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Powell v. Holt

January 4, 2008

HERBERT S. POWELL, PETITIONER
v.
RONNIE R. HOLT, RESPONDENT



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

(Chief Judge Kane)

MEMORANDUM

Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by Petitioner Herbert S. Powell ("Powell"), an inmate currently incarcerated at the United States Penitentiary at Canaan in Waymart, Pennsylvania. Powell is challenging the Bureau of Prisons' ("BOP") calculation of his federal sentence. For the reasons that follow, the petition will be denied.

I. BACKGROUND

On June 18, 1999, Powell was sentenced to term of five (5) years of probation in the Superior Court of Mercer County, New Jersey after pleading guilty to one count of theft by deception.*fn1 After being placed on supervised release from that state sentence, at some time between July 2002 and December 2002, Powell committed one count each of the federal offenses of conspiracy to commit bank fraud, see 18 U.S.C. § 371, and bank fraud, see 18 U.S.C. § 1344. (Doc. No. 9-3, at 13.) Federal authorities arrested Powell on those charges on June 23, 2003. (Id. at 19.)

On June 26, 2003, federal authorities lodged a detainer against Powell and in favor of New Jersey authorities in order for the state court to sentence Powell on a parole violation. (Id.) As a result, Powell was released from federal custody via bond on August 19, 2003, and placed in the custody of New Jersey authorities. (Id. at 20.)

On November 7, 2003, Powell was sentenced in the Superior Court of Mercer County to a term of imprisonment of five (5) years on parole violation charges. (Id. at 10.) At that time Powell received 81 days of credit toward his state sentence from August 19, 2003 (the date he was placed in the custody of New Jersey authorities), to November 7, 2003 (the date he was sentenced on the parole violation in state court). (Id.)

On November 10, 2003, Powell was produced from New Jersey custody pursuant to a federal writ of habeas corpus ad prosequendum for sentencing in the United States District Court for the District of New Jersey on the federal counts of conspiracy to commit bank fraud and bank fraud. (Id. at 20.) The court sentenced Powell to a term of imprisonment of 56 months on both counts, to run concurrently with each other and consecutively to the state sentence. (Id. at 13-14.)

On February 2, 2005, Powell was returned to the custody of the State of New Jersey. (Id. at 20.) However, during the period of time, November 10, 2003, through February 2, 2005, New Jersey authorities still maintained primary custody over Powell, with federal officials assuming secondary custody.

Powell was paroled from his state sentence on March 13, 2006, at which time federal authorities assumed primary custody. The New Jersey Department of Corrections credited Powell from August 19, 2003, to March 13, 2006, or 938 days, against his state sentence imposed on November 7, 2003. (Id. at 25.)

After it assumed federal custody of Powell on March 13, 2006, the BOP calculated his federal sentence. Powell received credit toward his federal sentence for time spent in the primary custody of federal authorities from June 23, 2003 (the date he was arrested by federal authorities on federal bank fraud charges), to August 19, 2003 (the date he was placed in the custody of New Jersey authorities). (Id. at 30.) Based on that calculation, Powell is currently scheduled for release from BOP custody, via good time conduct release, on February 8, 2010. (Id.)

Powell filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on September 21, 2007 (Doc. No. 1), challenging the federal sentence calculation. On November 1, 2007, an order to show cause was issued, directing the respondent to reply to Powell's petition. (Doc. No. 4.) Respondent has filed his response. (Doc. No. 9.) Powell has not filed a reply to the response, and the time for doing so has passed. (See Doc. No. 4.) Consequently, the matter is now ripe for disposition.

II. DISCUSSION

A petition for writ of habeas corpus under § 2241 is the proper vehicle for relief "where petitioner challenges the effect of events 'subsequent' to his sentence," Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir. 1976), and where he challenges the execution of his sentence rather than its validity,seeUnited States v. Addonizio, 442 U.S. 178, 185-88 (1979); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). Thus, Powell has properly invoked ยง 2241 to challenge the determination of sentencing credit ...


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