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Wasikowski v. Ebbert

November 18, 2010

MICHAEL T. WASIKOWSKI, PETITIONER
v.
WARDEN DAVID J. EBBERT, RESPONDENT.



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Michael T. Wasikowski ("Petitioner" or "Wasikowski"), an inmate presently confined at the Federal Correctional Institution Allenwood Medium ("FCI Allenwood Medium") in White Deer, 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. (Doc. 1.) He challenges the calculation by the Federal Bureau of Prisons ("BOP") of the federal sentence he currently is serving. Specifically, he contends that the BOP failed to credit his current sentence for the period of December 7, 2005, the date on which he was arrested on federal charges, through May 24, 2007, the date on which his federal sentence was imposed. For the reasons set forth below, the Petition will be denied.

I. PROCEDURAL BACKGROUND

Wasikowski filed the instant Petition (Doc. 1) and accompanying Memorandum of Law(Doc. 2) on February 2, 2010. Following his payment of the $5.00 filing fee on March 5, 2010, by Order dated March 18, 2010, we directed service of the Petition on Respondent. (Doc. 6.) On April 8, 2010, Respondent filed a Response (Doc. 7) and supporting Exhibits*fn1 (Doc. 7-2). On April 23, 2010, Petitioner filed a Reply. (Doc. 8.) Accordingly, the Petition is fully briefed and ripe for review.

II. FACTUAL BACKGROUND

On May 27, 2003, the Michigan Department of Corrections released Wasikowski on parole. (Doc. 7-2 at 4, Farrar Decl., ¶ 5.) At the time of his release on parole, Wasikowski was serving a fifteen (15) year state sentence. (Id.)

On September 12, 2005, Wasikowski absconded supervision until he was arrested for state parole violations on December 5, 2005. (Id.) Since December 5, 2005, Wasikowski continually has served what remains of his fifteen (15) year Michigan state term of imprisonment. (See Doc. 7-2 at 8, Michigan DOC letter dated 3/30/2010.) Specifically, he served time in a state facility toward his Michigan state sentence from December 5, 2005 through January 27, 2009, the date of his release on parole, and he will continue to serve time on parole on that sentence until its expiration, which currently is set for January 27, 2011. (See id.)

On December 7, 2005, two (2) days after his arrest by Michigan state authorities for state parole violations, the Bureau of Alcohol Tobacco and Firearms ("ATF") arrested Wasikowski for firearms violations, which became the basis for the instant federal offense. (Id. ¶ 6; Doc. 7-2 at 10-15, Presentence Investigation Report Excerpts.)

The USMS temporarily borrowed Wasikowski from Michigan state custody via federal writs on three (3) occasions. First, on September 21, 2006, Wasikowski was produced in federal court, and was returned to the primary custody of Michigan state authorities on September 27, 2006. (Doc. 7-2 at 4-5, Farrar Decl., ¶ 7; Doc. 7-2 at 17, USMS Individual Custody and Detention Report.)

Next, on December 6, 2006, the USMS borrowed Wasikowski from state custody via a federal writ, and returned him to state custody the next day. (Doc. 7-2 at 5, Farrar Decl., ¶ 8; Doc. 7-2 at 17.)

Lastly, on May 24, 2007, the USMS borrowed Wasikowski from state custody via federal writ for sentencing. (Doc. 7-2 at 5, Farrar Decl., ¶ 9; Doc. 7-2 at 17.) On that date, the United States District Court for the Eastern District of Michigan sentenced Wasikowski to an eighty-three (83) month term of imprisonment after he pled guilty to the offense of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Doc. 7-2 at 5, Farrar Decl., ¶ 9; Doc. 7-2 at 20-26, Judgment in a Criminal Case.) The Court directed that the eighty-three (83) month term of federal imprisonment run concurrent with Wasikowski's undischarged term of imprisonment with the Michigan Department of Corrections. (Doc. 7-2 at 21, Terms of Imprisonment.) On the same day as sentencing, Wasikowski was returned by the USMS to the primary custody of Michigan state authorities. (Doc. 7-2 at 5, Farrar Decl., ¶ 9; Doc. 7-2 at 17, USMS Individual Custody and Detention Report.)

On January 27, 2009, Wasikowski was released by the State of Michigan on parole. (Doc. 7-2 at 5, Farrar Decl., ¶ 10; Doc. 7-2 at 28, Michigan DOC Tracking Information System Profile.) On the same date, he was taken into custody by the USMS to serve his eighty-three (83) month federal sentence. (Doc. 7-2 at 5, Farrar Decl., ¶ 10; Doc. 7-2 at 17, USMS Individual Custody and Detention Report.)

The BOP has computed Wasikowski's eighty-three (83) month sentence as commencing on May 24, 2007, the date on which he ...


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