Wineinger v. Warden FCI Elkton

Filing 5

Memorandum Opinion and Order denying the Petition 1 pursuant to 28 U.S.C. §2243, and denying as moot the Motion for Expedited Consideration 4 . This Court certifies that an appeal from this decision could not be taken in good faith. 28 U.S.C. §1915(a)(3). Judge Jack Zouhary on 5/14/2013. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Thomas David Wineinger,
Petitioner,

Case No. 3:12 CV 2976
MEMORANDUM OPINION
AND ORDER

-vsJUDGE JACK ZOUHARY
Warden, FCI Elkton,
Respondent.

INTRODUCTION
Pro se Petitioner Thomas David Wineinger filed this Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 in December 2012 (Doc. 1). In February 2013, he filed a Motion for
Expedited Consideration (Doc. 4). Petitioner, who was in federal custody at the Federal Correctional
Institution in Elkton, Ohio (“FCI-Elkton”) when he filed this Petition, names the FCI-Elkton Warden
as Respondent. (He has since been assigned to CCM-Cincinnati, with a projected release date in
August 2013. See Bureau of Prisons Inmate Locator, Register No. 56684-060, available at
http://www.bop.gov/iloc2/LocateInmate.jsp (last visited May 10, 2013).) Petitioner alleges the
Bureau of Prisons is denying him credit on his thirty-month sentence for time he spent on conditional
release pending trial and for the time he spent on house arrest before reporting to prison. He seeks
credit of 223 days toward his sentence. For the reasons set forth below, the Petition is denied.

BACKGROUND
A five-count Information was filed against Petitioner in this Court on December 28, 2010.
After his arrest, a Magistrate Judge conducted a Detention Hearing on January 13, 2011 and
authorized Petitioner to be released on a $175,000 property bond when Pretrial Services was prepared
to accommodate all the conditions of release. Petitioner posted bond the same day and was released
to the Compass drug rehabilitation program. He alleges the drug rehabilitation program was housed
in the annex of the Cuyahoga County jail. Petitioner attended the treatment program from January
18, 2011 until he appeared in this Court on February 22, 2011 for a change of plea hearing.
Petitioner claims the time he spent in the drug rehabilitation program should be considered
“official detention” and credited toward his sentence. He alleges conditions in the drug rehabilitation
program were more restrictive than those to which detainees in the county jail are subjected.
Although he was released on bond, he asserts he was not permitted to leave or move freely around
the facility, and was denied recreation privileges. He reasons that if detention in the county jail would
be considered “official detention,” then his time in the jail annex for the drug rehabilitation program
also should be considered “official detention” and should be credited toward his federal sentence.
Petitioner appeared before this Court for a change of plea hearing on February 22, 2011. He
entered a plea of guilty to Counts One through Five of the Information and was sentenced to thirty
months imprisonment on June 20, 2011. Petitioner was conditionally released on bond and placed
under house arrest from the date of the change of plea hearing until he reported to FCI-Elkton on
August 24, 2011.

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Petitioner contends he also should receive credit toward his sentence for the time he spent on
house arrest between February and August 2011. He indicates house arrest restricted his freedom of
movement because he was required to wear a GPS tether at all times and was required to reside with
his sister rather than in his own home. As a condition of his release, he was required to be supervised
constantly by a relative, and could not leave his sister’s residence unless he was going to his doctor’s
office, court, Alcoholics Anonymous, or to meet his probation officer. He asserts these conditions
severely restricted his liberty and should be considered “official” detention.
STANDARD OF REVIEW
Writs of habeas corpus “may be granted by the Supreme Court, any justice thereof, the district
courts and any circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). Section 2241
“is an affirmative grant of power to federal courts to issue writs of habeas corpus to prisoners being
held ‘in violation of the Constitution or laws or treaties of the United States.’” Rice v. White, 660 F.3d
242, 249 (6th Cir. 2011) (quoting 28 U.S.C. § 2241(c)). Because Petitioner is appearing pro se, the
allegations in his Petition must be construed in his favor, and his pleadings are held to a less stringent
standard than those prepared by counsel. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001).
However, this Court may dismiss the Petition at any time, or make any such disposition as law and
justice require, if it determines the Petition fails to establish adequate grounds for relief. Hilton v.
Braunskill, 481 U.S. 770, 775 (1987); see also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970)
(holding district courts have a duty to “screen out” petitions lacking merit on their face under Section
2243).

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DISCUSSION
Petitioner seeks credit on his federal sentence for time he spent in a drug rehabilitation
program prior to trial and for time he spent on house arrest after his conviction but prior to the date
he reported to prison. Once a defendant is sentenced in federal court, the Attorney General, through
the Bureau of Prisons (“BOP”), is responsible for administering the sentence. See 18 U.S.C.
§ 3621(a). To compute a federal sentence, the BOP must first determine its commencement date. By
statute, a federal sentence commences “on the date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence service of sentence at, the official detention
facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). A federal sentence does not
commence until a prisoner is actually received into federal custody solely for that purpose. Gonzalez
v. Rushing, 2012 WL 2127728 (N.D. Ohio 2012).
The BOP then must apply any jail-time credit to which the offender may be entitled under 18
U.S.C. § 3585(b), which provides:
A defendant shall be given credit toward the service of a term of imprisonment for any
time he has spent in official detention prior to the date the sentence commences -(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the
commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
The issue in this case is whether the time Petitioner spent in the drug rehabilitation facility
while out on bond, and the time he spent on bond under house arrest, qualify as “official detention.”
For the reasons detailed below, they do not.

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The Bail Reform Act of 1984, 18 U.S.C. § 3141, et seq., authorizes federal courts to impose
presentence restraints on a defendant’s liberty. See 18 U.S.C. § 3142(a) (authorizing courts to impose
restraints on the defendant “pending trial”); 18 U.S.C. § 3143(a) (authorizing courts to impose
restraints while the defendant “is waiting imposition or execution of sentence”). Therefore, when
Petitioner appeared before this Court at his bond hearing, the Magistrate Judge had the option to order
his continued detention without bail, or to release him subject to a number of restrictive conditions,
including residence in a community treatment center, or house arrest.

See 18 U.S.C.

§§ 3142(c)(1)(B)(i), (x), and (xiv).
The Supreme Court clarified that once a defendant, like Petitioner, is “admitted to bail, even
on restrictive conditions,” he is “released” and not officially detained for purposes of 18 U.S.C.
§ 3538(b). Reno v. Koray, 515 U.S. 50, 51 (1995). The Court recognized “a defendant ‘released’ to
a community treatment center could be subject to restraints which do not materially differ from those
imposed on a ‘detained’ defendant committed to the custody of the Attorney General . . . .” Id. at
62–63. However, the Court determined there is a significant distinction between defendants released
on bail, and those committed to the custody of the Attorney General because detained defendants
always remain subject to the control of the BOP and are subject to the BOP’s disciplinary procedures,
summary reassignment to another correctional facility, and complete discretion to control many
conditions of confinement. Id. at 63.
Here, Petitioner was released on bond pending trial, a condition of which required him to take
part in a residential drug rehabilitation program housed in an annex of the Cuyahoga County jail. In
arguing this arrangement should be considered “official detention,” Petitioner focuses on the nature
of his living situation, rather than under whose control he was subject at the time. He maintains he

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was in the main part of the jail while he was being detained, and merely transferred to the jail annex
when he was released on bond to the treatment program. But Petitioner’s reading of “official
detention” ignores the critical distinction between defendants who are “detained” and defendants who
are “released” on bail. Without reservation, the former are always subject to BOP control. Petitioner
was not under BOP control once he was released on bail. Restrictive conditions notwithstanding,
Petitioner was not in “official detention” while he was in the Compass treatment program and is not
entitled to credit under Section 3585.
Similarly, Petitioner is not entitled to credit toward his sentence for the time he spent on house
arrest after his conviction but prior to reporting to prison. He claims he was not permitted to return
home but rather was compelled to reside with his sister, and indicates he was required to wear a GPS
monitor and only permitted to leave the house for specific purposes. While release on house arrest
is more restrictive than release without conditions, it is not considered “official detention.” The plain
meaning of the term “detention,” as used in Section 3585, excludes pretrial and post-trial release
subject to house arrest under circumstances where the defendant is not within the custody of the
Attorney General or the United States Marshal. Cofield v. Ne. Ohio Corr. Ctr., 2007 WL 1974849,
at *3 (N.D. Ohio 2007); Medina v. Clark, 791 F. Supp. 194, 196–97 (W.D. Tenn. 1992). Petitioner’s
terms of release are not of the type usually associated with official detention, and Petitioner was not
in the custody of the Attorney General while he was under house arrest. Therefore, the statute
precludes sentence credits for restrictive release.

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CONCLUSION
For the foregoing reasons, the Petition (Doc. 1) is denied pursuant to 28 U.S.C. § 2243, and
his Motion for Expedited Consideration (Doc. 4) is denied as moot. Further, this Court certifies that
an appeal from this decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U.S. DISTRICT JUDGE
May 14, 2013

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