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Johnson v. Baird

United States District Court, S.D. Illinois

March 21, 2017

BENJAMIN A. JOHNSON, Petitioner,
v.
M. BAIRD, Respondent.

          MEMORANDUM AND ORDER

          CLIFFORD J. PROUD UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         Now 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.

         Relevant Facts

         On 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.

         At the 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.

         On 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.

         Analysis

         Respondent 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.

         The 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 remedies.

         The 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. 1983).

         The 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.

         Here, 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 administrative remedies.

         Even if Johnson had properly exhausted administrative remedies, he would not ...


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