The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Petitioner James A. Stover ("Petitioner" or "Stover"), an inmate confined at the Federal Correctional Institution- Schuylkill ("FCI Schuylkill") in Minersville, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. Stover claims that the Federal Bureau of Prisons ("BOP") failed to provide twenty-five (25) months of credit toward his federal sentence in accordance with the sentencing judge's intent.
Service of the Petition was directed by Order dated June 29, 2010. (Doc. 6.) A Response to the Petition was filed in accordance with our Order on July 20, 2010. (Doc. 7.) Respondent asserts that the transfer of this case to the Court in which Stover was sentenced, the United States District Court for the Northern District of Ohio, is appropriate in order for that Court to clarify whether it intended for Stover's federal sentence to run concurrent with his state sentence. Although Stover was advised of his opportunity to file a reply brief within fourteen (14) days of receipt of Respondent's filings (see Doc. 6 ¶ 4), he has not filed a reply brief. Therefore, the Petition is ripe for disposition. For the reasons set forth below, we will direct that this case be transferred to the United States District Court for the Northern District of Ohio.
On January 23, 2007, Stover was arrested by Ohio authorities on charges of breaking and entering, unlawful transaction in weapons, aggravated possession of drugs, weapons under disability, and trafficking in marijuana. (Doc. 7-2 at 4, Roush Decl., ¶ 5.) He was released on bond on January 24, 2007. (Id.)
On January 30, 2007, Stover again was arrested by local authorities and then released on bond on February 1, 2007. (Id. ¶ 6.) He was arrested by local authorities again on February 12, 2007, after which he remained in state custody. (Id.)
On February 22, 2007, Stover temporarily was borrowed from state custody via a federal writ and transferred to federal custody to answer charges in the United States District Court for the Northern District of Ohio. (Id. ¶ 7.) He was returned to state custody the same day. (Id.) On May 15, 2007, he again was borrowed from state custody pursuant to a federal writ. (Id. at 5 ¶ 8.)
On October 15, 2007, Stover was sentenced by the United States District Court for the Northern District of Ohio to a term of imprisonment of eighty-five (85) months for his conviction of felon in possession of a firearm and theft of firearms from a licensed dealer, in violation of 18 U.S.C. §§ 922(g)(1), 922(u), and 924(i)(1). (Id. ¶ 9; Doc. 7-2 at 15-20, Judgment in a Criminal Case.)
On October 17, 2007, Stover was returned to the primary custody of Ohio state authorities. (Doc. 7-2 at 5 ¶ 10.) On November 5, 2007, Stover was sentenced by the Summit County Court of Common Pleas to a term of imprisonment of two (2) years for aggravated possession of drugs. (Id. ¶ 11.) The state court ordered the sentence to run concurrently with Stover's federal sentence and dismissed the remaining counts. (Id.) Stover was awarded 265 days of jail credit by the State of Ohio, which resulted in an expected release date of February 15, 2009. (Id.)
Stover remained in primary state custody until February 13, 2009, at which time he was released from his Ohio state sentence and taken into custody by federal authorities to begin serving his federal sentence. (Id. at 6 ¶ 12.) His eighty-five (85) month federal sentence has been computed as commencing on February 13, 2009, the date he was released from his Ohio state sentence and taken into federal custody. (Id. ¶ 13; Doc. 7-2 at 29, Sentence Monitoring Computation Data.) Stover received six (6) days of prior custody credit for the time periods between January 23-24, 2007, January 30-February 1, 2007, and February 22, 2007, because these time periods were not credited to his state sentence. (Id.) Stover's projected release date is April 8, 2015 via good conduct time release. (Id.)
The BOP has reviewed Stover for a retroactive designation, which, if granted, would result in his federal sentence running concurrently with his state sentence. (Doc. 7-2 at 6 ¶ 14.) However, Stover's federal Judgment is silent as to whether the federal sentence should run consecutively to or concurrently with the state sentence that had not yet been imposed at the time of its entry. (Id.; Doc. 7-2 at 15-20, Judgment in a Criminal Case.) Pursuant to 18 U.S.C. § 3584(a), "multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." (Doc. 7-2 at 6 ¶ 14.) In sentencing Stover for aggravated possession of drugs, the Ohio state court specified that, "The imposed sentence is to be served concurrently with the Defendant's federal sentence for a total of 7 years." (Doc. 2-3, Excerpt from State Judgment.)
In the process of reviewing Stover for retroactive designation, on August 13, 2009, the BOP sent a letter to the federal sentencing judge, the Honorable Peter C. Economus, to inquire as to the court's position on a retroactive designation. (Doc. 7-2 at 32-33, 8/13/09 Letter.) The ...