Senior v. Baird

Filing 9

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 7/26/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VIRGIL SENIOR, #40597-039,
Petitioner,
vs.

Case No. 16-cv-0567-DRH

M. BAIRD,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the U.S. Penitentiary at Marion, brings
this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the execution
of his sentence. The petition was filed on May 23, 2016. The Eastern District of
Michigan sentenced petitioner to 132 months of imprisonment on charges for
conspiracy to possess with intent to distribute and to distribute controlled
substances on July 31, 2008, following a guilty plea. The Judgment specified that
it was to run concurrently with petitioner’s state sentence. See United States v.
Senior, Case No. 07-CR-20076 (E.D. Mich. 2008).
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2241
claiming that he has not been given credit for time spent in federal custody prior
to his sentencing.

Petitioner previously raised this claim in an action in the

Eastern District of Michigan pursuant to § 2241 in Senior v. United States of
America, No. 10-11794, (E.D. Mich.).

The Hon. Robert Cleland ruled against

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petitioner on the merits on May 6, 2010, and judgment was entered accordingly.
Senior, 10-11794 (E.D. Mich. May 6, 2010).

Petitioner filed no appeal or

otherwise challenged the judgment. He now alleges that the ruling in Case No. 1011794 was improper because he was housed in F.C.I. Beamount Low, in
Beamount Texas at that time Judge Cleland entered his order, and thus Judge
Cleland had no jurisdiction.

Petitioner also disagrees with Judge Cleland’s

conclusion that all of petitioner’s time in custody prior to sentencing was properly
credited to his state court sentence. The petition is now before the Court for
review under Rules 1(b) and 4 of the Rules Governing 2254 Cases in United
States District Courts.
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
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.

After carefully

reviewing the petition in the present case, the Court concludes that petitioner is
not entitled to relief, and the petition must be dismissed.
Discussion
Petitioner claims that the prior court to hear his claims erred because it did
not actually have jurisdiction to hear his claim. It appears from the documents
that petitioner submitted that he originally filed his claim as a motion to clarify

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his sentence on the criminal docket.

(Doc. 1, p. 10).

The court on its own

initiative construed petitioner’s pro-se motion as a habeas claim and ordered a
new case opened. (Doc. 1, p. 6). It was therefore initially unclear what standard
petitioner intended to proceed under; the respondent assumed that the case
would proceed pursuant to § 2255, presumably because it had been filed in the
court of conviction, and argued that petitioner missed the statute of limitations
under that standard.

(Doc. 1, p. 10).

However, when the court analyzed the

merits of the case, it proceeded under § 2241, despite the fact that the petitioner
was no longer incarcerated in the district. (Doc. 1, p. 4). Petitioner now asserts
that this was error. (Doc. 1, p. 4). He further reasserts the subject of his original
petition, namely that he should be credited with time spent incarcerated prior to
sentencing. Petitioner filed no motions to raise this error in the Eastern District of
Michigan. He did not file an appeal of that decision.
That statute governing finality of habeas decisions provides:
No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the detention
of a person pursuant to the judgment of a court of the United States
if it appears the legality of such detention has been determined by a
judge or court of the United States on a prior application for a writ of
habeas corpus
28 U.S.C. § 2244(a)
The question here is whether the petition, which alleges a prior error, is subject to
§ 2244. If it is, it is subject to dismissal.
Although petitioner is belatedly attacking the original court’s jurisdiction
over his case, he is also re-raising the arguments that court considered, namely,
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that his time in custody prior to federal sentencing should be set off against his
federal sentence. The previous petition was resolved on the merits, and the judge
specifically addressed the issue of presentencing set-off time. While it is possible
that the prior court’s decision to apply § 2241 to the petition when petitioner was
not incarcerated in the district was in error, the Court in Bradley v. Lockett held
that a motion raising a procedural error is still subject to the successive challenge
provisions. 549 F. App’x 545, 550 (7th Cir. 2013). The nature of the claim being
made determines whether a proceeding falls under § 2244. If the claim presented
“attacks the federal court’s previous resolution on the merits,” that is, “a
determination that there exist or do not exist grounds for entitling a petitioner to
habeas relief,” then it is a habeas claim. Gonzales v. Crosby, 545 U.S. 524, 532,
532 n. 4 (2005) (emphasis in original). Here, petitioner is arguing that contrary
to the findings of the prior court, he is entitled to habeas relief. That brings his
claim under § 2244. That is, petitioner is not entitled to claim that his prior
habeas proceeding is a complete nullity due to an error and thus bypass the rules
governing finality.
Pursuant to § 2244(a), petitioner’s successive § 2241 petition is barred
because it is directed at the same issue as a prior habeas petition. 28 U.S.C. §
2244(a); Schaefer v. Bezy, 199 F. App’x. 548, 551 (7th Cir. 2006); Valona v.
United States, 138 F.3d 693. 694-95 (explaining the relationship between the
different habeas statutes and § 2244, and noting that successive petitions under §
2241 directed to the same issue concerning execution of a sentence are barred).

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This district court therefore lacks jurisdiction over this petition and it must be

Digitally signed by
Judge David R.
Herndon
Date: 2016.07.26
08:00:42 -05'00'

DISMISSED.
IT IS SO ORDERED.
DATED: July 26, 2016

United States District Judge

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