Apotosky v. Hanson et al

Filing 15

Memorandum Opinion and Order re 12 Adopting Report and Recommendation dismissing 1 Petition for Writ of Habeas Corpus (2241). Judge Christopher A. Boyko on 3/13/2017. (R,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WAYNE APOTOSKY,
Petitioner,
Vs.
R. HANSON et al.,
Respondents.

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CASE NO. 4:15CV2491
JUDGE CHRISTOPHER A. BOYKO

MEMORANDUM OF OPINION

CHRISTOPHER A. BOYKO, J:
This matter comes before the Court on Petitioner Wayne Apotosky’s Petition
Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody.
(ECF #1). For the following reasons, the Court accepts and adopts the Magistrate
Judge’s Report and Recommendation, and dismisses Petitioner’s Petition.
Respondents’ Motion for Summary Judgment is granted.
FACTS
The following is a factual synopsis of Petitioner’s claims. The Magistrate Judge’s
Report and Recommendation, adopted and incorporated, provides a more complete

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and detailed discussion of the facts.
On December 16, 2005, Petitioner was sentenced to five years of probation in
New York State Superior Court in Case No. 05-1066. On June 26, 2008, Petitioner was
arrested by the State of New York for alleged probation violations and has remained in
continuous custody since this date. On November 5, 2008, Petitioner was temporarily
taken into federal custody pursuant to a writ of habeas corpus ad prosequendum in
Case No. l:09-CR-00166 in the United States District Court for the Western District of
New York. On January 23, 2009, while still in federal custody, Petitioner was sentenced
to a maximum of three years imprisonment by a New York state court. An attorney with
the Federal Detention Center avers that this sentence was ordered to run concurrently
with Petitioner’s sentence for violating the probation stemming from his 2005
convictions.
On October 23, 2009, Petitioner pled guilty to two counts of Possession of Child
Pornography in District Court Case No. 1:09-CR-00166-001. He was sentenced to an
aggregate term of 151 months in prison by the U.S. District Court for Western New
York, to be served concurrently with the undischarged terms of imprisonment imposed
by the New York Court.
Petitioner now seeks credit toward his federal sentence for the time he served in
state prison from January 23, 2009 until October 22, 2009. Petitioner also seeks pretrial
detention credits because a federal detainer prevented him from posting bail in his state
cases. Petitioner also seeks good conduct time credit and alleges that the Bureau of
prisons (“BOP”) did not treat him fairly when he tried to have the state prison where he
was confined designated as the place of confinement for his federal sentence.
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On February 11, 2016, this Court referred Petitioner’s Petition to the Magistrate
Judge for a Report and Recommendation. The Magistrate Judge issued his Report and
Recommendation on February 10, 2017. Petitioner filed his Objection to Report of
Magistrate Judge on March 9, 2017.
ANALYSIS
“After a district court sentences a federal offender, the Attorney General, through
BOP, has the responsibility for administering the sentence.” United States v. Wilson,
503 U.S. 329, 335 (U.S. 1992) (citing 18 U. S. C. § 3621(a)); accord McClain v. Bureau
of Prisons, 9 F.3d 503, 505 (6th Cir. 1993) (“Attorney General, not the court, has the
authority to compute sentence credits for time in detention prior to sentencing.”);
Vincent v. Shartle, 2010 WL 4366063 at *1 (N.D. Ohio Oct. 28, 2010) (Wells, J.)
Furthermore, the BOP’s duty encompasses calculating how much of a sentence the
offender has left to serve, as the offender has a right to certain jail-time credit. (Id.)
The Magistrate Judge correctly points out that Petitioner seeks to gain federal
sentence credit for a time of imprisonment that he already served prior to the imposition
of the federal sentence. The sentencing Order from the District Court for Western New
York was clear that the sentence would be concurrent with the undischarged sentence.
Pursuant to U.S.S.G. 5G1.3 of the sentencing guidelines, regardless of whether
a defendant ultimately receives a sentence that runs consecutively or concurrently to a
pre-existing sentence, the sentence is always ordered to be served consecutively or
concurrently to the “undischarged term of imprisonment.” This is consistent with federal
law, which states that “a sentence cannot begin before the date on which it was
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imposed.” Robles v. Hanson, Case No. 4:15-cv-1220, 2016 U.S. Dist. LEXIS 37054
(N.D. Ohio 2016) (Zouhary, J.) (citing 18 U.S.C. § 3585(a)).
The Court agrees with the Magistrate Judge that Petitioner cannot receive double
credit for time spent in a state prison that was served before his federal sentence was
imposed and thus, this argument is without merit. The Magistrate Judge points out that
Petitioner’s related argument that he was treated unfairly when the BOP would not
retroactively designate the state prison by means of a nunc pro tunc designation as the
place of his confinement for the January 23, 2009 to October 22, 2009 period, is
rendered moot. The Magistrate Judge shows that the BOP did designate the New York
Department of Corrections as the place of confinement for Petitioner’s sentence and
that is why he received credit for the concurrent time.
In his Objections to Report of Magistrate judge, Petitioner argues that he was in
federal custody from November 25, 2008 and should have been given credit for that
time until his federal plea on October 23, 2009. However, Petitioner was sentenced in
New York State Superior Court on December 16, 2005, to five years of probation, then
was arrested on a violation of that probation on June 26, 2008. Petitioner was in
continuous state custody since that date. Petitioner was not in federal custody, and
only taken into temporary federal custody while serving a state sentence.
Petitioner also argues that he should have received pretrial detention credit
toward his federal sentence. Respondent contends that in Kayfez v. Gasele, 993 F.2d
1288 (7th Cir. 1993), one of the cases that Petitioner cites to bolster his argument,
credit only applies when a federal and state sentence are concurrent, the state
sentence is due to expire at a date later than the federal sentence and when applying
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pre-sentencing custody credit to the state sentence results in the state sentence
expiring at a date earlier than the federal sentence. The Magistrate Judge points out
that none of these scenarios apply to Petitioner.
Petitioner also cites Willis v. United States, 438 F.2d 923 (5th Cir. 1971). The
Magistrate Judge finds that this case is applicable but the argument is without merit. In
Willis, the court found that if a petitioner was denied bail in state court due to a federal
detainer, then the time spent in pre-sentencing custody was deemed to have been
spent in connection with the federal offense. 438 F.2d 923. Willis credits apply where a
federal and state sentence are concurrent and the federal sentence is due to expire at
a date later than the state sentence. In Petitioner’s case, the 211 days spent in custody
prior to the commencement of his state sentence were all credited towards his federal
sentence. As the Magistrate Judge concluded above, and the Court agrees, Petitioner
cannot receive credit for time serving a state sentence that was commenced prior to the
imposition of a federal sentence.
The Court agrees with the Magistrate Judge that Petitioner’s argument for good
conduct time is waived. Petitioner’s Memorandum in Support of his Petition and his
Traverse do not develop any argument on this issue. Petitioner does not state how
much good conduct time he accrued or how much of that time he believes was not
properly credited. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to mention
a possible argument in the most skeletal way, leaving the court to put flesh on its
bones.”); Meridia Prods. Liab. Litig. v. Abbott Labs., 447 F.3d 861 (6th Cir. May 11,
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2006).
Respondents have moved for Summary Judgment. In a Section 2241
sentence-computation challenge, it is Petitioner's burden to establish that the BOP's
calculation is erroneous. Garcia v. Pugh, No. 4:13-CV-l153,2013 WL 5756310,at *2
(N.D. Ohio Oct. 23,2013) ("ln a federal habeas petition, there is a presumption of
regularity of the sentence, which the Petitioner must overcome."); Masko v. Shartle.
No. 4: l0-CV-1613,2010 WL 4628733, at *2 (N.D. Ohio Nov. 8, 2010) (same). The
Court finds that Petitioner has not met this burden.
For the foregoing reasons, the Court ADOPTS and ACCEPTS the Magistrate
Judge’s well-reasoned Report and Recommendation and dismisses Petitioner’s Petition
Under 28 U.S.C. §2241 for Writ of Habeas Corpus by a Person in Federal Custody.
Further, under 28 U.S.C. § 1915(a)(3), this Court certifies an appeal could not be taken
in good faith.

IT IS SO ORDERED.

Date:3/13/2017

s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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