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Schweitzer v. United States

April 27, 2006

LEO F. SCHWEITZER, PETITIONER
v.
UNITED STATES, ET AL., RESPONDENTS



The opinion of the court was delivered by: (Judge Kosik)

MEMORANDUM

Leo F. Schweitzer, an inmate currently confined at the Federal Prison Camp at Canaan, Waymart, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1

Attached to his petition are numerous supporting exhibits. Schweitzer has submitted the required filing fee. In the petition, Schweitzer claims that his 1985 judgment and conviction by the United States District Court for the Eastern District of Pennsylvania is void for several reasons.*fn2 He also challenges his sentence calculation by the Bureau of Prisons (BOP), specifically, that the BOP failed to credit his sentence with time served. As a result of the BOP's alleged failure, the United States Parole Commission has subjected him to additional punishment.

On November 7, 2005, an Order was issued directing Respondents to file a response to the allegations set forth in the petition within twenty (20) days. (Doc. 4.) Following an enlargement of time, a response and exhibits thereto were filed on December 12, 2005. (Docs. 14, 15.) A traverse was filed by Schweitzer on January 17, 2006.*fn3 (Doc. 23.) The petition is now ripe for consideration. Also pending are Schweitzer's motion for evidentiary hearing (Doc. 22) and motion for summary judgment (Doc. 29).*fn4

I. Background

A. Factual History - Conviction/Parole Commission Activity

On July 13, 1985, Schweitzer was convicted on charges of filing false statements and mail fraud. (Doc. 14, Ex. 1.) He was sentenced on October 25, 1985 in the Eastern District Court of Pennsylvania to 15 years in prison. He was also ordered to pay a sizable restitution amount.

On September 9, 1985, he filed a motion for entry of judgment of acquittal/or for new trial which was denied by the Eastern District in September of 1985. He thereafter appealed his conviction to the United States Court of Appeals for the Third Circuit. The Third Circuit affirmed his conviction on August 27, 1986. See United States v. Schweitzer, 1988 WL 115774 (E.D. Pa.). Schweitzer again moved for post-judgment relief. On March 3, 1987, the Eastern District Court denied his motion for a reduction of sentence.

Schweitzer also challenged his conviction and sentence in the Eastern District of Pennsylvania by motion filed pursuant to 28 U.S.C. § 2255. In the motion, the following grounds were raised: (1) excessive restitution; (2) defective mail fraud counts/error in trial court's charge to jury on mail fraud; (3) excessive sentence; (4) newly discovered exculpatory evidence withheld by government at trial; and, (5) indictment tainted by statements made by Assistant United States Attorney at grand jury proceedings. The § 2255 motion was denied on October 26, 1988.

On October 23, 1990, a Certificate of Parole was issued paroling Schweitzer from his 15 year sentence on the false statements/mail fraud conviction. He was to remain under supervision until his full term date of October 23, 2000. (Doc. 14, Ex. 2, Cert. of Parole.) Parole was subsequently revoked by Notice of Action dated February 24, 1998, based upon the violation of conditions of release by committing new criminal conduct for which a new conviction was received. (Id., Ex. 3.) Schweitzer received no credit for time spent on parole ("street time") and was ordered to serve 48 months prior to reparole. He was also later ordered to serve an additional 30 days for a rule infraction. (Id., Ex. 4.) On February 23, 1999, Schweitzer was reparoled, and ordered to remain under supervision until his new full term date of January 11, 2008.*fn5

Parole was revoked a second time by Notice of Action dated January 13, 2004. (Id., Ex. 6.) Credit was initially granted by the United States Parole Commission for all street time because the violations were only administrative, and Schweitzer ordered to serve 7 months, to March 20, 2004. (Id.) Schweitzer was thereafter reparoled on March 20, 2004, with a full term expiration date of January 11, 2008.

The Parole Commission later learned that on January 27, 2005, Schweitzer had received a new conviction for criminal activity committed while on parole. His parole case was reopened for a special reconsideration hearing to determine whether his grant of reparole should be cancelled or other action taken. (Id., Ex. 8.) Following a hearing, the earlier grant of parole remained intact, but all street time while on parole was ordered forfeited.*fn6 (Id., Ex. 9.)

B. Factual History - Bureau of Prison Activity

The following facts flesh out the history set forth above and also recite the facts relevant to the BOP's calculation of Schweitzer's sentence computation. Because Schweitzer was sentenced on October 25, 1985, prior to November 1, 1987, his sentence is referred to as an "Old Law" sentence.*fn7

The sentence began to run on the date it was imposed. (See 18 U.S.C. § 3568 (now repealed); Doc. 14, Ex. 12, ¶¶ 7, 8.) Schweitzer was awarded jail time credit of one (1) day for March 19, 1984, toward his sentence. His full term release date became October 23, 2000. (Doc. 14, Ex. 12, ¶ 10.)

Schweitzer was also eligible to receive Statutory Good Time of ten (10) days per month toward his sentence pursuant to 18 U.S.C. § 4161 (now repealed). In light of his 15 year sentence, he was therefore eligible to receive a total of 1,800 days of good time calculated on the basis of 180 month sentence multiplied by 10 days per month, yielding a Statutory Release Date of November 19, 1995.

On October 26, 1990, Schweitzer was released on parole with 3,650 days still remaining to be served on his Old Law sentence (since he was paroled prior to reaching his Full Term Date of October 23, 2000). (Doc. 14, Ex. 12, ΒΆ 14.) Because Schweitzer was released prior to reaching his Statutory Release ...


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