West v. Outlaw

Filing 24

RECOMMENDED DISPOSITION recommending the District Court dismiss 1 Petitioner's Petition for Writ of Habeas Corpus, without prejudice, for lack of subject matter jurisdiction. Objections to R&R due no later than 14 days from the date the Recommended Dispostition is received. Signed by Magistrate Judge Beth Deere on 12/22/09. (hph)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION A N T H O N Y RAY WEST R e g # 01472-031 v. C A S E NO.: 2:08CV00210 JLH/BD PETITIONER

T .C . OUTLAW, Warden, Federal Correctional Complex, F o r r e st City, Arkansas

R ESPON D EN T

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h e following recommended disposition has been sent to Chief United States D is tric t Judge J. Leon Holmes. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n fourteen (14) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact.

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Mail your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B ackground O n April 7, 1988, a Judge for the United States District Court for the Western D is tric t of Missouri sentenced Petitioner Anthony Ray West to a fifteen-year term of im p ris o n m e n t and three years of supervised release under 18 U.S.C. § 4205 ("the 1988 s e n te n c e " ) for knowingly and intentionally distributing cocaine, an offense committed b e f o re the effective date of the Sentencing Reform Act ("SRA"). Petitioner was paroled f ro m the 1988 sentence on March 10, 1985. (#1 at p. 7) O n January 11, 2000, federal authorities arrested Petitioner. On May 9, 2001, the U n ite d States District Court for the Western District of Missouri sentenced Petitioner to a 1 2 0 -m o n th term of imprisonment for conspiracy to distribute five kilograms or more of c o c a in e . At sentencing, the District Court recommended that the United States Parole C o m m is s io n ("USPC") run Petitioner's parole violation concurrent with the new sentence it was imposing. (#10-6 at p. 3) The new term of imprisonment was later reduced to 90 m o n th s ("the 90-month sentence"). (#10-7 at p. 3) While Petitioner was serving his 90-month sentence, the USPC issued a warrant b a s e d on a parole violation of the 1988 sentence. (#10-8 at p. 2) The USPC requested

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the warrant be held as a detainer and not be executed until Petitioner was released from h is 90-month sentence. On May 15, 2006, Petitioner filed a petition for habeas corpus in the United States D is tric t Court for the Eastern District of Arkansas under 28 U.S.C. § 2241, claiming the d e ta in e r lodged against him by USPC precluded him from being considered for transfer to le s s secure surroundings and rendered him ineligible for community based programs, in c lu d in g half-way house placement. West v. Outlaw, Case No. 2:07cv00070, 2007 WL 2 9 0 3 0 2 1 at *3 (E.D. Ark. 2007). In proposed findings and recommendations entered on O c to b e r 2, 2006, United States Magistrate Judge John F. Forster, Jr. found that P e titio n e r's arguments were without merit and recommended that Petitioner's § 2241 p e titio n be dismissed with prejudice. West v. Sanders, 2:06CV00129 JMM-JFF (E .D .A rk . Oct. 2, 2006). On October 20, 2006, United States District Judge James M. M o o d y entered an order adopting the Magistrate Judge's findings and recommendations a n d dismissed Petitioner's § 2241 petition with prejudice. W h e n Petitioner was released from his 90-month sentence on July 25, 2006, the w a rra n t for the parole violation was executed. (#10-9) The USPC issued a Notice of A c tio n ("Notice") on November 29, 2006. (#10-10) The Notice revoked Petitioner's p a ro le and did not credit Petitioner with any of the time spent on parole. Additionally, in th e Notice, the USPC denied parole and ordered Petitioner to serve the original sentence

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until expiration. The Notice did not order Petitioner's violator term to run concurrent w ith the 90-month sentence satisfied on July 25, 2006. O n May 25, 2007, Petitioner brought a second petition for habeas relief under 28 U .S .C . § 2241 challenging, among other things, the USPC's delay in executing the parole v io la to r warrant and holding a parole revocation hearing. West v. Outlaw, Case No. 2 :0 7 c v 0 0 0 7 0 , 2007 WL 2903021 at *1 (E.D. Ark. 2007). United States District Judge J a m e s M. Moody again dismissed the petition with prejudice adopting the proposed f in d in g s and recommendations of Magistrate Judge John F. Forster, Jr. Petitioner brings this petition under 28 U.S.C. § 2241 claiming Respondent's c a lc u la tio n of his sentence is an unlawful restraint of his liberty.1 (docket entry #1 at p. 8) In his initial response (#10), Respondent argued that the petition should be dismissed for f a ilu re to exhaust administrative remedies. Respondent claimed that Petitioner had not c o m p le te ly exhausted his administrative remedies because he had not filed a form "BP1 1 " appeal of the Regional Director's decision with the Office of General Counsel. (#10 a t p. 3) Petitioner replied to the response attaching a copy of a "Central Office

O n October 9, 2009, Petitioner filed a Notice of Change of Address, reflecting th a t he is now incarcerated at Federal Prison Camp Englewood in Littleton, Colorado. (# 2 0 ) There is no question that, at the time the Petition was filed, Petitioner was in c a rc e ra te d at FCI Forrest City. Thus, at the time the current Petition was filed, the Court c o u ld properly exercise jurisdiction over the § 2241 action. See Rumsfeld v. Padilla, 542 U .S . 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (the proper respondent in a habeas a c tio n is the petitioner's "immediate custodian" at the time of filing). A petitioner's p o s t-f ilin g transfer does not, in and of itself, defeat jurisdiction. See Copley v. Keohane, 1 5 0 F.3d 827, 830 (8th Cir. 1998). 4

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Administrative Remedy Appeal" form completed by Petitioner and dated October 2, 2 0 0 8 . (#11 at p. 7) Petitioner also attached an affidavit in which he states the Central O f f ic e has not responded to his appeal. (#11 at p. 5) Petitioner has provided sufficient evidence of his attempt to fully exhaust his a d m in is tra tiv e remedies. Accordingly, the Court will not dismiss the petition for failure to e x h a u s t administrative remedies. For the reasons set forth below, however, the Court re c o m m e n d s that the District Court dismiss Petitioner's petition without prejudice. III. S u b je c t Matter Jurisdiction: In m a te s contesting the lawfulness of their federal convictions and the sentences im p o s e d generally must bring a motion in the sentencing court to vacate, set aside or c o rre c t their sentence, under 28 U.S.C. § 2255. Abdullah v. Hedrick, 392 F.3d 957, 959 (8 th Cir. 2004), cert. denied, 545 U.S. 1147, 125 S.Ct. 2984 (2005). A habeas corpus p e titio n under 28 U.S.C. § 2241, on the other hand, is appropriate if the inmate is a tta c k in g the execution of a sentence, or the manner in which the sentence is being carried o u t, and it is within the subject matter jurisdiction of the court presiding in the judicial d is tric t where the prisoner is incarcerated. Matheny v. Morrison, 307 F.3d 709, 711-12 (8 th Cir. 2002). In this case, Petitioner's claim challenges the Respondent's calculation of his s e n te n c e , and he asks the Court to "order the Bureau of Prisons to recalculate his s e n te n c e " to run his 90-month sentence concurrent with his 1988 sentence. His petition,

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however, does not challenge the way the BOP has calculated his sentence, but rather the v a lid ity of his sentence. Petitioner claims the District Court violated Section 5G1.3(b) of th e United States Sentencing Guidelines when it failed to order his 90-month sentence to ru n concurrent with the 1988 sentence in violation of "statutory provisions of [18 U .S .C .A . §] 3553(a)." (#1 at pp. 6, 8) The Eighth Circuit Court of Appeals, in fact, addressed this issue in its order d e n yin g Petitioner's appeal of his conviction. See United States v. West, 32 Fed. Appx. 1 9 7 , 2002 WL 535080 (8th Cir. 2002). The Court stated that, "the district court did not h a v e the authority to run [Petitoner's] sentence concurrent with any revocation sentence th e Parole Commission may impose on a prior federal conviction for which he had been p a ro le d at the time he committed the instant offense. See U.S.S.G. § 5G1.3, comment (n .6 ); United states v. Murphy, 69 F.3d 237, 245 (8th Cir. 1995), cert. denied, 516 U.S. 1 1 5 3 , 116 S.Ct. 1032." Id. at 198. T h is Court cannot entertain Petitioner's § 2241 habeas petition unless the § 2255 re m e d y is "inadequate or ineffective" under the statute's savings clause. Title 28 U.S.C. § 2255(e) provides: An application for a writ of habeas corpus in behalf of a prisoner who is a u th o riz e d to apply for relief by motion pursuant to this section, shall not be e n te rta in e d if it appears that the applicant has failed to apply for relief, by [§ 2255] motion, to the court which sentenced him, or that such court has denied h im relief, unless it also appears that the remedy by [§ 2255] motion is inadequate o r ineffective to test the legality of his detention. 2 8 U.S.C. § 2255(e). 6

To take advantage of the savings clause, a petitioner has the burden of d e m o n s tra tin g the inadequacy or ineffectiveness of seeking relief from the sentencing c o u rt under 28 U.S.C. § 2255. Abdullah, 392 F.3d at 959. This is a "narrowly circumscribed `safety valve.'" United States ex rel. Perez v. Warden, FMC Rochester, 2 8 6 F.3d 1059, 1061-62 (8th Cir. 2002), cert. denied, 537 U.S. 869, 123 S.Ct. 275 (2002). T h e mere fact that an individual may be barred from filing a § 2255 motion for p ro c e d u ra l reasons does not render the remedy inadequate or ineffective so as to permit u tiliz a tio n of § 2241. Abdullah, 392 F.3d at 959. Specifically, the § 2255 remedy is not in a d e q u a te or ineffective merely because the claim was previously raised in a § 2255 m o tio n and denied, because petitioner has been denied permission to file a second or s u c c e s s iv e § 2255 motion, or because a § 2255 petition is time-barred. Id. Thus, a h a b e a s petitioner cannot file a § 2241 petition in the district of incarceration merely b e c a u s e he no longer has avenues for relief in the sentencing district. In this case, Petitioner has failed to meet his burden of demonstrating the in a d e q u a c y or ineffectiveness of seeking relief from the sentencing court. As set forth a b o v e , Petitioner had the opportunity to raise the same claim raised in this petition with th e sentencing court and the issue was addressed by the Eighth Circuit Court of Appeals. To the extent Petitioner is raising a slightly different claim, i.e., that the " S e n te n c in g Commission did not adequately address this particular issue when it drafted § 5G1.3," Petitioner could have raised this claim in a motion under 28 U.S.C. § 2255.

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See Abdullah, 392 F.3d at 960 (holding § 2255 relief was adequate when petitioner had a n unobstructed procedural opportunity to raise his claim). Accordingly, the Court does n o t have jurisdiction to entertain his petition under 28 U.S.C. § 2241. F u rth e r, this Court does not have jurisdiction to review the substantive decisions of th e Parole Commission to grant or deny parole.2 Hutchings v. U.S. Parole Commission, 2 0 1 F.3d 1006, 1008 (8th Cir. 2000) (citing Jones v. U.S. Bureau of Prisons, 903 F.2d 1 1 7 8 , 1185 (8th Cir. 1990). IV. C o n c lu s io n F o r the reasons set forth above, the Court recommends that the District Court d is m is s Petitioner's petition for writ of habeas corpus (#1), without prejudice, for lack of s u b je c t matter jurisdiction. IT IS SO ORDERED this 22nd day of December, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

This Court would have jurisdiction to review the USPC's decision-making p ro c e s s to determine whether the Commission exceeded the scope of its authority granted b y Congress. Jones, 903 F.2d at 1185. Petitioner does not, however, raise such a claim in th is petition. 8

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