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Bracy v. Clay

United States District Court, D. Arizona

March 30, 2016

Boyer A. Bracy, Petitioner,
v.
Becky Clay, Respondent.

ORDER

FRANK R. ZAPATA SENIOR UNITED STATES DISTRICT JUDGE.

Pending before the Court is Petitioner Boyer A. Bracy’s First Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, Action to Compel Performance of Duty Pursuant to 28 U.S.C. § 1361, and Motion to Compel Discovery. (Doc. 8). Petitioner, represented by counsel, challenges the calculation of his time owed by the Federal Bureau of Prisons (“BOP”). Respondent filed an Answer (Doc. 17), and Petitioner filed a Reply (Doc. 20). At the direction of the Court, Respondent also filed a Supplement to the Answer, providing documentation of the dates that Petitioner entered and exited custody and how his time in custody was apportioned among his various sentences. (Doc. 24). For the reasons that follow, the Court will deny the Petition for Writ of Habeas Corpus, and deny as moot the Action to Compel Performance of Duty and Motion to Compel Discovery.

Factual and Procedural Background

On October 4, 1976 Petitioner was sentenced to 15 years imprisonment with a 20 year special parole term for conspiracy to illegally import a controlled substance, illegal importation of a controlled substance, conspiracy to possess a controlled substance with intent to distribute, and possession of a controlled substance with intent to distribute. (Doc. 24 Attachs. 1, 3). On May 17, 1979 Petitioner was sentenced to 10 years plus a 5 year special parole term for unlawful distribution of heroin. (Doc. 24 Attach. 2). The judgment specified that the sentence was to run concurrently with the 15 year sentence. Id. At this time, Petitioner’s full term expiration date was November 23, 1992. (Doc. 24 Attach. 3 at 2[1]).

Petitioner was released on parole on November 23, 1982 (Doc. 24 Attach. 4 at 15), with 3653 days remaining to be served (Doc. 24 Attach. 5 at 17). Petitioner was arrested on June 20, 1985 for violating parole. (Doc. 24 Attach. 5 at 18).

On August 27 1986, Petitioner escaped from federal prison and was returned to custody on May 26, 1987. (Doc. 24 Attach. 4 at 14). On January 5, 1988 Petitioner was sentenced to 2 years for the escape, to run consecutively to his other prison terms. (Doc. 24 Attach. 6 at 20).

On November 17, 1988 Petition was convicted of income tax evasion and continuing criminal enterprise of possession with intent to distribute cocaine. (Doc. 24 Attach. 7 at 2). Petitioner was sentenced to 10 years imprisonment for the cocaine charge to run consecutively to his term of imprisonment for the escape charge, and 5 years for tax evasion to run concurrently with the cocaine charge. Id. Respondent contends that because Petitioner was convicted of committing the above crimes while on parole, “he was still required to serve his original 3653 days he had remaining at the time he was paroled in 1982.” (Doc. 24 at 2) (citing 28 C.F.R. § 2.52(c)(2)). “Therefore, at this point he had a total of 22 years and 1 day to serve on his aggregate sentence.” (Doc. 24 at 2) (see Doc. 24 Attach. 8 at 19).[2]

On November 27, 1998 Petitioner was released on mandatory parole, and had 3381 days remaining on his aggregate sentence. (Doc. 24 Attach. 8 at 20).

On July 19, 2002 a parole violation warrant was issued for Petitioner. (Doc. 24 Attach. 10 at 30).

On November 14, 2002 Petitioner was sentenced to a term of 78 months imprisonment plus 2 years supervised release for use of a communication facility to commit a drug trafficking offense. (Doc. 24 Attach. 9).

A Notice of Action (“NOA”) dated May 30, 2007 states that Petitioner consented to a revocation of parole, that he forfeited all time spent on parole, that the July 19, 2002 parole warrant would be executed on June 20, 2007, and that parole would be granted on June 20, 2007 after the service of 61 months in custody. (Doc. 24 Attach. 11). Respondent contends that Petitioner still had 3380 days to serve at this time. (Doc. 24 at 2). Per the declaration of Andrew Roush, at the time of the May 30, 2007 NOA, Petitioner was still serving his 78 month sentence “and he remained in custody under that sentence until it was satisfied on January 16, 2008, and he was released from custody.” (Doc. 24 Ex. 1 at 5 ¶ 17) (citing Attach. 8 at 6 [CM/ECF 10]).

On January 16, 2008 Petitioner was released on good conduct time. (Doc. 24 Attach. 4 at 10; Attach. 8 at 9).

On February 2, 2012 a parole violation warrant was issued for Petitioner. (Doc. 24 Attach. 12). The warrant indicated that Petitioner had 3380 days remaining to serve. Id. Petitioner was taken into custody on August 31, 2012, id. at 36, and a preliminary interview was held at USP-Tucson on November 20, 2012 (Doc. 13 at 3). On April 8, 2013 the USPC ordered that Petitioner be released from custody of the warrant. (Doc. 8 Ex. B). The order also stated that Petitioner’s parole was terminated effective April 8, 2013, and that he was to begin his 20 year special parole term on April 8, 2013. Id. Petitioner was not actually released from USP-Tucson until June 13, 2013 due to delays in approving his proposed release plan. (Doc. 17 at 35). The June 6, 2013 ...


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