LIVINGSTON v. FEDERAL BUREAU OF PRISONS
Filing
15
OPINION. Signed by Judge Renee Marie Bumb on 1/24/2018. (rtm, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DAVID LIVINGSTON,
Petitioner,
v.
WARDEN, FCI FAIRTON,
Respondent.
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Civ. Action No. 17-1066 (RMB)
OPINION
On April 6, 2017, Petitioner David Livingston filed an Amended
Petition
for
Writ
of
Habeas
Corpus
under
28
U.S.C.
§
2241,
asserting that the Bureau of Prisons miscalculated his prior
sentence in the Southern District of New York, Case No. 00cr483,
causing him to over-serve his sentence. (Am. Pet., ECF No. 6.) For
relief, he sought immediate release. (Id., at 6, ¶16; Pet., ECF
No. 1 at 2.)
Respondent filed an Answer to the petition on May 16, 2017,
opposing habeas relief because a petitioner cannot challenge the
length of the sentence imposed in a habeas petition under 28 U.S.C.
§ 2241. (Answer, ECF No. 12 at 2.) Additionally, Respondent asserts
Petitioner’s contention that the Bureau of Prisons miscalculated
his sentence relies on his assumption that the underlying sentence
was illegal. (Id.)
This matter comes before the Court upon Respondent’s request
to dismiss the petition as moot because Petitioner was released
from BOP custody on December 29, 2017. (Letter, ECF No. 14.)1
I.
BACKGROUND
On March 3, 2000, Petitioner was on supervised release related
to federal sentences he served in three federal criminal cases
(Case No. 92cr1147 (SDNY), Case Nos. 91cr251 (NDIL) and 94cr594
(NDIL)). (Declaration of Jan Stopps (“Stopps Decl.”) ECF No. 121, ¶7a.) Petitioner was arrested by New York City Police and
detained for criminal conduct that led to new state and federal
charges. (Id.)
In June and July 2000, Petitioner pled guilty in the U.S.
District Court, Southern District of New York to three charges of
wire fraud in Case No. 00cr483. (Id., ¶7b.) On December 18, 2000,
he
was
sentenced
in
that
case
to
a
term
of
135
months
of
imprisonment, followed by a three year term of supervised release.
(Stopps Decl., ¶7(c); Ex. 1c.) Petitioner appealed. (Stopps Dec.
¶5.) On April 15, 2002, the Second Circuit affirmed the District
Court in Case No. 00cr483. (Id.)
On November 17, 2003, Petitioner filed a motion to vacate in
his federal sentencing court, pursuant to 28 U.S.C. § 2255. (Id.)
1
See BOP inmate locator at https://www.bop.gov/inmateloc/
2
The § 2255 motion was denied on May 24, 2004. (Stopps Decl., ¶5.)
Petitioner appealed, and the Second Circuit dismissed the appeal
on July 1, 2005. (Id., ¶6.)
In the meantime, on December 19, 2000, in the Supreme Court
for the State of New York, Case No. 4207-2000, Petitioner was
sentenced to a 3½ to seven year term of imprisonment for criminal
possession of a forged instrument. (Id., ¶7(d); Ex. 1d.) On June
13, 2001, Petitioner’s state criminal conviction was vacated by
the New York County Supreme Court, and he was released from the
custody of New York state authorities on July 5, 2001, to a federal
detainer for service of the federal sentence imposed in Case No.
00cr483. (Id., ¶7(f), Ex. 1e.)
On April 17, 2010, Petitioner satisfied the 135 month sentence
imposed in Case No. 00cr483. (Id., ¶7(l); Ex. 1f.) He then began
serving time on an unrelated sentence. (Pet., ECF No. 1 at 3.) He
was released from federal custody on June 28, 2013. (Id.)
After his release, Petitioner was arrested on March 24, 2016,
in connection with a charge of violation of the terms of supervised
release in Case No. 00cr483. (Stopps Decl., ¶5.) He then filed a
“Motion Correcting Statutory Maximum” with the sentencing court in
that
case.
(Id.;
Ex.
1g.)
On
October
19,
2016,
the
federal
sentencing court issued a Memorandum in which the court explained
that the sentence imposed in Case No. 00cr483 was a legal sentence.
(Stopps Decl., ¶5; Ex. 1j.) On December 19, 2016, the court revoked
3
Petitioner’s term of supervised release in Case No. 00cr0483, and
imposed a sentence of 23 months plus 29 days. (Stopps Decl., ¶5.)
On January 5, 2017, Petitioner filed a motion seeking to alter
his sentence on the revocation of supervised release. (Id., ¶7(w);
Exs. 1m.) On January 13, 2017, the sentencing court denied the
motion. (Id., ¶7(x); Ex. 1o at 2-3.) On the same day, the federal
sentencing court issued an amended Judgment and Commitment Order
in Case No. 00cr483, stating that Petitioner’s sentence for the
violation was a term of custody of:
23 months and 29 days, *which term of
imprisonment shall be consecutive to any
unsatisfied term of imprisonment to which he
may be subject and consecutive to any term of
imprisonment that may be imposed by the State
of New Jersey in respect to any of the New
Jersey crimes, the commission of which
constituted
violations
of
the
term
of
supervised release that the Court has just
revoked.*
(Id., ¶7(y); Ex. 1p at 2.) Petitioner filed a notice of appeal,
and another motion to correct this sentence. (Id., ¶7(z), (aa);
Exs. 1q, 1r.)
The
BOP
computed
Petitioner’s
sentence
on
violation
of
supervised release in Case No. 00cr483 as follows. The 23 month,
29 day term of imprisonment was computed to commence on December
19, 2016, the date supervised release in Case No. 00cr483 was
revoked. (Stopps Decl., ¶16.) Petitioner received 277 days of prior
custody
credit
under
18
U.S.C.
4
§
3585(b),
representing
time
Petitioner served prior to the commencement of the violation of
supervised release term during the following periods: (1) February
20, 2015, through February 21, 2015; (2) February 4, 2016, through
February 5, 2016; (3) February 10, 2016, through February 12, 2016;
and (4) March 24, 2016, through December 18, 2016. (Id.; Ex. 1s at
2.) Petitioner was released from BOP custody on December 29, 2017.
(Respondent’s Letter, ECF No. 14.)
II.
DISCUSSION
First, the Court notes that Petitioner cannot challenge the
length of the sentence imposed in Case No. 00cr483 in the Southern
District of New York by bringing a § 2241 petition in this Court.
“Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by
which
federal
prisoners
can
challenge
their
convictions
or
sentences that are allegedly in violation of the Constitution.”
Okereke v. U.S., 307 F.3d 117, 120 (3d Cir. 2002). A rare exception
exists
where
“[a]
§
2255
motion
would
be
inadequate
or
ineffective,” if an intervening change in law “made the crime for
which the petitioner was convicted non-criminal.” Id. However, §
2255 is not inadequate or ineffective so as to enable a petitioner
to invoke § 2241 “because that petitioner is unable to meet the
stringent gatekeeping requirements” of § 2255(h).
Here, Petitioner has already brought a § 2255 motion in the
Southern District of New York, Case No. 00cr483. If he wishes to
challenge the length of his sentence in that case, he must get
5
permission from the Second Circuit Court of Appeals to bring a
second or successive § 2255 motion.
Second, the present habeas petition, which on the face of the
petition challenges the BOP’s calculation of Petitioner’s sentence
in Case No. 00cr483, is moot because Petitioner is no longer in
BOP custody; therefore the Court can’t grant the relief requested
by Petitioner, immediate release.
Article
III
of
the
Constitution limits the judicial power of federal courts to “cases
or controversies” between parties. U.S. CONST, art. Ill, § 2. “The
parties must continue to have a personal stake in the outcome of
the lawsuit.” Lewis v. Cont'1 Bank Corp., 494 U.S. 472, 477-78
(1990).
An inmate’s challenge to his incarceration satisfies the case
or controversy requirement, but upon the inmate’s release the case
becomes moot “unless he or she can demonstrate some ‘collateral
consequence’ that persists beyond the sentence's expiration and is
‘likely
to
be
redressed
by
a
favorable
judicial
decision.’”
Williams v. Sherman, 214 F. App’x 264, 266 (3d Cir. 2007) (emphasis
added) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). Collateral
consequences will not be presumed and must be proven when the
appellant is attacking a sentence that has already been served.
Burkey
v.
Marberry,
556
F.3d
142,
148
(3d
Cir.
2009).
The
petitioner must show that injury alleged in his petition “will
6
‘likely’ be redressed by the District Court’s grant of his habeas
petition. Id.
As stated above, Petitioner cannot challenge the length of
his sentence imposed in Case No. 00cr483 in this Court. In his §
2241
petition,
calculation
however,
of
his
he
purported
sentence.
to
Assuming
challenge
without
the
finding
BOP’s
that
Petitioner could show the BOP miscalculated his sentence and that
he served an excess term of imprisonment, Petitioner has already
been released, and this Court cannot credit excess time served in
prison against a term of supervised release. See id. at 150-51
(noting
that
incarceration
and
supervised
release
are
not
interchangeable.)
In United States v. Johnson, the Supreme Court held that the
supervised release statute, 18 U.S.C. § 3624, does not permit a
court to credit a supervised release term with a period of excess
prison time. 529 U.S. 53, 58-59 (2000). This is because under §
3624, “[t]he term of supervised release commences on the day the
person is released from imprisonment . . . . A term of supervised
release does not run during any period in which the person is
imprisoned in connection with a conviction for a Federal, State,
or local crime unless the imprisonment is for a period of less
than 30 consecutive days.” Id. at 56-57 (quoting 18 U.S.C. §
3624(e)). Because the habeas relief Petitioner seeks is no longer
available, his petition is moot. See Burkey, 556 F.3d 142, 149–50
7
(3d Cir. 2009) (dismissing § 2241 petition as moot where the
petitioner was released on supervised release while his petition
was pending).
II.
CONCLUSION
For
the
reasons
described
above,
the
Court
dismisses
Petitioner’s Petition for Writ of Habeas Corpus Under § 2241
because it is moot.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 24, 2018
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