Smith v. Oliver

Filing 21

ORDER on Application for Writ of Habeas Corpus. It is ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28U.S.C. § 2241 (Doc. # 1 ) is denied and the action is dismissed with prejudice. In forma pauperis status is denied for the purposeof appeal. By Judge Christine M. Arguello on 07/14/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello

Civil Action No. 13-cv-03122-CMA
MALIK SMITH,
Applicant,
v.
WARDEN OLIVER,
Respondent.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. # 1) and the Memorandum of Law in Support of the
Habeas Corpus Application (Doc. # 4) (“the Application”) filed pro se by Applicant, Malik
Smith. On February 3, 2014, Respondent was ordered to show cause why the
Application should not be granted. Respondent has filed Respondent’s Response to
Order to Show Cause (“the Response”) (Doc. # 19) and Mr. Smith has filed Applicant’s
Reply to Respondent’s Order to Show Cause (“the Reply”) (Doc. # 20). After reviewing
the pertinent portions of the record in this case including the Application, the Response,
and the Reply, the Court concludes that the Application should be denied.
I. BACKGROUND
Mr. Smith is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”).
When he initiated this action, Mr. Smith was incarcerated at the United States
Penitentiary Florence High in Florence, Colorado. On December 23, 2013, Mr. Smith

filed a notice of change of address stating that he had been transferred to the United
States Penitentiary Victorville in Adelanto, California.1
Following a jury trial, Mr. Smith was sentenced on February 12, 1998 by the
Superior Court of the District of Columbia in Case No. F-6230-96 as follows:
(1)

Ten to thirty years imprisonment for assault with intent to commit robbery
while armed for counts H and J;

(2)

Five to fifteen years imprisonment for possession of a firearm during crime
of violence for counts I, K, M, O, Q, and S;

(3)

Fifteen years to life imprisonment for assault with intent to kill while armed
for counts L and N;

(4)

Five to fifteen years imprisonment for aggravated assault while armed for
counts P and R; and

(5)

Twenty to sixty months imprisonment for carrying a pistol without a license
for count T.

(Doc. # 19-1 at 8-11).
The Judgment and Commitment/Probation Order provided that counts H, J, L, N,
P, and R would run concurrent to each other; counts I, M, and Q would run concurrent
to each other but consecutive to counts H, J, L, N, P, and R; counts K, O, and S would
run concurrent to each other but consecutive to counts I, M, and Q; and count T would
run consecutive to counts H through S. (Doc. #19-1 at 11-12).

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Although, Mr. Smith is now housed in California, he was incarcerated at the United
States Penitentiary Florence High in Florence, Colorado at the time he filed his § 2241
application. This Court is, therefore, the appropriate jurisdiction and venue in which to bring
the § 2241 application. See 28 U.S.C. § 2241(a); Howard v. U.S. Bureau of Prisons, 487 F.3d
808, 811 (10th Cir. 2007) (explaining that § 2241 petition is properly filed in the district where
the prisoner is confined at the time of the filing).

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Mr. Smith received 336 days of pre-sentence jail credit from March 13, 1997
to February 11, 1998. (Doc. # 19-1 at 15). The D.C. Department of Corrections
determined that Mr. Smith would be eligible for parole on November 10, 2023. (Id.)
On June 11, 2002, Mr. Smith was transferred into the custody of the BOP for
service of his sentence pursuant to the National Capitalization Revitalization and SelfGovernment Improvement Act of 1997. (Doc. # 4 at 4; Doc. # 19-1 at 20 ).
On June 1, 2004, the Superior Court of the District of Columbia vacated
Mr. Smith’s convictions and sentences as to counts K, Q, and S in Case No. F-6230-96.
(Doc. # 19-1 at 25). This order did not change Mr. Smith’s combined sentence term
based on the Judgment and Commitment/Probation Order, which provided that the
remaining counts H, J, L, N, P, and R would run concurrent to each other; counts
I and M would run concurrent to each other but consecutive to H, J, L, N, P, and R;
count O would run consecutive to I and M; and count T would run consecutive to the
other counts. (Id. at 11-12).
Reviewing the applicable District of Columbia statutes, the BOP determined that
Mr. Smith was serving a minimum term of 25 years and 20 months of imprisonment.
(Doc. # 19-1 at 20). The BOP further determined that Mr. Smith was eligible for release
on parole on November 10, 2023. (Id. at 23).
Mr. Smith contends that the BOP has miscalculated his sentence because he
“is one year past the EFT (effective release date) of his D.C. Omnibus Act Adult
sentence of life that does not exceed 15 years in accordance with D.C. Code. An [sic]
due to the (DCSS) Designation Center miscalculation of petitioner [sic] minimum term to
be served petitioner is currently held illegally.” (Doc. #1 at 2). In other words, Mr. Smith
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argues that he essentially received a maximum sentence of life imprisonment and that
the mandatory minimum term for a life sentence may not exceed fifteen years in
accordance with D.C. Code § 24-203(a). Since Mr. Smith has served more than sixteen
years of his sentence, he contends that he is currently eligible for parole and mandatory
release. (Doc. # 4 at 3). Respondent argues that the BOP correctly determined Mr.
Smith’s total minimum sentence to be 25 years and 20 months based on the aggregate
of the minimum terms for all counts applied consecutively according to the Judgment
and Commitment/Probation Order. (See Doc. # 19 at 3-5). In the Reply, Mr. Smith
asserts that the multiple counts for which he was convicted and sentenced constitute
“one crime, conviction and sentence [not] two different sentences that are separated by
different jurisdiction, so only one statute release date, two thirds date, and EFT date
does apply to Applicant’s sentence.” (Doc. # 20 at 2). He maintains that he was
sentenced to “a full term of 25 years to life and 20 months with a mandatory minimum
term of 15 years.” (Id.).
II. STANDARDS OF REVIEW
The fundamental purpose of an application for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 “is an attack by a person in custody upon the legality of that
custody, and . . . the traditional function of the writ is to secure release from illegal
custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also McIntosh v. United
States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). Habeas corpus relief is
warranted only if Mr. Smith “is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3). A challenge to the BOP’s
calculation of a prison sentence under the District of Columbia Code is properly brought
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under 28 U.S.C. § 2241. See Watson v. Warden, FCC Coleman-USP I, 521 Fed. Appx.
899, 901 (11th Cir. 2013); see also Warren v. Williamson, No. 08-5039, 2008 WL
8853355, at *1 (D.C. Cir. Oct. 10, 2008) (explaining that applicant may pursue claims
challenging BOP’s computation of his sentence by filing § 2241 petition in district having
personal jurisdiction over the warden of the facility in which he was incarcerated).
The Court must construe Mr. Smith’s claims and arguments liberally because
he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curiam ); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
III. DISCUSSION
In the Application, Mr. Smith contends that his correct minimum term is fifteen
years under D.C. Code § 24-403(a). Respondents assert that the BOP properly
determined that Mr. Smith was sentenced to a total minimum term of 25 years and
20 months.
The District of Columbia Code § 24-403 provides:
(a) Except as provided in subsections (b) and (c) of this section, in
imposing sentence on a person convicted in the District of Columbia of
a felony, the justice or judge of the court imposing such sentence shall
sentence the person for a maximum period not exceeding the maximum
fixed by law, and for a minimum period not exceeding one-third of the
maximum sentence imposed, and any person so convicted and sentenced
may be released on parole as herein provided at any time after having
served the minimum sentence. Where the maximum sentence imposed
is life imprisonment, a minimum sentence shall be imposed which shall
not exceed 15 years imprisonment.

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Thus, sentences imposed under the D.C. Code state both the minimum and
maximum period of imprisonment in accord with this rule.
As stated above, the Judgement and Commitment/Probation Order indicates that
Mr. Smith received the following sentences: (1) ten to thirty years for counts H and J;
(2) five to fifteen years for counts I, K, M, O, Q, and S; (3) fifteen years to life for counts
L and N; (4) five to fifteen years for counts P and R; and (5) twenty to sixty months for
count T. (Doc. # 19-1 at 8-11).
Moreover, the Judgement and Commitment/Probation Order provided that counts
H, J, L, N, P, and R (“Sentence 1") would run concurrent to each other; counts I and M
(“Sentence 2") would run concurrent to each other but consecutive to Sentence 1; count
O (“Sentence 3") would run consecutive to Sentence 2; and count T (“Sentence 4")
would run consecutive to Sentences 1, 2, and 3. (Doc. # 19-1 at 11-12). Thus,
Sentence 1 requires a fifteen year minimum that is consecutive to the five year
minimum of Sentence 2, which is consecutive to the five year minimum of Sentence 3,
which is consecutive to the twenty month minimum of Sentence 4. Accordingly, the
aggregate sentence clearly calls for an overall minimum sentence of 25 years and
20 months. There is no way around it; fifteen years (Sentence 1) plus five years
(Sentence 2), plus five years (Sentence 3), plus twenty months (Sentence 4) equals
25 years and 20 months. Courts routinely recognize that consecutive sentences often
result in an aggregate sentence that exceeds the fifteen year minimum sentence for
a maximum sentence of life imprisonment under D.C. Code § 24-403(a). See e.g.,
Autrey v. Thomas, No. 12-cv-1289, 2013 WL 1760519, at *4-5 (M.D. Pa. April 24, 2013)
(rejecting petitioner’s fifteen year minimum term argument where petitioner’s total
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minimum sentence was twenty years when consecutive sentences were added
together); Wellington v. Hogsten, 10-341-GVT, 2012 WL 1805912, at *4 (E.D. Ky. May
12, 2012) (finding that BOP correctly determined that the sum of the minimum terms of
the consecutive sentences totaled 27 years); Montgomery v. Baird, 11CV1354JCH,
2012 WL 6156014, at *1 (D. Conn. Dec. 11, 2012) (noting that three sentences were
to be served consecutively for a total effective sentence of seventeen years to life);
Watson, 521 Fed. Appx. at 900-01 (recognizing that applicant’s aggregate prison term
was a minimum of thirty years to a maximum of life).
Although, Applicant contends that the multiple counts for which he was convicted
and sentenced constitute “one crime, conviction and sentence,” this position is not
supported by the Judgment and Commitment/Probation Order that imposed consecutive
sentences for multiple criminal offenses. Thus, the Court finds that Mr. Smith was
sentenced to a consecutive fifteen years to life term, two (2) five to fifteen years terms,
and a twenty to sixty months term, which aggregated together, results in a minimum
sentence of 25 years and 20 months to a maximum sentence of life imprisonment.
IV. CONCLUSION
In summary, the Court finds that Mr. Smith has failed to demonstrate that the
BOP incorrectly calculated his sentence, parole eligibility, and effective release
date. Therefore, Mr. Smith is not entitled to federal habeas relief from this Court.
Accordingly, it is

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ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (Doc. #1) is DENIED and the action is DISMISSED WITH PREJUDICE.
It is
FURTHER ORDERED that in forma pauperis status is denied for the purpose
of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a
notice of appeal he must also pay the full $505.00 appellate filing fee or file a motion
to proceed in forma pauperis in the Tenth Circuit within thirty days in accordance with
Fed. R. App. P. 24.
DATED: July

.
14

, 2014
BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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