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Turnage v. United States Attorney General

March 9, 2009

TONY TURNAGE, PETITIONER,
v.
UNITED STATES ATTORNEY GENERAL, ET AL., RESPONDENTS



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

(Judge Rambo)

MEMORANDUM

Before the court is an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed by Petitioner Tony Turnage ("Turnage"), an inmate formerly incarcerated at the Federal Correctional Institution at Schuylkill in Minersville, Pennsylvania ("FCI-Schuylkill").*fn1 Turnage is challenging the Bureau of Prisons ("BOP") and United States Parole Commission's ("Parole Commission") calculation of his federal sentence. In addition, Turnage alleges that he was illegally arrested in 2004 and that the Parole Commission conducted an illegal revocation hearing. For the reasons set forth below, the amended petition will be denied. I. Background

On December 3, 1987, Turnage was sentenced in the United States District Court for the District of Maryland to two fifteen (15) year terms of imprisonment for robbery of a savings and loan and aiding and abetting, see 18 U.S.C. §§ 2113(a)(g) & 2, and larceny of a savings and loan and aiding and abetting, see 18 U.S.C. §§ 2113(b)(g) & 2. (See Doc. 10-2 at 41.)*fn2 The court directed that, under the provisions of 18 U.S.C. § 4205(b)(1), Turnage would be eligible for parole at the expiration of three (3) years. (Id. at 43.)

The BOP merged the two 15-year terms for sentencing purposes into a single, aggregate term, commencing on the date it was imposed, December 3, 1987, and running continuously since that date. (Id. at 45.) Turnage also received ninety-nine (99) days of jail credit toward his federal sentence, resulting in a full term expiration date of August 25, 2002. (Id. at 47.) Further, the BOP determined that Turnage was eligible for parole on August 25, 1990, or three years from the commencement of his sentence on December 3, 1987, less the 99 days of jail credit. (Id.)

In a Notice of Action dated September 30, 1993, the Parole Commission directed that Turnage's parole effective date be set at December 22, 1993. (Id. at 49.) Turnage was released on parole on that date, with 3,168 days remaining to his full term date of August 25, 2002. (Id. at 47.)

After he was paroled from his federal sentence, Turnage committed several state offenses for which he was imprisoned in a state institution from July 22, 1994 to April 4, 1995 (for an assault and battery conviction), and from June 25, 1996 to October 18, 1997 (for a burglary conviction). (Id. at 56, 62.) As a result, on April 9, 1998, the Parole Commission issued a parole violator warrant charging Turnage with violations of the conditions of his parole. (Id. at 51.) The United States Marshals Service arrested Turnage on that warrant on May 7, 1998. (Id. at 53.)

After conducting a parole revocation hearing in October 1998, on December 8, 1998, the Parole Commission issued a Notice of Action ordering the following: "Revoke parole. None of the time spent on parole shall be credited. Continue to a presumptive parole after the service of 60 months on 02-01-2002." (Id. at 56.) Consequently, the BOP recalculated Turnage's sentence by beginning the computation on May 7, 1998 (the date the warrant was executed) and adding the 3,168 days remaining on his federal sentence. (Id. at 60.) This computation resulted in a full term date of January 7, 2007. (Id.) Further, Turnage was credited with the time he spent in state custody from July 22, 1994 to April 4, 1995, and from June 25, 1996 to October 18, 1997. (Id. at 62.) Accordingly, the street time he spent on parole from December 22, 1993 (date of federal parole) to July 21, 1994, from April 4, 1995 (first release from state custody) to June 25, 1996, and from October 18, 1997 (second release from state custody) to May 7, 1998 (arrest on federal parole violator warrant) was forfeited. (Id.) The National Appeals Board affirmed these orders by Notice of Action on Appeal dated March 17, 1999, and modified the presumptive parole date after 60 months from February 1, 2002, as originally ordered, to May 7, 2001. (Id.)

In a Notice of Action dated November 15, 2000, the Parole Commission granted a parole effective date of May 7, 2001. (Id. at 64.) However, in a subsequent Notice of Action dated June 27, 2001, the Parole Commission retarded the parole effective date of May 7, 2001 by ninety-one (91) days to August 6, 2001, due to a violation by Turnage of the rules of FCI-Schuylkill. (Id. at 66.)

Turnage was released on parole on August 6, 2001, with 1,980 days remaining to his full term date of January 7, 2007. (Id. at 60.) However, on September 17, 2004, the Parole Commission issued another parole violator warrant charging Turnage with violations of the conditions of his parole. (Id. at 68.) The United States Marshals Service, accompanied by a Maryland Trooper, arrested Turnage on December 3, 2004 on the parole violator warrant and state charges of resisting arrest. (Id. at 78.) Turnage was taken into state custody at that time on the resisting arrest charges, and as a result the parole violator warrant was lodged with state authorities as a detainer. (Id. at 78, 104.) On March 23, 2005, the state charges were nolle prossed by the Baltimore City Circuit Court, and Turnage was taken into federal custody. (Id.) Thus, the parole violator warrant was not executed until March 24, 2005. (Id. at 69.)

The Parole Commission conducted a parole revocation hearing on July 19, 2005. (Id. at 107.) Prior to that date, the Parole Commission had granted Turnage two continuances from hearings scheduled in May and June 2005. (Id.) Turnage requested a third continuance before the July hearing date, but the Parole Commission denied his request. (Id.) When the hearing examiner called Turnage and his counsel into the hearing on July 19, 2005, Turnage fired his counsel and requested another continuance. (Id.) The hearing examiner advised Turnage that she did not have the authority to overturn a Parole Commission decision on the third continuance, and as a result, the hearing was to be conducted on that date. (Id. at 107-08.) Turnage then stated that he would not participate in the hearing. (Id. at 108.) The hearing examiner informed him that she would go forward despite his absence and make findings of fact if the record supported such findings. (Id.) Turnage then left the hearing room, and his counsel indicated that he would not participate in the hearing because Turnage had fired him. (Id.)

As a result of the hearing, on August 9, 2005, the Parole Commission issued a Notice of Action ordering the following: "Revoke parole. None of the time spent on parole shall be credited. Continue to a presumptive re-parole November 24, 2007 after service of 32 months." (Id. at 71.) Consequently, the BOP recalculated Turnage's sentence from March 24, 2005, the date the parole violator warrant was executed. (Id. at 75.) This computation resulted in a full term date of May 5, 2010. (Id.)

When the Parole Commission was informed that the state charges of resisting arrest had been nolle prossed, it issued a Notice of Action crediting Turnage with the 111 days he spent in state custody from December 3, 2004 to March 23, 2005, advanced the presumptive parole date, and granted a parole effective date of July 1, 2007 after service of 32 months. (Id. at 80.)

On June 29, 2007, Turnage was released on parole with 1,039 days remaining to his full term date of May 5, 2010 plus two (2) public law days for release on the weekend. (Id. at 75.)

Turnage initially filed his petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2241 in the Eastern District of Pennsylvania on November 14, 2006, while he was still incarcerated at FCI-Schuylkill. (See Doc. 1.) The Eastern District transferred the case to this court on July 31, 2007, (see id.), and by order dated September 27, 2007, the court directed Turnage to file an amended petition, (see Doc. 3). Turnage filed his amended habeas petition on November 6, 2007. (Doc. 6.) On December 20, 2007, an order ...


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