Viehe v. Illinois
Filing
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MEMORANDUM AND OPINION denying 1 Petition for Writ of Habeas Corpus. The clerk of court is directed to enter judgment in favor of respondent. Signed by Magistrate Judge Clifford J. Proud on 1/29/2018. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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PIERCE WILEY VIEHE,
Petitioner,
vs.
WARDEN, USP-MARION,
Respondent.
Civil No. 15-cv-1027-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
Pierce Wiley Viehe filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2241 arguing that he is entitled to receive credit on his federal sentence for time
that was credited to two state prison sentences. (Doc. 1).
Relevant Facts and Procedural History
This summary of the facts is derived from the affidavit of J. R. Johnson, a
Correctional Programs Specialist with the Bureau of Prisons. The affidavit is filed
at Doc. 10, Ex. 1. 2 Documents reflecting the facts are attached to the affidavit.
In October 2008, petitioner was sentenced in the District Court of Tulsa
County, Oklahoma, to 3 years imprisonment, suspended, for Failure to Register
as a Sex Offender. (“First state case”). His suspended sentence was revoked and
he was sentenced to 3 years imprisonment in September 2010.
In December 2010, petitioner was indicted in the Western District of
The parties consented to final disposition of this case by a Magistrate Judge pursuant to 28
U.S.C. § 636(c). See, Doc. 14.
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For clarity, the Court will refer to the Document, Exhibit and Page numbers assigned by the
CM/ECF electronic filing system.
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Michigan for Failure to Register as a Sex Offender in violation of federal law.
He
was transferred to temporary federal physical custody pursuant to a federal writ
of habeas corpus ad prosequendum on that charge in April 2011. 3 In September
2011, he was sentenced by the Western District of Michigan to 33 months
imprisonment, followed by 15 years supervised release. The written judgment
did not say whether the federal sentence was to run concurrently or consecutively
to his state sentence. Petitioner was then returned to the Oklahoma Department
of Corrections to continue serving the sentence from his first state case.
Petitioner was released from the Oklahoma Department of Corrections after
serving the sentence from his first state case on December 30, 2011. He was
arrested that same day on a warrant issued by the District Court of Creek County,
Oklahoma, for Failure to Notify of Address Change as a Sex Offender. (“Second
state case”). In May 2012, petitioner was sentenced to 4 years imprisonment. The
state court judge ordered that sentence to run concurrently with petitioner’s
federal sentence.
On December 10, 2013, petitioner was released from the Oklahoma
Department of Corrections after serving the sentence from his second state case.
Pursuant to a federal detainer lodged against him, he was released to the U.S.
Marshal and began serving his federal sentence on that date.
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)
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The Bureau of Prisons (“BOP”) prepared a sentence calculation sheet
reflecting that Viehe’s federal sentence began to run on the date he was received
from the Oklahoma Department of Corrections, December 10, 2013.
He was
given no prior credit for time served. His statutory release date via good conduct
credit was calculated to be May 3, 2016. Doc. 10, Ex. 1, p. 14.
Viehe was released from the BOP in May 2016, and he is now serving his 15
year term of supervised release. Doc. 18.
Applicable Law
The Attorney General, acting through the BOP, 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 § 2241 petition.
See,
Romandine v. U.S., 206 F.3d 731, 736 (7th Cir. 2000); Waletzki v. 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(a) provides that a federal prison sentence “commences on
the date the defendant is received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official detention facility at
which the sentence is to be served.” § 3585(b) governs credit for time served
before the commencement of a federal sentence:
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
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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).
Analysis
The fact that petitioner has been released from prison, standing alone, does
not mean that the petition is moot. If the claim advanced in the habeas petition is
correct, Viehe should have been released from the BOP earlier and his term of
supervised release would have begun and ended 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). He is not, however, entitled to habeas relief.
Respondent argues that petitioner failed to exhaust administrative
remedies. Petitioner argues in his reply, Doc. 16, that he was prevented from
properly exhausting by employees of the BOP. The exhaustion requirement here
is not jurisdictional, and the Court deems it more expedient to reach the merits of
the case rather than require further proceeding to resolve the exhaustion issue.
Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir. 1983)
The Seventh Circuit has repeatedly held that § 3585(b) means what it says:
the time that a defendant spends in custody prior to the commencement of a
federal sentence cannot be credited to his federal sentence if that time has been
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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) (Ҥ 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, 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 Viehe seeks credit
for was credited to his Oklahoma state sentences, he cannot receive credit for it
against his federal sentence.
To the extent that Viehe is seeking credit for time served before the
imposition of his federal sentence, his claim fails. § 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 his designee, the BOP.
United States v. Wilson, 112 S. Ct. 1351, 1354 (1992). And, the time that Viehe
spent in custody awaiting his federal sentencing was credited to his sentence in
his first state case.
The time between the imposition of the federal sentence in September 2011
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and the date on which petitioner was received by the BOP in December 2013
cannot be credited to his federal sentence for the same reason, i.e., that time was
credited to his state sentences.
Petitioner does not dispute that §§ 3538(a) and (b) operate as explained
above.
Rather, he claims that the District Judge who sentenced him in the
Western District of Michigan indicated at sentencing that he meant for the federal
sentence to run concurrently with his state sentences.
According to Viehe, at
sentencing, the federal judge said “Just ask them to let the Federal Bureau of
Prisons to [sic] feed you[;] they will be glad to let them feed you.” Doc. 1, p. 19. 4
Petitioner interprets this alleged statement as an explanation of “how to receive
double time credit using concurrent state sentence. . . .” Doc. 16, p. 3.
The judge did not, in fact, order petitioner’s federal sentence to run
concurrently with his state sentence. The judge later confirmed in a letter to the
BOP that he intended the federal sentence to run consecutively. See, Doc. 10, Ex.
1, p. 47.
The statement attributed to the District Judge cannot reasonably be
construed as an order for the federal sentence to run concurrently. First, there
was no reason for the judge to explain at sentencing “how to receive double time
credit.” If the judge wanted the federal sentence to run concurrently with the state
sentences, all he had to do was to order same. Further, the statement attributed
to the judge is more reasonably understood to be a suggestion that petitioner ask
The PACER system for Viehe’s Western District of Michigan case does not contain a transcript of
the sentencing hearing. As he did not appeal, it is highly unlikely that a transcript was prepared.
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Oklahoma to release him from state custody so that he could begin serving his
federal sentence.
Petitioner also argues that the state court judge ordered his second state
sentence to run concurrently with his federal sentence. However, the state court
judge had no power to change the way the federal sentence was calculated:
In our American system of dual sovereignty, each sovereign—whether the
Federal Government or a State—is responsible for “the administration of
[its own] criminal justice syste[m].” [Internal citation omitted.] If a
prisoner like Setser starts in state custody, serves his state sentence, and
then moves to federal custody, it will always be the Federal Government—
whether the district court or the Bureau of Prisons—that decides whether
he will receive credit for the time served in state custody.
Setser v. United States, 132 S. Ct. 1463, 1471 (2012).
In short, all of the time for which petitioner seeks credit was, in fact,
credited to his Oklahoma sentences, and the federal judge did not order his
federal sentence to run concurrently with his state sentences. Therefore, the time
served on the state sentences cannot be credited toward his federal sentence as
well.
Conclusion
Pierce Wiley Viehe’s 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.
DATE: January 29, 2018.
s/ Clifford J. Proud
CLIFFORD J. PROUD
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UNITED STATES MAGISTRATE 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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