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Cowan v. Ebbert

July 17, 2008

SYLVESTER COWAN, PETITIONER,
v.
WARDEN D. EBBERT, RESPONDENT.



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed by Petitioner Sylvester Cowan ("Cowan"), an inmate currently incarcerated at the Federal Correctional Institution at Allenwood ("FCIAllenwood") in White Deer, Pennsylvania. (Doc. 1.) Cowan is challenging the Bureau of Prisons' ("BOP") calculation of his federal sentence. For the reasons set forth below, the petition will be denied.

I. Background

On March 16, 1999, Cowan was arrested and imprisoned by Ohio state authorities for robbery and vehicle theft. (Doc. 6-2 at 4.) On July 28, 1999, Cowan was sentenced in the Franklin County Court of Common Pleas in Columbus, Ohio, to a term of imprisonment of five (5) years for the robbery count. (Id.)

While Cowan was serving his state sentence, on August 26, 2002, the United States Marshal Service ("USMS") issued a warrant for Cowan's arrest on federal charges for armed and unarmed bank robbery, see 18 U.S.C. § 2113. (Doc. 2 at 13.) On September 13, 2002, Cowan was produced from Ohio state custody pursuant to a federal writ of habeas corpus ad prosequendum for an initial appearance and arraignment in the United States District Court for the Southern District of Ohio. (Id. at 14.) After these proceedings, he was returned to the custody of the State of Ohio.

On December 5, 2002, Cowan again was produced from Ohio state custody pursuant to a federal writ of habeas corpus ad prosequendum, for a pretrial hearing before the Southern District of Ohio. (Id. at 15.) He was returned to the custody of the State of Ohio following this proceeding, but returned to the Southern District of Ohio again on May 2, 2003, pursuant to a federal writ of habeas corpus ad prosequendum, for the pretrial conference. (Id. at 17.) Pursuant to that writ, he was also scheduled to remain in federal custody pending completion of his trial set to begin on May 5, 2003. (Id.)

On the date of his federal trial, Cowan pleaded guilty to five (5) counts of armed and unarmed bank robbery. (Doc. 6-2 at 18.) Thereafter, Cowan was returned to the custody of the State of Ohio. However, on December 10, 2003, Cowan was again produced from Ohio state custody pursuant to a federal writ of habeas corpus ad prosequendum, for sentencing. (Doc. 2 at 18.) On that date, Cowan was sentenced by the Southern District of Ohio to a term of imprisonment of 210 months for the armed and unarmed bank robbery counts. (Doc. 6-2 at 18.) The court ordered this sentence to run concurrent to his 5-year state sentence. (Id. at 19.)

Following sentencing, Cowan was returned to the custody of the State of Ohio to continue serving his state sentence. However, during the periods of time that Cowan was produced from state custody pursuant to the federal writs of habeas corpus ad prosequendum, Ohio authorities still maintained primary custody over Cowan, with federal officials assuming secondary custody.

Cowan was paroled from his state sentence on March 13, 2004, at which time federal authorities assumed primary custody. (Id. at 30.) After assuming federal custody of Cowan, the BOP calculated his 210-month federal sentence as beginning on December 10, 2003, the date he was sentenced in the Southern District of Ohio. (Id.) According to the federal sentence monitoring computation data, Cowan was awarded a total of 135 days of prior custody credit, also known as Willis credits, named after Willis v. United States, 438 F.2d 923 (5th Cir. 1971). (Id.) Specifically, he was credited for the day of his arrest on November 15, 1997, and for the period of March 16, 1999 (the date of his arrest by Ohio authorities), through July 27, 1999 (the day before the state court imposed his 5-year state sentence). (Id.) Cowan does not contest this sentence credit. Furthermore, the BOP set Cowan's projected release date from his federal sentence at October 25, 2018, via good conduct time release. (Id.)

Cowan filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on March 10, 2008, (Doc. 1) alleging that he should be awarded credit for a sixteen (16) month period during which he was in the primary custody of the State of Ohio, but had been taken into secondary federal custody pursuant to the multiple federal writs of habeas corpus ad prosequendum to answer to federal charges of bank robbery. On March 12, 2008, an order to show cause was issued, directing the respondent to respond to Cowan's petition. (Doc. 5.) Responsive and reply briefing have been filed, and 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, see United States v. Addonizio, 442 U.S. 178, 185-88 (1979); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). Thus, Cowan has properly invoked section 2241 to challenge the determination of sentencing credit by the BOP and has done so in the proper district, where he is imprisoned. Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990).

The Attorney General is responsible for computing federal sentences for all offenses committed after November 1, 1987, 18 U.S.C. § 3585; United States v. Wilson, 503 U.S. 329, 331-32 (1992), and the Attorney General has delegated this authority to the Director of the Bureau of Prisons, 28 C.F.R. § 0.96 (1992). Computation of a federal sentence is governed by 18 U.S.C. § 3585, and consists of the following two-step process: (1) a determination of the date on which the federal sentence commences, and (2) consideration of any credit to which petitioner may be entitled. Chambers v. Holland, 920 F. Supp. 618, 621 (M.D. Pa. 1996).

A federal sentence commences "on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention ...


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