Johnson v. Baird

Filing 5

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/31/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BENJAMIN A. JOHNSON,
# 32451-044,
Petitioner,
vs.
M. BAIRD,
Respondent.

Case No. 16-cv-235-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Benjamin Johnson, who is currently incarcerated in the United
States Penitentiary at Marion, Illinois (“USP-Marion”), brings this habeas corpus
action pursuant to 28 U.S.C. § 2241, in order to challenge the calculation of his
federal sentence in United States v. Flenory, et al., No. 05-cr-80955-AC-RSW-11
(E.D. Mich. 2005) (“federal criminal case”). Johnson seeks credit under 18 U.S.C.
§ 3585(b) for 1,530 days he spent in custody before the commencement of his
federal sentence.
This matter is now before the Court for review of the First Amended
Petition 1 pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States
1

After filing his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1)
(“Original Petition”), Johnson filed a Motion to Amend/Correct Petition for Writ of Habeas
Corpus (Doc. 3). In the motion, Johnson requested leave to supplement the Original
Petition with additional information and arguments. Johnson later filed a proposed
“Supplement” (Doc. 4). Although the Court normally does not accept piecemeal
amendments to pleadings, it will do so in this particular situation, where Johnson sought
leave to supplement the Original Petition prior to this Court’s preliminary review of this
matter. The Motion to Amend (Doc. 3) shall therefore be GRANTED, and the Clerk will
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District Courts, which provides that upon preliminary consideration by the
district court judge, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.” Rule 1(b)
of those Rules gives this Court the authority to apply the rules to other habeas
corpus cases.
I.

Background

On October 28, 2005, Benjamin Johnson 2 was indicted by a federal grand
jury for conspiring to distribute five kilograms or more of cocaine in violation of
21 U.S.C. §§ 841 and 846, for possession with intent to distribute more than 500
grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1), and for
conspiracy to

launder

monetary instruments

in violation

of 18

U.S.C.

§§ 1956(a)(1) and 1956(h). (Doc. 1, federal criminal case). Pursuant to a written
plea agreement, Johnson pleaded guilty to conspiracy to distribute cocaine and
conspiracy to launder monetary instruments.

See United States v. Johnson,

371 Fed. Appx. 631, 632 (6th Cir. 2010) (summarizing procedural history of
federal criminal case).
Both parties to the plea agreement initially indicated that Johnson’s
Guideline sentencing range was 188-235 months, but later agreed that it was 262be DIRECTED to refile the Original Petition (Doc. 1) and Supplement (Doc. 4) as a single
pleading entitled “First Amended Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241.” The Court will refer to Documents 1 and 4 collectively in this Order
as the “First Amended Petition.”
2
Benjamin Johnson, who has used a number of aliases that include “James Lee Belle,”
acted as a manager of a large cocaine distribution conspiracy known as the “Black Mafia
Family.”
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327 months. Id. at 634. Incorporated by reference into the plea agreement was a
cooperation agreement, in which the Government agreed to move for a reduced
sentence of 94-118 months under either U.S.S.G. § 5K1.1 or Federal Rule of
Criminal Procedure 35 if Johnson provided “substantial assistance” to the
Government. When Johnson failed to do so, the Government declined to move
for a reduced sentence.
At sentencing, Johnson’s attorney argued that his client should receive
credit for time that Johnson served in state prison under U.S.S.G. § 5G1.3. Id.
At the time of the indictment in his federal criminal case, Johnson was serving a
sentence in state prison for a drug offense. On November 17, 2008, the United
States District Court for the Eastern District of Michigan imposed a sentence of
150 months after acknowledging that Johnson was indeed “entitled to credit” for
time he served in State custody. Id.
Johnson maintains that he never received this credit. He filed numerous
motions for reconsideration and sentence reduction in his federal criminal case.
(Docs. 1408, 1416, 1450, 1459-62, 1472, 1496, 1500, 1524-33, federal criminal
case). To date, his motions have been denied. (Docs. 1428, 1457, 1511, federal
criminal case). Johnson also filed multiple appeals to challenge the validity of the
written plea agreement, his conviction, and his sentence.

United States v.

Johnson, No. 08-2529 (6th Cir. 2008) (“first appeal”); United States v. Johnson,
No. 08-2562 (6th Cir. 2008) (dismissed as duplicative); United States v. Johnson,
No. 08-2563 (6th Cir. 2008) (dismissed as duplicative); United States v. Johnson,

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No. 13-2485 (6th Cir. 2013) (“second appeal”); United States v. Johnson, No. 152272 (6th Cir. 2015) (“third appeal”).
In the first appeal, the Sixth Circuit affirmed Johnson’s conviction and
sentence on April 6, 2010, after rejecting his challenges to his written plea
agreement and his sentence.

United States v. Johnson, 371 Fed. Appx. 631

(6th Cir. 2010). In his second appeal, the Sixth Circuit denied his request for a
sentence reduction under Federal Rule of Criminal Procedure 35(a). (Doc. 39-1,
second appeal).

The Sixth Circuit dismissed the third appeal at Johnson’s

request. (Doc. 6, third appeal).
Johnson never filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. (Doc. 1, pp. 3-4, instant case). However ,he filed a
Petition for Writ of Mandamus in the United States District Court for the Eastern
District of Michigan on February 5, 2016.

In re Johnson, No. 16-1149

(E.D. Mich. 2016). While that petition was pending, he filed the instant § 2241
petition in this District.
II.

First Amended Petition

In the First Amended Petition, Johnson claims that he should have been
awarded a credit against his 150-month federal sentence for 1,530 days that he
spent in custody prior to the date his federal sentence formally commenced.
(Doc. 1, p. 3). This includes time that he spent in jail from October 27, 2005 to
January 4, 2010. (Id. at 2). Specifically, Johnson claims that his sentence was
improperly calculated under 18 U.S.C. § 3585(b).

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(Docs. 1, 4).

The Federal

Bureau of Prisons allegedly gave him no credit for this time. He asks this Court
to award him the credit now. (Doc. 1, pp. 3-4). Along with the petition, Johnson
submitted documentation of his efforts to exhaust his administrative remedies
within the Federal Bureau of Prisons prior to filing this action. (Doc. 4).
III.

Discussion

Normally, a federal prisoner who challenges the validity of his conviction or
sentence is required to bring his claim in a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 in the district of conviction. Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003). However, when an inmate “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.” Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994) (citations
omitted) (emphasis added). In this case, Johnson is attacking the length of his
confinement, based on the Federal Bureau of Prison’s failure to award him credit
for time he spent in presentence custody. Generally, it is the Bureau of Prisons
that computes credit under 18 U.S.C. § 3585(b) after the sentence is imposed.
United States v. Lemus-Rodriguez, 495 Fed. Appx. 723, 726 (7th Cir. 2012)
(citing United States v. Wilson, 503 U.S. 329, 333-35 (1992)). The calculation of
the sentence can be challenged in a habeas petition under § 2241. Romandine v.
United States, 205 F.3d 731, 736 (7th Cir. 2000).
Without commenting on the merits of Johnson’s claim, the Court concludes
that the First Amended Petition survives preliminary review under Rule 4 and

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Rule 1(b) of the Rules Governing Section 2254 Cases in United States District
Courts.
IV.

Disposition

IT IS HEREBY ORDERED that the Motion to Amend/Correct Petition for
Writ of Habeas Corpus (Doc. 3) is GRANTED. The Clerk is DIRECTED to refile
the Original Petition (Doc. 1) and Supplement (Doc. 4) as a single pleading
entitled “First Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241.”
IT IS ORDERED that Respondent Warden M. Baird shall answer the
petition or otherwise plead within thirty (30) days of the date this order is entered
(on or before May 2, 2016). 3 This preliminary order to respond does not, of
course, preclude the Government from raising any objection or defense it may
wish to present.

Service upon the United States Attorney for the Southern

District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois, shall constitute
sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud for disposition, as contemplated by

3

The response date Ordered herein is controlling. Any date that CM/ECF should generate
in the course of this litigation is a guideline only. See SDIL-EFR 3.
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Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to
such a referral.
Petitioner

is

ADVISED

of

his

continuing

obligation

to

keep

the

Clerk (and each opposing party) informed of any change in his whereabouts
during the pendency of this action. This notification shall be done in writing and
not later than seven days after a transfer or other change in address occurs.
Failure to provide such notice may result in dismissal of this action. See FED. R.
CIV. P. 41(b).

Digitally signed by
Judge David R.
Herndon
Date: 2016.03.31
19:52:12 -05'00'

IT IS SO ORDERED.
DATED: March 31, 2016

United States District Court

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