Roberts v. Ormond
MEMORANDUM OPINION & ORDER: (1) Roberts's petition for a writ of habeas corpus (Doc. # 1 ) is DENIED; (2) Roberts's Motion to Expedite (Doc. # 5 ) is DENIED AS MOOT; (3) The Court will enter a judgment contemporaneously with this Order; and (4) This matter is STRICKEN from the Courts active docket. Signed by Judge David L. Bunning on 5/24/17.(SYD)cc: COR, mailed to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 17-83-DLB
MEMORANDUM OPINION AND ORDER
J. RAY ORMOND, Warden,
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Federal inmate Jermaine Roberts filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 to challenge the Bureau of Prisons’ calculation of
his prior custody credits. (Doc. # 1). In essence, Roberts argues that 18 U.S.C. § 3583
requires the BOP to credit time he spent in custody in service of previous federal
sentences imposed because he violated the terms of his supervised release against his
most recent revocation sentence. (Doc. # 5).
On April 12, 2017, the Court entered an Order requiring Roberts (1) to pay the
filing fee, (2) to file his petition on a court-supplied form, adequately stating the factual
and legal basis for the relief he sought, and (3) to explain why his petition should not be
dismissed as prematurely brought because he plainly had not exhausted his
administrative remedies before filing suit. (Doc. # 3).
Roberts paid the filing fee. (Doc. # 4). He also filed a response to the Court’s
Order. (Doc. # 6). However, the response consists almost entirely of argument in
support of his petition. Roberts did not complete the court’s habeas petition form as he
was ordered to do, and his explanation regarding his admitted failure to invoke, let alone
complete, the BOP’s inmate grievance process is limited to a conclusory one-sentence
assertion that the grievance process would be ineffective and insufficient. Id. at 4.
As the Court cautioned Roberts, his petition will be denied for failure to comply
with an Order of the Court requiring him to file his petition on the Court’s form. Santiago
v. Crews, No. 3: 10-CV-P131-S, 2010 WL 2960741 (W.D. Ky. July 26, 2010) (citing
Daily v. Municipality of Adams County, 117 F. App’x 669, 672 (10th Cir. 2004)). In
addition, his petition is subject to dismissal where he readily acknowledges his failure to
exhaust administrative remedies. Cf. Giannini v. Hickey, No. 5: 10-CVV-49-JMH (E.D.
Ky. Mar. 11, 2010), aff’d, No. 10-5531 (6th Cir. Mar. 25, 2011).
Roberts’s petition is also meritless. In 2010, Roberts was sentenced to sixty
months imprisonment for multiple counts of mail and wire fraud. Roberts was released
from prison in August 2013, but a month later, federal probation officers sought to
revoke his supervised release for six violations.
Roberts served the resulting four-
month prison term, but in September 2014 was found guilty of six more violations and
was sentenced to a six-month prison term. Roberts finished that second term in March
2015, but he then committed three more violations, resulting in an eight-month
supervised release sentence being imposed in April 2015. After completing service of
that prison term for his third set of violations, in March 2016, Roberts committed new
criminal conduct resulting in five more violations. On February 1, 2017, Roberts was
sentenced to twenty-four months imprisonment, with no new term of supervised release
to follow. United States v. Roberts, No. 3:09-CR-60-SMR-TJS-1 (S.D. Iowa 2009).
Notably, on March 20, 2017, Roberts filed a pro se motion “to reconsider” in his
criminal case seeking the exact same relief he seeks here: 641 days of “credit” against
his fourth revocation sentence for time he spent in jail serving his first three revocation
In doing so, Roberts expressly argued that the trial court’s 24-month
sentence exceeded the “cap” he believes is created by Section 3583. The trial court
denied that motion on April 19, 2017, noting amongst other things that Section 3583
does not apply to the sentence he is currently serving - his fourth supervised release
revocation sentence - because no new term of supervised release was imposed.
(Docs. # 288, 297, and 303).
Properly characterized, Roberts’s challenge is not to the BOP’s computation of
his fourth revocation sentence, but to the sentence itself. That challenge is not properly
brought in a habeas corpus petition under Section 2241. Capaldi v. Pontesso, 135 F.3d
1122, 1123 (6th Cir. 2003). Accordingly,
IT IS ORDERED as follows:
Roberts’s petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2241 (Doc. # 1) is DENIED;
Roberts’s Motion to Expedite (Doc. # 5) is DENIED AS MOOT;
The Court will enter a judgment contemporaneously with this Order; and
This matter is STRICKEN from the Court’s active docket.
This 24th day of May, 2017.
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