Johnson v. United States of America

Filing 18

MEMORANDUM AND ORDER - For the foregoing reasons, Petitioner's application is DENIED. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Petitioner and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 9/3/2013. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
GARNETT JOHNSON,
Petitioner,
MEMORANDUM & ORDER
10-CV-2794(JS)

-againstUNITED STATES OF AMERICA,

Respondent.
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APPEARANCES
For Petitioner:
Garnett Johnson, pro se
Gilmer Federal Correction Center
Inmate Mail/Parcels
P.O. Box 6000
Glenville, WV 26351
For Respondent:

Charles N. Rose, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, NY 11722

SEYBERT, District Judge:
Garnett Johnson (“Petitioner”) petitions this Court pro
se for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
challenging the execution of his sentence.1

For the following

reasons, his Petition is DENIED.

The Clerk of the Court originally and improperly construed the
Petition as one seeking relief pursuant to 28 U.S.C. § 2255.
(See Civil Cover Sheet, Docket Entry 1-2; see also Order to Show
Cause, Docket Entry 6.) However, Petitioner clarified in his
Reply Memorandum that he was actually seeking relief pursuant to
28 U.S.C. § 2241. (Pet. Reply, Docket Entry 17, at 4.) The
Court agrees that this motion is appropriately brought under
Section 2241, see Adams v. United States, 372 F.3d 132, 135 (2d
Cir. 2004) (“Section 2241 . . . is the proper means to challenge
the execution of a sentence.”), and will analyze it as such.
1

BACKGROUND
On March 19, 1972, a Kings County Supreme Court justice
sentenced Petitioner to a determinate term of seven years for
criminal possession of a controlled substance.

(Pet. Aff., Docket

Entry 2, ¶ 4; Pet. Mem., Docket Entry 4, Ex. A.)

Thereafter, on

November 18, 1976, another Kings County Supreme Court justice
sentenced Petitioner to an indeterminate term of one and a half to
three years for attempted criminal possession of a weapon in the
third degree (together with the 1972 sentence, the “Kings County
Sentences”).

(Pet. Mem. Ex. D; Pet. Aff. ¶ 4.)

On May 11, 1978, Petitioner was convicted by a jury in
the Eastern District of New York of conspiracy to distribute and
possess with intent to distribute heroin (Pet. Mem. Ex. B), and on
July 21, 1978, Judge Jacob Mishler sentenced Petitioner to a prison
term of fifteen years to run consecutive to the Kings County
Sentences and fined him in the amount of $25,000.00 (the “Federal
Sentence”).

(Pet. Mem. Exs. A, B.)2

On February 9, 1979, after Petitioner pled guilty to
manslaughter in the first degree, a Queens County Supreme Court
justice sentenced Petitioner to an indeterminate term of five to
ten years to run concurrent to “any sentence that th[e] defendant

Judge Mishler also sentenced Petitioner to a special parole
term of fifteen years (Pet. Mem. Ex. A, B); however, the special
parole term was vacated by Judge Jack W. Weinstein on September
30, 1982 (Pet. Mem. Ex. C).
2

2

[wa]s presently serving” (the “Queens County Sentence”).
Mem. Ex. E; Gov’t Opp., Docket Entry 11, at 2.)

(Pet.

Then, on April

12, 1979, a Westchester County Supreme Court justice sentenced
Petitioner to an indeterminate term of twenty-five years to life
for kidnapping in the first degree, twelve-and-a-half to twentyfive years for robbery in the first degree, three-and-a-half to
seven years for assault in the second degree, and twelve-and-ahalf to twenty-five years for burglary in the first degree to run
concurrently (the “Westchester County Sentence”).
Gov’t Opp. Ex. 1.)

(Pet. Aff. ¶ 6;

The Westchester County Sentence was to run

consecutive to the Federal Sentence.

(Gov’t Opp. Ex. 1.)

Petitioner was not transferred to federal custody upon
the completion of his Kings County Sentences and, instead remained
in state custody to finish out his Queens and Westchester County
Sentences until May 10, 2010.3

(Pet. Aff. ¶ 7; Gov’t Opp. 2.)

On

June 2, 2010, after being taken into federal custody, Petitioner
filed the pending motion, challenging the order in which his

In the interim, on or around February 17, 2003, Petitioner
wrote to the “Inmate Records Coordinator” in the state facility
in which he was confined asking “if the Federal Bureau of
Prisons or any other Federal agency, has ever requested custody
of [him] or requested that the State relinquish custody of him,
during the past fourteen (14) years.” (Pet. Mem. Ex. F.)
Petitioner received a response on or around February 18, 2003,
stating that “[a] review of [his] file was done. There is
nothing indicating a request for custody from any federal
agency. There is a federal detainer on file. You will be
turned over to their custody upon your earliest release date.”
(Pet. Mem. Ex. F.)
3

3

sentences were being executed and seeking his immediate release
or, in the alternative, a credit towards his federal sentence for
the time he had served in state custody after completing the Kings
County Sentences.
DISCUSSION
The Government argues that Petitioner is procedurally
barred from seeking the requested relief because he failed to
exhaust his administrative remedies.

The Court agrees.

“The Bureau of Prisons [‘BOP’], and not the courts,
determines when a defendant’s sentence starts and whether the
defendant should receive credit for any prior time spent in
custody.”
(2d

Cir.

United States v. Montez-Gaviria, 163 F.3d 697, 700-01
1998).

“Accordingly,

the

district

court

ha[s]

no

authority to require the BOP to credit [a defendant] with the time
he spent in state custody.”

United States v. Pineyro, 112 F.3d

43, 45 (2d Cir. 1997); see also United States v. Whaley, 148 F.3d
205, 206 (2d Cir. 1998).

Petitioners may, however, “seek judicial

review of the BOP’s sentencing determinations after exhausting
their administrative remedies.”

Whaley, 148 F.3d at 207; see also

Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.
2001).

A petitioner’s failure to exhaust administrative remedies

will be excused only upon a showing of cause and prejudice--i.e.,
when

“legitimate

circumstances

beyond

4

the

prisoner’s

control

preclude him from fully pursuing his administrative remedies.”
Carmona, 243 F.3d at 634.
Here, Petitioner admits that he has made no attempt to
exhaust his administrative remedies and argues that the exhaustion
requirement should be excused because: (1) “it would be a complete
waste of time and resources as the Federal Bureau of Prison [sic]
has absolutely nothing to do with the manner in which Mr. Johnson’s
sentence was imposed, or the manner in which it was to be served
along with his previously imposed state of New York sentences”
(Pet. Reply 5) and (2) “[h]ad [he] pursued the administrative
remedy process . . . he would have suffered a greater infringement
of his civil liberty interest rights, and the increased loss of
his precious freedom” (Pet. Reply 6). Neither argument constitutes
“cause

and

prejudice”

sufficient

to

excuse

the

exhaustion

requirement.
First, Petitioner is incorrect that BOP “had nothing to
do” with the execution of his sentence, as “[a]fter a defendant is
sentenced, it falls to BOP, not the district judge, to determine
when a sentence is deemed to ‘commence;’ whether the defendant
should receive credit for time spent in custody before the sentence
‘commenced;’ and whether the defendant should be awarded credit
for ‘good time.’”

Pineyro, 112 F.3d at 45 (quoting 18 U.S.C.

§§ 3585(a)-(b), 3624(a)).

Second, Petitioner’s belief that he may

be entitled to immediate release from prison “does not vitiate the
5

requirement

that

he

exhaust

his

administrative

remedies.”

Gonzalez v. Perrill, 919 F.2d 1, 2 (2d Cir. 1990) (“It may well be
that petitioner deserves immediate release from incarceration.
That

determination,

however,

administrative level.”).
this

case

and

did

not

must

first

be

made

at

the

The Court has reviewed the record in
find

any

other

“cause

of

prejudice”

justifying excusal of exhaustion here; accordingly, the Petition
must be DENIED.
CONCLUSION
For the foregoing reasons, Petitioner’s application is
DENIED.

The Clerk of the Court is directed to mail a copy of this

Memorandum and Order to the pro se Petitioner and to mark this
matter CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT_______
Joanna Seybert, U.S.D.J.
Dated:

September 3, 2013
Central Islip, NY

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