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Akard v. Shartle

United States District Court, D. Arizona

October 31, 2017

Jeffrey E. Akard, Petitioner,
v.
J.T. Shartle, Respondent.

          REPORT AND RECOMMENDATION

          Leslie A. Bowman United States Magistrate Judge

         On June 12, 2017, the petitioner, an inmate confined in the Federal Correctional Institution in Tucson, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. (Doc. 1) The petitioner claims the Bureau of Prisons has failed to recognize that new evidence exists that casts doubt on the trial court's calculation of his criminal history points. (Doc. 1, p. 4)

         Pursuant to the Rules of Practice of this Court, this matter was referred to the Magistrate Judge for Report and Recommendation.

         The petition should be dismissed. Akard's claim is not cognizable.

         Background

         The petitioner, Akard, pleaded guilty pursuant to a plea agreement in the U.S. District Court for the Northern District of Indiana to one count of receiving child pornography on July 28, 2008. (Doc. 12-2, p. 9) At sentencing, there was a discussion as to whether Akard's 2000 Georgia state court offense should result in one criminal history point or two. (Doc. 12-4, pp. 3-4); (Doc. 16, pp. 8-10) Akard argued that this offense was resolved under the Georgia First Offender Act, and while he served 83 days of pretrial detention, this was not a sentence within the meaning of the Guidelines. (Doc. 16, pp. 9-10) The sentencing court decided that the offense should result in two criminal history points. (Doc. 12-4, pp. 3-4); (Doc. 12-2, p. 10); (Doc. 16, pp. 8-10) It placed Akard in Criminal History Category III, calculated a guideline range of 151 to 188 months, and imposed a sentence of 170 months' imprisonment and five years' supervised release on July 30, 2008. (Doc. 12-4, pp. 3-4); (Doc. 12-2, p. 10); (Doc. 16, pp. 8-10) Akard has been attempting to relitigate this issue ever since.

         On August 1, 2008, Akard filed notice of appeal. (Doc. 12-3, pp. 2-3) On January 27, 2009, the Seventh Circuit dismissed the appeal because Akard's plea waiver did not contain an exception for legal issues and there was no showing that the plea waiver was not knowing and voluntary. (Doc. 12-3, p. 5)

         On February 13, 2009, Akard filed a Motion to Reconsider with the sentencing court. (Doc. 12-3, p. 11) The court dismissed the motion the same day explaining that his “appeal is presently before the Court of Appeals.” Id. Moreover, the motion appeared to be a § 2255 petition and was not in the proper form. (Doc. 12-3, p. 12)

         On July 27, 2009, Akard filed a petition pursuant to 28 U.S.C. § 2255. (Doc. 12-3, p. 14) The sentencing court denied the petition because “Akard's guilty plea was made knowingly and voluntarily, ” and “the waiver in the plea agreement bars the remaining grounds for Akard's claim.” (Doc. 12-4, p. 6) Akard's appeal was dismissed as untimely on October 11, 2011. (Doc. 12-4, p. 31)

         Akard petitioned for leave to file a second or successive § 2255 petition on February 9, 2016. (Doc. 12-4) He argued he had “newly discovered evidence” - an order from the Georgia Superior Court Judge clarifying his prior sentence. (Doc. 12-4, pp. 40, 50) The order explained that Akard was not “sentenced to a prison sentence.” Id. His sentence dated June 29, 2000 was “credit for time served.” Id. The Seventh Circuit denied the petition on February 19, 2016 because Akard was bringing the same claim that he raised in his first §2255 petition. (Doc. 12-5, p. 2)

         On December 22, 2016, Akard filed a “motion pursuant to nunc pro tunc” with the sentencing court. (Doc. 12-5, pp. 4-12) He attached his Georgia Superior Court Order Clarifying Sentence and argued, again, that his Georgia prior should be assessed one criminal history point pursuant to USSG § 4A1.1(c), he should be in criminal history category II, and the court should sentence him within the guideline range of 135-168 months. (Doc. 12-5, pp. 11-12) The sentencing court interpreted the motion as a petition pursuant to § 2255 and dismissed it as successive without leave from the Seventh Circuit. (Doc. 12-5, pp. 19-22) The Seventh Circuit denied Akard's appeal on August 22, 2017. (Doc. 12-5, p. 27)

         On June 12, 2017, Akard filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1) He claims the Bureau of Prisons has failed to recognize that new evidence exists that casts doubt on the trial court's calculation of his criminal history points. (Doc. 1, p. 4)

         The respondent filed an answer on September 1, 2017. (Doc. 12) Akard filed a reply on September 25, 2016. (Doc. 17) The court ...


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