United States District Court, N.D. Ohio, Eastern Division
Y. PEARSON JUDGE.
REPORT & RECOMMENDATION
M. Parker, United States Magistrate Judge.
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.
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
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. 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.
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.
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.
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.
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.
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.
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.
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