Tooley v. Werlich

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 5/16/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH MICHAEL TOOLEY,
# 27713-045,
Petitioner,
vs.
WARDEN WERLICH,
Respondent.

Case No. 18-cv-00999-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Joseph Tooley, who is currently incarcerated in the Federal
Correctional Institution located in Greenville, Illinois (“FCI-Greenville”), brings
this habeas corpus action pursuant to 28 U.S.C. § 2241.

(Doc. 1).

Tooley

challenges the calculation of his federal sentence in United States v. Ahmad, et
al., No. 15-cr-06007-BP-9 (W.D. Mo.) (“federal criminal case”). He seeks credit
for 17 months he spent in custody before the commencement of his federal
sentence. (Doc. 1, p. 2).
This matter is now before the Court for review of the § 2241 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

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gives this Court the authority to apply the rules to other habeas corpus cases.
I.

Background

On April 15, 2015, Joseph Tooley was indicted by a federal grand jury
sitting in the Western District of Missouri for one count of conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846
(“Count 1”). United States v. Ahmad, et al., No. 15-cr-06007-BP-9 (W.D. Mo.)
(Doc. 1, federal criminal case). Pursuant to a plea agreement, Tooley pleaded
guilty to conspiracy to distribute 50 grams or more of methamphetamine on
September 29, 2016. (Docs. 192, 194, federal criminal case).
In the written plea agreement, both parties acknowledged the statutory
penalty Tooley faced, including a sentencing range of “not less than five (5) years
imprisonment” and “not more than forty (40) years imprisonment and not more
than a $5,000,000.00 fine.” (Doc. 194, p. 4, federal criminal case). They also
acknowledged that the Court was required to impose “not less than four (4) years
of supervised release” for the Class B felony. Id. In addition, a money judgment
would be entered against him in an amount “not to exceed $494,200.00.” (Doc.
194, p. 5). The plea agreement also addressed sentencing procedures that would
be used by the court. (Doc. 194, pp. 5-7).
On March 7, 2017, Tooley was sentenced in the United States District
Court for the Western District of Missouri to a 110-month term of imprisonment
for Count 1 “to run concurrent with Circuit Court of Jackson County, MO Case
No. 1216-CR04755 w/ credit for time served.” (Doc. 234, federal criminal case).

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He was subject to five (5) years of supervised release and a forfeiture of
$23,800.00. Id. Final Judgment was entered the same day. Id. An amended
judgment that addressed the special conditions of supervision was entered on
April 3, 2017.

(Doc. 252, federal criminal case).

Tooley did not file a direct

appeal.
On December 22, 2017, he filed a motion to vacate his sentence pursuant
to 28 U.S.C. § 2255. Tooley v. United States, No. 17-cv-06153-BP (W.D. Mo.
2017) (§ 2255 Motion). In his § 2255 Motion, Tooley argued that he should be
awarded credit for 17 months he spent in detention prior to the commencement
of his federal sentence.

(Doc. 1, § 2255 Motion).

The Western District of

Missouri denied the § 2255 Motion on March 28, 2018. (Doc. 10, § 2255 Motion).
The district court directed Tooley to seek judicial review of the matter by filing a
federal habeas petition pursuant to 28 U.S.C. § 2241 in the district where he is
confined, after first exhausting his administrative remedies.

Id.

The instant

habeas action followed.
II.

The Petition

In his § 2241 Petition, Tooley asks this Court to review the computation of
credits he received toward his federal sentence. (Doc. 1). Tooley explained that
he was sentenced to a term of 110 months in federal prison to run concurrently
with a state sentence he was serving in Jackson County Case No. 1216-04755.
(Doc. 1, pp. 6, 8). Tooley contends that he should have also received a credit of
17 months for time he spent in detention before his federal sentence began. Id.

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The Federal Bureau of Prisons (“BOP”) allegedly gave him some portion of this
credit. Id. He now asks this Court to award him all 17 months of credit. (Doc. 1,
p. 8). Along with the § 2241 Petition, Tooley submitted documentation of his
efforts to exhaust his administrative remedies prior to filing this action. (Doc. 1,
pp. 10-18).
III.

Discussion

A federal prisoner who challenges the validity of his conviction or sentence
is generally 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). When the prisoner “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).

Tooley is attacking the length of his confinement,

based on the BOP’s alleged failure to award him credit for time he spent in
presentence custody. See United States v. Wilson, 112 S. Ct. 1351, 1355 (1992)
(Attorney General, acting through the BOP, calculates the sentence “as an
administrative matter when imprisoning the defendant”). The calculation of the
sentence can be challenged in a habeas petition under § 2241. Romandine v.
United States, 206 F.3d 731, 736 (7th Cir. 2000). However, this can only be
done after the petitioner exhausts his administrative remedies.
Allen, 120 F.3d 703, 705 (7th Cir. 1997).

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Clemente v.

Without commenting on the merits of Tooley’s claim, the Court concludes
that the Petition survives preliminary review under Rule 4 and Rule 1(b) of the
Rules Governing Section 2254 Cases in United States District Courts.
IV.

Disposition

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 survives preliminary review.
IT IS ORDERED that Respondent Warden Werlich shall answer the
petition or otherwise plead within thirty (30) days of the date this Order is
entered. 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
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

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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).

Judge Herndon
2018.05.16
14:28:10 -05'00'

IT IS SO ORDERED.

United States District Judge

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