Scott v. Merlak

          BENITA Y. PEARSON JUDGE.

          REPORT & RECOMMENDATION

          Thomas M. Parker, United States Magistrate Judge.

         Lamont Scott, a federal prisoner, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. In his petition, Scott argues that the Federal Bureau of Prisons (the “BOP”) should have credited against his federal sentence the 300 days he spent in state custody before his federal and state sentences were imposed (“Ground One”). ECF Doc. 1 at 7-9. Scott also contends that the district court improperly ordered that his federal sentence be served consecutive to his then not-yet-imposed state sentence, because the district court's order: (1) was an “anticipatory judgment” frustrating the state court's sentencing options, in violation of the principles of federalism (“Ground Two”); (2) stayed or enjoined state court proceedings, in violation of 28 U.S.C. § 2283 (“Ground Three”); and (3) was substantively and procedurally unreasonable (“Ground Four”). Id. at 9-23. Respondent, Warden Steven Merlak, filed a return of writ, arguing that Scott's petition should be denied because his federal sentence was properly computed. ECF Doc. 13.^[1] Because the BOP properly computed Scott's sentence, I recommend that Scott's Ground One claim be DENIED. Because Scott has not shown that a 28 U.S.C. § 2255 motion would have been inadequate or ineffective to address his challenges to the district court's sentencing order, I recommend that Scott's Grounds Two through Four claims be DISMISSED.

         I. Background

         On December 14, 2011, the Montgomery County Court of Common Pleas (“MCCCP”) sentenced Scott to five years' probation after he was convicted of having weapons while under disability, in violation of Ohio Rev. Code § 2923.13(A)(2). ECF Doc. 13-2 at 3; see also Docket for Montgomery Cty. Ct. Com. Pl. No. 2011-cr-3160.^[2] On December 11, 2012, an Ohio probation violation petition alleged that Scott violated his probation, when he was arrested for possession of drugs on June 21, 2012, and driving under the influence of alcohol on December 6, 2012. ECF Doc. 13-2 at 4; see also Docket for Montgomery Cty. Ct. Com. Pl. No. 2011-cr-3160.

         On February 21, 2013, an Ohio grand jury indicted Scott on one count of possession of heroin, in violation of Ohio Rev. Code § 2925.11(A), and one count of having weapons while under disability, in violation of Ohio Rev. Code § 2923.13(A)(2). Docket for Montgomery Cty. Ct. Com. Pl. No. 2012-CR-03450, Indictment. The Montgomery County Court of Common Pleas issued a warrant for Scott's arrest. Id., Warrant on Indictment. On May 15, 2013, Ohio police executed the warrant at Scott's home in Trotwood, Ohio. ECF Doc. 1-2 at 5; ECF Doc. 13-2 at 5. At Scott's residence, police found drugs that Scott intended to distribute, $61, 000 cash, and firearms connected to Scotts' drug activity. ECF Doc. 1-2 at 5; ECF Doc. 13-2 at 5; see also CM/ECF for S.D. Ohio No. 3:13-cr-151, Doc. 6 (Information). On October 10, 2013, the United States filed a two-count information, charging Scott with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (“Count 1”), and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (“Count 2”). ECF Doc. 1 at 3; see also CM/ECF for S.D. Ohio No. 3:13-cr-151, Doc. 6 (Information). Scott remained in Ohio custody. ECF Doc. 1 at 3.

         On November 6, 2013, Scott pleaded guilty in the Ohio trial court to the possession of heroin count. ECF Doc. 13-2 at 3, 6; see also Docket for Montgomery Cty. Ct. Com. Pl. No. 2012-CR-03450, Entry of Waiver and Plea. The weapon under disability count was dismissed pursuant to Scott's plea agreement. Docket for Montgomery Cty. Ct. Com. Pl. No. 2012-CR-03450, Entry of Waiver and Plea.

         On November 7, 2013, November 15-19, 2013, December 9, 2013, and March 11-12, 2014, the U.S. Marshal's Service received Scott from the Montgomery County Jail, pursuant to writs of habeas corpus ad prosequendum ordering the U.S. Marshal's Service and the warden of the Montgomery County Jail to have Scott appear for hearings before the Southern District of Ohio. ECF Doc. 13-2 at 14-23. On November 19, 2013, Scott pleaded guilty in the Southern District of Ohio to both the possession with intent to distribute cocaine and felon in possession counts. Id.at 2; CM/ECF for S.D. Ohio No. 3:13-cr-151, Docs. 16 and 19. On March 12, 2014, the Southern District of Ohio sentenced Scott to:

96 months in Count 1; and 96 months in Count 2. Said sentences shall be served concurrently to each other for an aggregate sentence of 96 months, but consecutively to the undischarged and not yet sentenced matter pending in the Montgomery County Common Pleas Court. See Setser v. United States, 132 S.Ct. 1463 (2012).

ECF Doc. 1-1 at 2. Thereafter, Scott was returned to the Montgomery County authorities. ECF Doc. 13-2 at 23; see also ECF Doc. 1 at 3. Scott did not appeal his sentence or file a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

         On March 12, 2014, the MCCCP sentenced Scott to a two-year prison term for the remaining heroin possession count in Ohio v. Scott, Montgomery Cty. Ct. Com. Pl. No. 2012-cr-3450. ECF Doc. 13-2 at 31, 36. The MCCCP ordered that Scott's state sentence be served concurrently with the federal sentence imposed in United States v. Scott, S.D. Ohio No. 3:13-cr-151. Id. at 31. The MCCCP also ordered that Scott “be immediately transported and delivered to the Ohio Department of Rehabilitation and Correction to begin serving the above sentence(s) imposed by the Court.” Id.On March 13, 2014, the Ohio Department of Rehabilitation and Correction received Scott for service of his two-year sentence. Id. at 33. The Ohio Department of Rehabilitation and Correction credited against Scott's state sentence the 300 days he was in state custody between May 16, 2013, and March 11, 2014. Id. at 32-33, 36. Scott's state prison term was set to expire on May 16, 2015. Id. at 33. On March 19, 2014, the Ohio Department of Rehabilitation and Correction sent the U.S. Marshal's Service a letter, acknowledging that it had received a federal detainer. Id. at 7, 34.

         On November 5, 2014, Scott filed a “motion to execute the federal sentence and transfer incarcerated defendant to federal custody.” Id. at 35; CM/ECF for S.D. Ohio No. 3:13-cr-151, Doc. 38. The Southern District of Ohio overruled Scott's motion on November 17, 2015, because the court had ordered his federal sentence to be served consecutively to his state sentence. CM/ECF for S.D. Ohio No. 3:13-cr-151, entry dated Nov. 17, 2015.

         On May 14, 2015, the Ohio Department of Rehabilitation and Correction released Scott to federal authorities pursuant to the federal sentencing detainer. ECF Doc. 13-2 at 7, 17, 37.

         On July 15, 2015, Scott filed an unopposed 18 U.S.C. § 3582(c)(2) motion to reduce his sentence, based on Amendment 782's two-level reduction in the offense level points assessed for drug offenses under U.S.S.G. § 2D1.1. Id. at 38-42. On May 16, 2015, the Southern District of Ohio granted Scott's § 3582(c)(2) motion, and reduced his aggregate prison term from 96 months to 78 ...