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Ware v. Merlak

United States District Court, N.D. Ohio, Eastern Division

July 30, 2018

JASON ALLEN WARE, Pro Se, Petitioner
v.
STEVEN MERLAK, Warden, Respondent

          ORDER

          SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE

         Currently pending before the court is Pro Se Petitioner Ware's (“Petitioner” or “Ware”), Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Petition”). (ECF No. 1.) Ware is currently a federal prisoner confined at the Federal Correctional Institution, Elkton, located in Lisbon, Ohio. (Id. at 1.) He is serving a term of ninety-six months of federal imprisonment, followed by three years of supervised release, for his conviction by guilty plea in the United States District Court for the Eastern District of Kentucky for conspiracy to distribute pills containing oxycodone, in violation of 21 U.S.C. § 481(a)(1)b and 846. (Id.) For the following reasons, the court grants Ware's Petition as to his request for time served, and denies the Petition as to Ware's request for immediate release.

         I. BACKGROUND

         A. Facts

         On November 14, 2013, Ware was arrested by federal authorities based on his instant federal offense. (Id. at 2.) He was released on bond with pretrial services supervision on November 15, 2013. (Id.) On April 25, 2014, while on bond for the federal offense, Ware was arrested by local police in Franklin County, Kentucky for Trafficking a Controlled Substance, First-Degree Cocaine, and Possession of Drug Paraphernalia. (Id.) While detained in the Franklin County jail, Ware was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum on July 14, 2014. (Id.) On January 20, 2015, Ware was sentenced in federal court to ninety-six months of imprisonment. (Id.) He was returned to state custody on February 6, 2015, for disposition of his state charges. (Id.)

         On February 10, 2015, Ware was sentenced in the Franklin County Circuit Court to twelve months of imprisonment for his state charges, to run concurrently with his undischarged federal sentence. (Id.) He remained in state custody after this sentencing and completed his twelve-month state sentence. (Id. at 2-3.) The state sentence was satisfied on April 23, 2015. (Id. at 3.) Ware was then released to federal authorities on April 29, 2015. (Id.) The Bureau of Prisons (“BOP”) computed Ware's sentence to commence on April 29, 2015, pursuant to 18 U.S.C. § 3585, upon determining the Judgment and Commitment in the federal case did not explicitly state whether the federal judge intended for the federal sentence to run concurrently with the yet-to-be-determined state sentence. (Id.) Therefore, the federal sentence was imposed to run consecutive to the completed state sentence. (Id.)

         B. Procedural History

         On December 28, 2015, Ware filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 in the United States District Court for the Eastern District of Kentucky. (Id. at 1.) The Eastern District of Kentucky denied the motion and declined to issue a Certificate of Appealability. (Id.) It is undisputed that Ware has pursued and exhausted his administrative appeals within the BOP. (Id., Ex. A.) On March 15, 2017, the Central Authority Office of the BOP denied his final appeal, indicating that the BOP computed Ware's sentence correctly and within the intent of the court. (Id.) On August 10, 2017, Ware filed the present Petition in this court. The Government filed its Opposition to the Petition on October 6, 2017. (ECF No. 11.) Ware filed his Traverse in reply to the Opposition on January 26, 2018. (ECF No. 13.)[1]

         II. LEGAL STANDARD

         A. Federal Habeas Corpus: 28 U.S.C. § 2241

         Writs of habeas corpus “may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). Section 2241 “is an affirmative grant of power to federal courts to issue writs of habeas corpus to prisoners being held ‘in violation of the Constitution or laws or treaties of the United States.'” Rice v. White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting § 2241). When a prisoner seeks to challenge the execution or manner in which a sentence is served, he must file his claim in the court having jurisdiction over his custodian under § 2241. Otero v. Elkton, No. 4:05 CV 0754, 2005 WL 1223429, at *2-3 (N.D. Ohio May 23, 2005) (citations omitted). Proper jurisdiction for the filing of a § 2241 petition is in the district in which the prisoner is confined. Acevedo v. Hanson, No. 4:15CV2045, 2017 WL 4404453, at *2 (N.D. Ohio July 14, 2017) (citations omitted). Since Ware is confined in the Northern District of Ohio, this court has proper jurisdiction over Petitioner's custodian, Warden Merlak.

         Because Ware is appearing pro se, pleadings are held to a less stringent standard than those prepared by counsel. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). However, this court may dismiss the Petition at any time, or make any such disposition as law and justice require, if it determines the Petition fails to establish adequate grounds for relief. Hilton v. Braunskill, 481 U.S. 770, 775 (1987); see also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (holding district courts have a duty to “screen out” petitions lacking merit on their face under 28 U.S.C. § 2243).

         After a BOP decision, any further court review of the Bureau's determination will be limited to an abuse of discretion. Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990). The test is not whether a reviewing court would have found differently. The writ may issue only when an error is “fundamental and carries a serious potential for a miscarriage of justice.” Ruff v. Butler, No. 16-5565, 2017 WL 5135545, at *2 (6th Cir. June 16, 2017) (citing Eccleston v. United States, 390 Fed. App'x 62, 65 (3d Cir. 2010); Barden v. Keohane, 921 F.2d 476, 479 (3d Cir. 1990)).

         B. Federal Sentence Credit: 18 ...


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