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James T. Kimball v. Robert R. Farley

November 4, 2011

JAMES T. KIMBALL,
PETITIONER,
v.
ROBERT R. FARLEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge James G. Carr

MEMORANDUM OF OPINION AND ORDER

Pro se petitioner James T. Kimball filed the above-captioned Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Mr. Kimball, who is incarcerated at the Federal Correctional Institution in Elkton, Ohio ("F.C.I. Elkton"), names F.C.I. Elkton Warden Robert Farley as Respondent. He claims the Bureau of Prisons (BOP) has impermissibly added 4 years to his prison term. He has filed a Motion for Appointment of Counsel (Doc. No. 3), Motion to Correct Court Error (Doc. No. 4) and Third Request/ Motion for this Court to expedite Petitioner's Writ for Release (Doc. No. 5). For the reasons set forth below, the Petition is dismissed.

Background

On May 24, 2000, a jury in the United States District Court for the Middle District of Florida convicted Mr. Kimball of, inter alia, adulteration or misbranding of any food or drug in violation of 21 U.S.C. §331.*fn1 See United States v. Kimball, No. 8:99-cr-00256 (M.D. Fla. July15,1999). He was sentenced to a total of 156 months' imprisonment on October 19, 2000.

While incarcerated at the Federal Prison Camp in Jesup, Georgia, Mr. Kimball left the prison on December 5, 2005 to assist his ailing wife. At that time, FPC Jesup placed him on "escape status."*fn2

In April 2009, Mr. Kimball was arrested by federal authorities in Georgia. An indictment was subsequently filed against him in the United States District Court for the Southern District of Georgia on May 7, 2009. See United States v. Kimball, No. 2:09-cr-00016 (S.D. Ga. 2009). The indictment charged Mr. Kimball with escape from federal prison in violation of 18 U.S.C. § 751(a). The United States later moved the court to dismiss the indictment against Mr. Kimball without prejudice and "in the interest of justice." The motion was granted and the court dismissed the indictment on May 10, 2010.

The BOP also charged Mr. Kimball with escape. A Disciplinary Hearing Officer (DHO) subsequently dismissed the charge after the District Court of Georgia dismissed Case No. 2:09-cr-00016. He alleges the DHO ordered any reference to the escape charge expunged from his records.

Mr. Kimball now argues "certain employees within the BOP" are attempting to void the DHO's decision to expunge his record. Moreover, he claims the BOP is effectively charging him with escape by "adding 4 more years" to his sentence.

Attached to the Petition are copies of Mr. Kimball's requests for administrative remedies. His final appeal to the National Inmate Appeals Administrator was denied on March 4, 2011. He has fully exhausted his request for relief.

Analysis

Mr. Kimball argues the BOP is exceeding the scope of its authority. He claims the dismissal of the escape charge by the government and the DHO entitle him to 1218 days credit against his sentence for the period of time he left prison to care for his wife. He provides Black's Dictionary definition of the word "escape" to suggest that his absence from prison was authorized. Mr. Kimball believes the BOP is trying to penalize him for his absence from prison for almost 4 years, even though he was not convicted of escape. He seeks the "reinstatement" of 1218 days to his federal sentence, immediate placement in a half-way house or home confinement under the Second Chance Act or a speedy jury trial.

Federal Habeas Petitions

28 U.S.C. § 2241

A habeas corpus proceeding is the proper mechanism for a prisoner to challenge the "legality or duration" of confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The statute requires that a district court shall direct a writ of habeas corpus "to the person having custody of the person detained." 28 U.S.C. § 2243; see Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 484, 494-95 (1973) ("The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody."). Therefore, a court has jurisdiction over a habeas corpus petition only if it has personal jurisdiction over the petitioner's custodian. Braden, 410 U.S. at 495. Because this Court has personal jurisdiction over the warden at F.C.I. Elkton, the ...


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