order 1. Respondent further asserts that Pope was in fact credited with the 30-day period the Court found he had not been credited with, and that Pope should not receive the benefit of the 30-day reduction already ordered by the Court. Id.

         I. Standard on a Motion to Reconsider

[A]ny order or other decision . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end [an] action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b). A court has the ability, on a party's motion or sua sponte, to reconsider its earlier orders that did not adjudicate all remaining claims. This ability has been termed the court's “ordinary power to conduct pending proceedings and rethink earlier orders.” Kapco Mfg. Co. v. C & O Enterprises, Inc., 773 F.2d 151, 154 (7th Cir. 1985). However, “[m]otions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Caisse Nationale de Credit v. CBI Industries, 90 F.3d 1264, 1269 (7th Cir. 1996). “It is inappropriate to argue matters that could have been raised in prior motions or rehash previously rejected arguments in a motion to reconsider.” United States v. Zabka, No. 1:10-CV-1078, 2013 WL 9564253, at *2 (C.D. Ill. Aug. 19, 2013) (citing Caisse Nationale, 90 F.3d at 1270).

         II. ...

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