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Carlton Carl Love, (#31821-160 v. United States of America

October 31, 2011

CARLTON CARL LOVE, (#31821-160) PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge James S. Gwin

MEMORANDUM OF OPINION AND ORDER

Pro se petitioner Carlton Carl Love filed the above-caption Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2241. Petitioner is an inmate confined to the Allenwood Federal Correctional Institute (F.C.I. Allenwood") in White Deer, Pennsylvania. He challenges the Bureau of Prisons' (BOP) refusal to grant federal sentence credit for time he spent serving a sentence in the State of Ohio.

Background

Petitioner was indicted in this Court on January 6, 2004 and charged with illegal re-entry following deportation in violation of 8 U.S.C. §1326(1). See United States v. Love, No. 1:04cr 0005 (N.D. Ohio 2002)(Gwin, J.) Two days later, this Court issued a warrant for his arrest. Id. (Doc. No. 3).

Four years after the indictment was filed, Petitioner was arraigned before this Court on June11, 2008. He entered a not guilty plea and was ordered detained. On March 26, 2009, he changed his plea to guilty and entered into an agreement with the government. On June 2, 2009, this Court sentenced him to 87 months imprisonment, "with credit for time served."

In a letter to this Court, dated August 17, 2010, Petitioner referenced his criminal case number to request credit against his federal sentence. Id. (Doc. No. 31). This Court construed the letter as a Motion for Sentence Credit, which it denied without prejudice on September 29, 2010 for failure to exhaust administrative remedies. Id. (Doc. No. 33).

Petitioner then pursued his administrative remedies through the BOP. Attached to his Petition before this Court is a copy of his final appeal to Harrell Watts, National Inmate Appeals Administrator. (Pet.'s Appx. C). Mr. Watts denied Petitioner's appeal on May 25, 2011 wherein he requested additional custody credit pursuant to 18 U.S.C. § 3585(b). He noted that the State of Ohio sentenced Petitioner to 5 years in prison on November 19, 2003. Id. Petitioner was then paroled from that sentence on June 10, 2008. Id. The federal court exclusively detained Petitioner from June 11, 2008 until his federal sentence was imposed on June 2, 2009. Mr. Watts explained that because Petitioner's state sentence expired before his federal sentence commenced, the BOP could not award credit against his federal sentence pursuant to §3585. Petitioner's scheduled release date from federal prison is October 5, 2014. See http://www.bop.gov/iloc2/..

Analysis

Petitioner maintains he is being held beyond the 87 months prison sentence imposed by this Court. He believes his federal sentence included credit for time he served in State prison. As such, he maintains he has fully served his federal prison term.

Petitioner asserts the BOP does not understand that a district court may provide sentence credit against a prisoner's term for time served since an arrest. Here, he maintains that because he was arrested on June 15, 2003, his federal sentence should be credited from that date forward. Citing an unreported Sixth Circuit case, "United States v. Roark, [403 Fed.Appx. 1, 2010 WL 3724602] 2010 U.S. App. LEXIS 192609 (6th Cir. 2010)," along with a reported Seventh Circuit Court of Appeals decision, "United States v. Staples, 202 F.3d 992, 997 (7th Cir. 2000),"*fn1 Petitioner claims this Court intended to sentence him to 'some time' in prison, but also wanted to account for the fact that he was already incarcerated by the State at the time of his federal offense.

Under this scenario, Petitioner argues this Court credited his federal sentence to account for the prior period of time the he was in State prison.

Petitioner acknowledges that it is within the sole discretion of the BOP to authorize credit against a prisoner's sentence pursuant to 18 U.S.C. § 3585(b). He argues, however, that this Court granted him credit under United States Sentencing Guideline section 5G1.3(c). Petitioner asserts this Court had authority under section 5G1.3(c) to impose a sentence which accounted for time he spent in prison prior to the imposition of his federal sentence. Citing Ruggiano v. Reish, 307 F.3d 121 (3rd Cir. 2002), he notes that courts have been cautioned to explicitly characterize such an adjustment as a "downward departure" rather than a "credit" to avoid confusion with § 3585. As such, he claims all interested parties in his case agreed and understood at sentencing that this Court intended to credit Petitioner's sentence for time he served in jail in Ohio.

28 U.S.C. §2241

Claims asserted by federal prisoners seeking to challenge their convictions or the imposition of their sentences shall be filed in the sentencing court under 28 U.S.C. § 2255. See Cohen v. United States, 593 F.2d 766, 770 (6th Cir.1979). Where a prisoner seeks to challenge the execution or manner in which his sentence is served, it shall be filed in the court having jurisdiction over the prisoner's custodian under 28 U.S.C. ยง 2241. See Capaldi ...


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