United States District Court, S.D. Illinois
BENJAMIN A. JOHNSON, Petitioner,
M. BAIRD, Respondent.
MEMORANDUM AND ORDER
CLIFFORD J. PROUD UNITED STATES MAGISTRATE JUDGE
Benjamin A. Johnson filed a Petition for Writ of Habeas
Corpus pursuant 28 U.S.C. §2241, challenging the
calculation of his sentence. Petitioner contends that he
should be given credit on his federal sentence for time he
spent in custody prior to the imposition of sentence, despite
the fact that he was given credit for that time on a state
sentence. He also suggests that U.S.S.G. §5G1.3 should
be applied to the calculation of his sentence.
before the Court is Johnson's Amended Petition, Doc. 6.
Petitioner claims that he is entitled to credit for 1, 530
days, representing the period from October 27, 2005, to
January 4, 2010.
November 14, 2008, Johnson was sentenced to concurrent terms
of 150 months imprisonment on charges of conspiracy to
distribute five kilograms or more of cocaine and money
laundering in the Eastern District of Michigan, Case No.
05-cr-80955-CDP, to be followed by 5 years of supervised
release. Doc. 29, Ex. 10. An amended judgment was entered in
October 2009. The purpose of the amendment was to
“clarify that federal sentence is to be served
concurrent with the state sentence.” Petitioner was
again sentenced to two concurrent terms of 150 months
imprisonment. The amended judgment specified that he
“should receive federal credit retroactively from
November 14, 2008.” Ex. 11, pp. 2-3.
time his federal sentence was imposed, Johnson was in the
custody of the Michigan Department of Corrections. He had
been sentenced in July 2004 to 27 months imprisonment on
state drug charges. He was paroled in April 2005, but
violated his parole shortly thereafter. He was then sentenced
on the parole violation to 42 months to 7 years imprisonment
on the first count and to 36 months to 30 years on the second
count. He was serving the parole violation sentence when his
federal sentence was imposed. Ex. 2, p. 16.
November 18, 2009, Johnson was paroled by the state of
Michigan and taken into federal custody to serve the
remainder of his federal sentence in the BOP. Ex. 4, p. 6.
argues that petitioner has failed to exhaust administrative
remedies. Petitioner seems to concede that point, as he
asserts in the amended petition that exhaustion would be
futile in his case. Doc. 6, p. 2.
Attorney General, acting through the Bureau of Prisons,
calculates the sentence “as an administrative matter
when imprisoning the defendant.” United States v.
Wilson, 112 S.Ct. 1351, 1355 (1992). The calculation,
i.e., the execution, of the sentence can be challenged in a
§2241 petition. However, before the Court can consider
such a claim, petitioner must exhaust administrative
Seventh Circuit has squarely held that a claim concerning the
computation of a sentence can be considered a petition for
habeas relief only after administrative remedies have been
exhausted. Clemente v. Allen, 120 F.3d 703, 705 (7th
Cir. 1997). It is true that the exhaustion requirement for a
§2241 case is not created by statute, and is not
jurisdictional. Nonetheless, the Seventh Circuit has clearly
stated that exhaustion is required in cases such as this.
Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir.
Bureau of Prisons has created an Administrative Remedy
Program which “allow[s] an inmate to seek formal review
of an issue relating to any aspect of his/her own
confinement.” 28 C.F.R. § 542.10(a). The Program
is described in detail in the Response to the Petition, Doc.
29, p. 5.
petitioner started the process by submitting an institutional
level request to USP-Marion seeking credit on his sentence in
February 2016. However, his appeals to the Regional Office
and the Central Office were rejected because they did not
comply with the administrative rules. Doc. 29, Ex. 14; Doc.
31. Therefore, petitioner has failed to exhaust
Johnson had properly exhausted administrative remedies, he
would not ...