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Brown-Bey v. Shartle

United States District Court, D. Arizona

May 1, 2017

Larry D. Brown-Bey, Petitioner,
v.
J.T. Shartle, Warden, Respondent.

          ORDER

          Honorable Bruce G. Macdonald United States Magistrate Judge.

         Currently pending before the Court is Petitioner Larry D. Brown-Bey's pro se First Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Amended Petition”) (Doc. 10). Respondent has filed his Return and Answer to Petitioner's Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Response”) (Doc. 21). Petitioner filed his Response to the Respondent's Return and Answer to Petitioner's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Reply”) (Doc. 24). The Petition is ripe for adjudication.

         As an initial matter, Petitioner named Louis Winn, Warden of the United States Penitentiary-Tucson (“USP-Tucson”) as the Respondent. See Amended Petition (Doc. 10). The Court takes judicial notice, however, that Louis Winn is no longer warden of USP-Tucson. As such, the Court will substitute the new Warden of USP-Tucson, J. T. Shartle, as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, [1] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Amended Petition (Doc. 10).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner is an inmate currently incarcerated at the United States Penitentiary (“USP”) in Terre Haute, Indiana. See Fed. Bureau of Prisons (“BOP”) Inmate Locater, https://www.bop.gov/inmateloc/ (last visited April 27, 2017). On November 8, 1999, Petitioner was sentenced by the Superior Court of the District of Columbia on six (6) counts of First Degree Child Sex Abuse and one (1) count of Escape. Answer (Doc. 21), Borrego Decl. (Exh. “1”), Superior Ct. of the Distr. of Columbia, Case No. F8202-96, Judgment and Commitment/Probation Order (Attach. “2”) at 1. On the same date, the Superior Court for the District of Columbia also sentenced Petitioner for a second Escape conviction. Id., Exh. “1, ” Superior Ct. of the Distr. of Columbia, Case No. F2442-98, Judgment and Commitment/Probation Order (Attach. “3”) at 1. Petitioner's November 1999 sentence included three (3) consecutive twelve (12) to thirty-six (36) year terms of imprisonment and two (2) consecutive twenty (20) month to five (5) year sentences. Id., Exh. “1, ” Attach. “2” at 1 & Attach. “3” at 1. On December 3, 1999, the Superior Court of the District of Columbia sentenced Petitioner to a third twenty (20) month to five (5) year sentence for a violation of the Bail Reform Act, and ordered the sentence “to run consecutive to any other sentence that defendant is currently serving.” Id., Exh. “1, ” Superior Ct. of the Distr. of Columbia, Case No. F3021-97A, Judgment and Commitment/Probation Order (Attach. “4”) at 1.

         BOP has combined Petitioner's minimum and maximum terms for each consecutive sentence to arrive at a single expiration full term date (“EFT”), mandatory release date (“MRD”), and parole eligibility date (“PED”). Response (Doc. 21), Borrego Decl. (Exh. “1”), United States Department of Justice (“U.S. DOJ”), Federal Bureau of Prisons (“BOP”), Program Statement P5880.33, Chapter 20 (Attach. “6”) at 4. Petitioner's combined minimum term is thirty-six (36) years and sixty (60) months and his combined maximum term is one hundred twenty-three (123) years. See Response (Doc. 21), Exh. “1, ” District of Columbia Dept. of Corrections Face Sheet No. 2, Case Nos. F8202-96, F2442-98 & F3021-97 (Attach. “5”). Petitioner was credited with 568 days of time served. Id., Exh. “1, ” Attach. “5” at 3. Petitioner also earned seventy-five (75) days of extra good time DC education credit awards (“DCEGT”) by earning his Graduate Equivalency Diploma (“GED”). Id., Borrego Decl. (Exh. “1”), Sentence Monitoring Good Time Data (Attach. “7”) at 1. Petitioner's mandatory release date, his maximum consecutive sentences minus any credit time and DCEGT, is projected to be February 2, 2121. See Response (Doc. 21), Exh. “1, ” Attach. “1” at 5. His parole eligibility date, Petitioner's minimum consecutive sentences minus any credit time and DCEGT, is February 3, 2039. Id., Exh. “1, ” Attach. “1” at 5.

         Petitioner filed his initial petition (Doc. 1) on April 21, 2014, which was subsequently amended pursuant to Order of the Court. See Order 4/29/2014 (Doc. 6); Order 5/22/2014 (Doc. 9). Petitioner asserts that BOP has miscalculated his sentence, and that as “a D.C. prisoner from the Superior Court of the District of Columbia [] has the expectation that he will be seen by the USPC after he has completed one third of his original sentence.” Reply (Doc. 24) at 6; see also Amended Petition (Doc. 10) at 4.

         II. ANALYSIS

         A. Jurisdiction

         “Federal courts are always ‘under an independent obligation to examine their own jurisdiction, ' . . . and a federal court may not entertain an action over which it has no jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). “Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court.” Id. at 864. Therefore, before proceeding to any other issue a court must establish whether a habeas petition is filed pursuant to § 2241 or § 2255 to determine whether jurisdiction is proper. Id. at 865.

         Here, Petitioner does not claim that the sentencing court imposed an illegal sentence; rather, he seeks relief with respect to the BOP's calculation of his parole eligibility. Thus, Petitioner is challenging the manner, location, or condition of the execution of his sentence. When a petitioner challenges the “manner in which his sentence was executed, ” the action is “maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241.” Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991); see also Tablada v. Thomas, 533 F.3d 800 (9th Cir. 2008) (section 2241 petition proper to challenge BOP's calculation of good conduct time); Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003) (“a prisoner may seek a writ of habeas corpus under 28 U.S.C. § 2241 for ‘expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole'”) (quoting Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989)); Weinstein v. U.S. Parole Comm'n, 902 F.2d 1451, 1452 (9th Cir. 1990) (“The district court had jurisdiction pursuant to 28 U.S.C. § 2241 to review a claim by a federal prisoner challenging a decision of the United States Parole Commission”). Challenges brought pursuant to § 2241 must be brought in the custodial court. At the time of filing the Petition, Petitioner was incarcerated at USP-Tucson in Arizona. Accordingly, this Court has jurisdiction over this matter. See Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990).

         B. ...


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