United States District Court, S.D. Illinois
THOMAS P. VITRANO, # 06661-089, Petitioner,
T.B. WERLICH, Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge
Thomas Vitrano, who is currently incarcerated in the Federal
Correctional Institution at Greenville, Illinois, brings this
habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the computation of his sentence by the Federal
Bureau of Prisons (“BOP”). (Doc. 1). This matter
is now before the Court for review of the petition pursuant
to Rule 4 of the Rules Governing § 2254 Cases in United
States District Courts, which provides that upon preliminary
consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the
clerk to notify the petitioner.” Rule 1(b) of those
Rules gives this Court the authority to apply the rules to
other habeas corpus cases. Following careful review of the
petition in the present case, this Court concludes that
petitioner is not entitled to relief, and the petition must
2002, in Case No. 02-CR-199 in the Eastern District of
Wisconsin, the government charged the petitioner with
unlawful possession of a firearm, 18 U.S.C. § 922(g)(1),
under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. 924(e). Petitioner was ultimately sentenced to 30
years in prison under the ACCA. United States v.
Vitrano, 495 F.3d 387 (7th Cir. 2007). In March of 2008,
petitioner filed a fraudulent motion under 28 U.S.C. §
2255 attacking this sentence, for which he was charged and
convicted in Case No. 09-CR-140 in the Eastern District of
Wisconsin. In Case No. 09-cr-140, petitioner was sentenced to
120 months in prison, with 72 months running concurrently and
48 months consecutively to the sentence in Case No.
02-cr-199. United States v. Vitrano, Case No.
09-cr-140 (E.D. Wis. Aug. 28, 2013).
2015, petitioner filed a § 2255 petition in response to
the Supreme Court declaring a portion of the ACCA to be
unconstitutionally vague. See Johnson v. United
States, 135 S.Ct. 2551 (2015). On October 28, 2015, his
§ 2255 petition was granted, and his sentence in Case
No. 02-cr-199 was reduced to 120 months. His first sentence
was therefore deemed satisfied as of August 11, 2011,
although he had served time beyond that date. (Doc. 1, pp.
6-7); (Doc. 1-1, pp. 26-28). Because his first sentence had
ended before his second sentence had begun, petitioner's
sentence in Case No. 09-cr-140 was de-aggregated. (Doc. 1-1,
pp. 26-28). In sum, his second sentence was deemed to have
commenced on August 26, 2013, the day petitioner was
sentenced, and he was given credit for the additional time
served between the effective completion date of his first
sentence and the date on which his second sentence had
commenced. Id. Petitioner's new projected
release date is April 27, 2020. (Doc. 1-1, p. 7).
November 25, 2015, petitioner filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2241 in the United States
District Court for the Northern District of West Virginia.
Vitrano v. Saad, Case No. 15-cv-220 (N.D.W.V. Aug.
31, 2016) (Doc. 1). Petitioner claimed in his petition that
he was being unlawfully imprisoned by the BOP because the BOP
miscalculated his sentence in Case No. 09-cr-140 by treating
it as fully consecutive to his sentence in Case No. 02-cr-199
as opposed to partially concurrent to it. The District Court
for the Northern District of West Virginia denied
petitioner's petition with prejudice, holding “that
the BOP correctly applied Vitrano's sentence pursuant to
its Program Statement and the law.” Id. at
(Doc. 35, p. 22). The Court noted that “[b]y
definition, a sentence cannot be served concurrently when
there is no other sentence with which to run it” and
“there is simply no legal support for the argument that
his 72 month concurrent sentence should be credited
retroactively to a previous sentence satisfied prior to the
imposition of his second sentence.” Id. (Doc.
35, p. 14).
has reasserted the same grounds in his petition in the
instant case (Doc. 1) that the Northern District of West
Virginia deemed merit less and dismissed with prejudice in
petitioner's earlier motion under 28 U.S.C. § 2241.
Thus, petitioner's claims are clearly barred by 28 U.S.C.
§ 2244(a), which provides in pertinent part that no
shall be required to entertain an application for a writ of
habeas corpus to inquire into the detention of a person
pursuant to the judgment of a court of the United States if
it appears that the legality of such detention has been
determined by a judge or court of the United States on a
prior application for a writ of habeas corpus....
The Seventh Circuit Court of Appeals has construed this
provision to bar successive § 2241 petitions that are
directed at the same issue raised in a prior petition.
See Valona v. United States, 138 F.3d 693, 694 (7th
Cir. 1998); West v. Zuercher, Case No. 07-1127, 2007
WL 2680566, at *2 (CD. Ill. July 18, 2007). The improper
successive petition must be dismissed for lack of
jurisdiction. See, e.g., Schaefer v. Bezy, Case No.
06-1101, 2006 WL 2829002, at *2 (7th Cir. Sept. 29, 2006).
the petition is summarily DISMISSED for lack of jurisdiction.
Petitioner's emergency motion for an expedited fast track
court order compelling warden Werlich to release Vitrano
(Doc. 2), urgent motion requesting ...