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Johnson v. Winn

United States District Court, Ninth Circuit

October 4, 2013

Larry Johnson, Petitioner,
v.
Warden Louis Winn, Respondent.

ORDER

D. THOMAS FERRARO, Magistrate Judge.

Pending before the Court is a Petition for Writ of Habeas Corpus brought pursuant to Title 28, United States Code, Section 2241. Petitioner, Larry Johnson, who is confined in the United States Penitentiary in Tucson, AZ, alleges that the Bureau of Prisons (BOP) is violating its duty to provide him a sentence calculation correction. Before the Court are the Petition (Doc. 1), Respondent's Answer (Doc. 13), and a Reply (Doc. 18). Petitioner also has filed a Motion to Strike portions of Respondent's Answer. (Doc. 19.)

Background

Petitioner was sentenced on August 12, 1996, in the Eastern District of Pennsylvania for 1 count of conspiracy to commit armed carjacking in violation of 18 U.S.C. § 371 (Count 1), to 151 months imprisonment; 1 count of carrying a firearm during a violent crime and aiding and abetting in violation of 18 U.S.C. §§ 924(c)(1), 2 (Count 5), to 60 months imprisonment consecutive to Count 1; 7 counts of motor vehicle theft-carjacking and aiding and abetting in violation of 18 U.S.C. §§ 2119, 2 (Counts 2, 4, 6, 8, 10, 12, 14), to 151 months each, concurrent with each other and Count 1; and 5 counts of carrying a firearm during a violent crime and aiding and abetting in violation of 18 U.S.C. §§ 924(c)(1), 2 (Counts 7, 9, 11, 13, 15), to 240 months each, consecutive to each other and Counts 1 and 5. (Doc. 13, Ex. 1, Attach. 1.) This amounts to a total sentence of 1411 months. Johnson is projected for release on April 8, 2097, via good time conduct credits. ( Id., Ex. 2, Attach. 5.)

Respondent concedes that Petitioner has exhausted his administrative remedies as to the one claim in this case. (Doc. 13 at 7.)

Discussion of Petition

Johnson argues that the BOP has failed in its duty to refer a sentence discrepancy to the United States Attorney for correction. This argument is based on BOP Policy Statement 5880.28:

Any Judgment and Commitment or other court order that requires a sentence to be computed in a manner not consistent with the instructions contained in this manual shall be referred to the appropriate Regional Inmate Systems Administrator.
....
Each judgment and commitment must be carefully monitored to assure that a sentence imposed under 18 U.S.C. § 3559 or 3581 is within the time range of the violated statute. Any discrepancy as to the length of the imposed sentence should be referred to the U.S. Attorney as outlined in the Inmate Systems Management Manual.

Petitioner contends he should have been indicted and sentenced under the criminal statutes in effect at the time of the offenses but the law was amended thereafter and he was charged and sentenced under the amended statutes.[1] He argues this violated his rights under the ex post facto clause. Petitioner calculates that his sentence was unlawfully imposed under the wrong statutes and exceeds a lawful sentence by 105 years.

Respondent argues that Petitioner's claim is not properly brought in this Court as one under § 2241, but rather only may be brought as a claim under § 2255 in the sentencing jurisdiction. Pursuant to § 2255, a prisoner may seek relief from the court that imposed his sentence if he is:

claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....

28 U.S.C. § 2255(a). In contrast, challenges to "the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Hernandez ...


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