Vitrano v. Werlich

Filing 6

ORDER DISMISSING CASE for lack of jurisdiction. Signed by Judge David R. Herndon on 4/25/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS P. VITRANO,
# 06661-089,
Petitioner,

Case No. 17-cv-410-DRH

vs.
T.B. WERLICH,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Thomas Vitrano, who is currently incarcerated in the Federal
Correctional Institution at Greenville, Illinois, brings this habeas corpus action
pursuant to 28 U.S.C. § 2241 to challenge the computation of his sentence by the
Federal Bureau of Prisons (“BOP”). (Doc. 1). This matter is now before the Court
for review of the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases
in United States 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. Following careful review of the petition in the
present case, this Court concludes that petitioner is not entitled to relief, and the
petition must be dismissed.

1

Background
In 2002, in Case No. 02-CR-199 in the Eastern District of Wisconsin, the
government charged the petitioner with unlawful possession of a firearm, 18
U.S.C. § 922(g)(1), under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
924(e).

Petitioner was ultimately sentenced to 30 years in prison under the

ACCA. United States v. Vitrano, 495 F.3d 387 (7th Cir. 2007). In March of 2008,
petitioner filed a fraudulent motion under 28 U.S.C. § 2255 attacking this
sentence, for which he was charged and convicted in Case No. 09-CR-140 in the
Eastern District of Wisconsin. In Case No. 09-cr-140, petitioner was sentenced to
120 months in prison, with 72 months running concurrently and 48 months
consecutively to the sentence in Case No. 02-cr-199. United States v. Vitrano,
Case No. 09-cr-140 (E.D. Wis. Aug. 28, 2013).
In 2015, petitioner filed a § 2255 petition in response to the Supreme Court
declaring a portion of the ACCA to be unconstitutionally vague. See Johnson v.

United States, 135 S. Ct. 2551 (2015). On October 28, 2015, his § 2255 petition
was granted, and his sentence in Case No. 02-cr-199 was reduced to 120 months.
His first sentence was therefore deemed satisfied as of August 11, 2011, although
he had served time beyond that date. (Doc. 1, pp. 6-7); (Doc. 1-1, pp. 26-28).
Because his first sentence had ended before his second sentence had begun,
petitioner’s sentence in Case No. 09-cr-140 was de-aggregated. (Doc. 1-1, pp. 2628). In sum, his second sentence was deemed to have commenced on August 26,
2013, the day petitioner was sentenced, and he was given credit for the additional

2

time served between the effective completion date of his first sentence and the
date on which his second sentence had commenced.

Id.

Petitioner’s new

projected release date is April 27, 2020. (Doc. 1-1, p. 7).
On November 25, 2015, petitioner filed a petition for habeas corpus
pursuant to 28 U.S.C. § 2241 in the United States District Court for the Northern
District of West Virginia. Vitrano v. Saad, Case No. 15-cv-220 (N.D.W.V. Aug. 31,
2016) (Doc. 1). Petitioner claimed in his petition that he was being unlawfully
imprisoned by the BOP because the BOP miscalculated his sentence in Case No.
09-cr-140 by treating it as fully consecutive to his sentence in Case No. 02-cr-199
as opposed to partially concurrent to it.

The District Court for the Northern

District of West Virginia denied petitioner’s petition with prejudice, holding “that
the BOP correctly applied Vitrano’s sentence pursuant to its Program Statement
and the law.” Id. at (Doc. 35, p. 22). The Court noted that “[b]y definition, a
sentence cannot be served concurrently when there is no other sentence with
which to run it” and “there is simply no legal support for the argument that his 72
month concurrent sentence should be credited retroactively to a previous
sentence satisfied prior to the imposition of his second sentence.” Id. (Doc. 35, p.
14).
Habeas Petition
Petitioner has reasserted the same grounds in his petition in the instant
case (Doc. 1) that the Northern District of West Virginia deemed meritless and
dismissed with prejudice in petitioner’s earlier motion under 28 U.S.C. § 2241.

3

Thus, petitioner's claims are clearly barred by 28 U.S.C. § 2244(a), which
provides in pertinent part that no district court
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 that 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....
The Seventh Circuit Court of Appeals has construed this provision to bar
successive § 2241 petitions that are directed at the same issue raised in a prior
petition. See Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); West v.

Zuercher, Case No. 07-1127, 2007 WL 2680566, at *2 (C.D. Ill. July 18, 2007).
The improper successive petition must be dismissed for lack of jurisdiction. See,

e.g., Schaefer v. Bezy, Case No. 06-1101, 2006 WL 2829002, at *2 (7th Cir. Sept.
29, 2006).
Disposition
Accordingly, the petition is summarily DISMISSED for lack of jurisdiction.
Petitioner’s emergency motion for an expedited fast track court order compelling
warden Werlich to release Vitrano (Doc. 2), urgent motion requesting bail (Doc.
3), and motion to transfer case (Doc. 4) are DENIED as MOOT.

Digitally signed by
Judge David R. Herndon
Date: 2017.04.25
15:15:10 -05'00'

IT IS SO ORDERED.
DATED: April 25, 2017

UNITED STATES DISTRICT JUDGE

4