Perry v. Walton et al

Filing 21

ORDER DISMISSING CASE, denying 1 Petition for Writ of Habeas Corpus filed by Elmer J Perry, denying 15 MOTION to Dismiss for Lack of Jurisdiction filed by USA. The Clerk of Court shall enter judgment in favor of respondent. Signed by Judge David R. Herndon on 9/29/16. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ELMER J. PERRY,
Petitioner,
vs.

Civil No. 14-cv-1046-DRH-CJP

MAUREEN BAIRD,
Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
Elmer J. Perry filed a petition for writ of habeas corpus under 28 U.S.C.
§2241 arguing that he is entitled to pre-sentence credit. (Doc. 1).
This matter is now before the Court both on respondent’s Motion to
Dismiss (Doc. 15) and on the merits of the petition itself.
Relevant Facts and Procedural History
In November 2012, petitioner was sentenced in the Eastern District of
Missouri to 48 months imprisonment for Use of a Communication Facility to
Facilitate a Drug Trafficking Crime in violation of 21 U.S.C. §§ 843(B) and (D)(1),
to be followed by one year of supervised release.

Doc. 12, Ex. 2, pp. 6-11. 1

Petitioner argues that he is entitled to credit on that sentence for the time he spent
in federal custody from January 7, 2012, through December 3, 2012. 2

For clarity, the Court will refer to the Document, Exhibit and Page numbers assigned by the
CM/ECF electronic filing system.

1

Respondent points out that petitioner’s dates are a little off as he came into temporary federal
custody on January 20, 2012, and he was sentenced in the Eastern District of Missouri on
2

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Perry had several Missouri state convictions before he was indicted
federally. As is relevant here, in January 2007, Perry was sentenced in the Circuit
Court for St. Louis County, Missouri, in Case Nos. 2106R-00782B-01 (Burglary
2d Degree and Stealing Over $500) and 2106R-02484-01 (Stealing a Credit Card),
to concurrent sentences of five years’ probation. Doc. 12, Ex. 2, pp. 19-20. On
June 9, 2011, Perry’s probation was revoked in both cases and he was sentenced
to five years imprisonment with an anticipated conditional release date of March
6, 2015. Ibid.
On November 9, 2011, petitioner was sentenced in the Circuit Court for the
City of St. Louis, Missouri, in Case Number 1122-CR00828-01 (Possession of a
Controlled Substance and Possession of Drug Paraphernalia) to a six year term of
imprisonment to run concurrently with the sentences imposed in Case Numbers
2106R-00782B-01 and 2106R-02484-01. Doc. 12, Ex. 2, p. 21.
On January 20, 2012, petitioner was transferred to temporary federal
physical custody pursuant to a federal writ ad prosequendum on the Eastern
District of Missouri charge of Use of a Communication Facility to Facilitate a Drug
Trafficking Crime. 3 He remained in temporary federal physical custody until he

November 28, 2012. Doc. 12, p. 1, n.1. The discrepancy in the dates makes no difference in the
analysis of the merits of the petition.
A writ ad prosequendum “permits one sovereign - called the ‘receiving sovereign ’- to ‘borrow’
temporarily a person in the custody of another sovereign - called the ‘sending sovereign’ - for the
purpose of prosecuting him. It thus permits the receiving sovereign to perform such acts as
indicting, arraigning, trying, and sentencing the person. See Flick v. Blevins, 887 F.2d 778, 781
(7th Cir.1989) (per curiam). Because the receiving sovereign merely obtains limited jurisdiction
over the ‘borrowed’ prisoner, the prisoner is still under the jurisdiction of the sending sovereign,
and is considered to be in the custody of the sending sovereign not the receiving sovereign. See id.
Jake v. Herschberger, 173 F.3d 1059, 1061, n.1 (7th Cir. 1999)
3

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was sentenced on November 28, 2012.

Doc. 12, Ex. 2, p. 34.

His federal

sentence was to run concurrently with the Missouri state prison terms that he was
then serving. Ex. 2, p. 7.
Following the imposition of his federal sentence, Perry was returned to the
physical custody of the State of Missouri on November 30, 2012. Doc. 12, Ex. 2,
p. 34.
The Bureau of Prisons (“BOP”) prepared a sentence calculation following
petitioner’s commitment to the BOP on February 4, 2013. His sentence began to
run on the date it was imposed, November 28, 2012. He was given no prior credit
for time served. His statutory release date via good conduct credit was calculated
to be May 23, 2016.

Doc. 12, Ex. 2, pp. 42-43.

Se also, Affidavit of BOP

Correctional Program Specialist Forest B. Kelly, Ex. 2, pp. 1-4.
Perry was released from the BOP on June 20, 2016, and began serving his
one year term of supervised release. Doc. 15, Ex. 1.
Motion to Dismiss, Doc. 15
Respondent argues that the petition is moot because petitioner is no longer
in the custody of the BOP. Petitioner has not filed a response to the motion.
Under 28 U.S.C. § 2241(c), a writ of habeas corpus “shall not extend to a
prisoner” unless he is “in custody.” The “in custody” requirement is satisfied if
the petitioner was in custody at the time of the filing of the petition. Perry was in
the custody of the BOP when he filed his petition.
While release from physical custody does not necessarily render the petition

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moot, the petition must still present a “case or controversy” under Article III, §2 of
the Constitution. That is, the petitioner “must have suffered, or be threatened
with, an actual injury traceable to the [respondent] and likely to be redressed by a
favorable judicial decision.” Spencer v. Kemna, 118 S. Ct. 978, 983 (1998).
The fact that petitioner has been released from prison, standing alone, does
not mean that the petition is moot. Respondent’s argument ignores the fact that,
upon his release from the BOP, petitioner began serving a one year term of
supervised release. If the claim advanced in the habeas petition is correct, Perry
should have been released from the BOP earlier and would have begun serving his
term of supervised release earlier. Therefore, if he were entitled to habeas relief,
he would be entitled to relief in the form of an earlier termination of his
supervised release.

See, White v. Indiana Parole Board, 266 F.3d 759, 763 (7th

Cir. 2001).
Accordingly, the petition presents a “case or controversy” regardless of
Perry’s release. The Motion to Dismiss (Doc. 15) is DENIED.
Merits of Habeas Petition
1.

Applicable Law
The Attorney General, acting through the Bureau of Prisons, calculates a

defendant’s sentence “as an administrative matter when imprisoning the
defendant.”

United States v. Wilson, 112 S.Ct. 1351, 1355 (1992).

The

calculation, i.e., the execution, of the sentence can be challenged in a Section 2241
petition. See, Romandine v. U.S., 206 F.3d 731, 736 (7th Cir. 2000); Waletzki v.

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Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994)(Where petitioner is “attacking the
fact or length of his confinement in a federal prison on the basis of something that
happened after he was convicted and sentenced, habeas corpus is the right
remedy.”)
18 U.S.C. §3585(b) governs credit for pretrial detention against federal
sentences:
A defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to the
date the sentence commences—
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested
after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
(emphasis added).
2.

Analysis
The Seventh Circuit has repeatedly held that §3585(b) means what it says:

the time that a defendant spends in pre-sentence custody cannot be credited to
his newly-imposed federal sentence if that time has been credited to another
sentence. See, United States v. Walker, 98 F.3d 944, 945 (7th Cir. 1996)(“The
statute [§3585(b)] is explicit that you can get credit against only one sentence, and
the defendant was already getting credit against the sentence for his parole
violation.”); United States v. Ross, 219 F.3d 592, 594 (7th Cir. 2000) (“§ 3585(b)
forbids the BOP from giving credit for presentence custody when that credit has
been applied against another sentence.”); Grigsby v. Bledsoe, 223 F. App'x. 486,
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488-489 (7th Cir. 2007), and cases cited therein; Short v. Revell, 152 F. App'x
542, 544 (7th Cir. 2005); Easley v. Stepp, 5 F. App'x 541, 542 (7th Cir. 2001).
§3585(b) applies to presentence time that is credited to a state sentence as
well as time that is credited to another federal sentence. Manuel v. Terris, 803
F.3d 826, 828 (7th Cir. 2015). Because the period of time that Perry seeks credit
for was credited to his Missouri state sentences, he cannot receive credit for it
against his federal sentence.
Perry does not dispute that §3538(b) operates as explained above. Rather,
he appears to dispute whether the time period in issue was actually credited to
his state sentence. He claims that he was removed from the custody of the state
in January 2012 “just a day or so from his final Parole and Release” and that he
was “immediately paroled and released [by the state] back to the Federal
Government” on December 3, 2012.

See, Reply, Doc. 14, p. 1.

Petitioner’s

statements confirm rather than undermine the BOP’s sentence calculation. Even
by his own account, his state sentence continued to run while he was in
temporary federal physical custody under the writ ad prosequendum, and he was
not paroled by the state until after his federal sentence had been imposed.
Perry also claims that the District Judge who sentenced him in the Eastern
District of Missouri recommended that he receive all “jail credit” due him.
However, §3538(b) does not authorize the sentencing judge to award credit for
presentence time – the authority to do so rests solely with the Attorney General,
acting through her designee, the BOP. United States v. Wilson, 112 S.Ct. 1351,

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1354 (1992).
In short, all of the time for which petitioner seeks credit was, in fact,
credited to his Missouri sentences. Therefore, the time cannot be credited toward
his federal sentence as well.
Conclusion
Respondent’s Motion to Dismiss (Doc. 15) is DENIED.
The Court finds that petitioner is not entitled to habeas relief, and,
therefore, his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241
(Doc. 1) is DENIED.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
Signed this 29th day of September, 2016.

Digitally signed by
Judge David R. Herndon
Date: 2016.09.29
15:05:29 -05'00'
United States District Judge

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Notice
If petitioner wishes to appeal the denial of his petition, he may file a notice
of appeal with this court within sixty days of the entry of judgment. Fed. R. App.
P. 4(a)(1)(B). A motion for leave to appeal in forma pauperis should set forth the
issues petitioner plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the 60-day appeal deadline. Other
motions, including a Rule 60 motion for relief from a final judgment, order, or
proceeding, do not toll the deadline for an appeal.
It is not necessary for petitioner to obtain a certificate of appealability from
this disposition of his §2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th
Cir. 2000).

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