The opinion of the court was delivered by: Judge Caputo
Spencer Bowens, an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg), filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1 Named as Respondent is the United States of America.*fn2 Service of the petition was previously ordered.
After being granted an enlargement of time, Respondent filed an answer addressing Petitioner's allegations. See Doc. 7. The Petitioner thereafter submitted a timely traverse. Bowens subsequently provided this Court with additional information. See Doc. 11.
Consequently, this matter is ripe for consideration.
Following a jury trial in the United States District Court for the Eastern District of Virginia, Petitioner was convicted on September 16, 1998 of conspiracy to possess and distribute crack cocaine, powder cocaine, and heroin, as well as two counts of harboring a fugitive from arrest, and obstruction of justice.
During a sentencing hearing, Petitioner objected to the Pre-Sentence Report (PSR) on the basis that it indicated that he had two (2) prior New York State robbery convictions.*fn3
According to a review of the record, including the transcript from the sentencing proceeding, Petitioner argued that because the aforementioned two state robbery charges were: consolidated by a superceding indictment, the subject of a single sentencing proceeding, and resulted in the imposition of concurrent sentences, the PSR should have reflected that he only had one prior robbery conviction.*fn4 The sentencing court rejected Bowens' argument concluding that the PSR correctly listed the defendant as having two robbery convictions because the robberies were two separate offenses punctuated "by an intervening arrest" and therefore not related for purposes of the Federal Sentencing Guidelines. See Doc. 2, Exhibit L, p. 28.
On January 8, 1999, Bowens was sentenced by the Eastern District of Virginia to serve a term of life imprisonment. By decision dated August 18, 2000, the United States Court of Appeals for the Fourth Circuit vacated Petitioner's two convictions for harboring a fugitive but affirmed his remaining convictions and sentence. See United States v. Bowens, 224 F.3d 302, 304 (4th Cir. 2000).
In a August 6, 2009 decision, the Eastern District of Virginia denied Petitioner's motion to correct a clerical error pursuant to Federal Rule of Civil Procedure 36. See Doc. 2 at Exhibit M. Bowens' motion again claimed entitlement to relief on the basis that his two (2) New York state robbery charges were consolidated into a single conviction. The sentencing court characterized Petitioner's motion as being a challenge to the calculation of his criminal history score under the Federal Sentencing Guidelines for the purpose of obtaining a more favorable custody classification. In denying relief, the sentencing court noted that it had already addressed and dismissed Bowens' argument.*fn5 See id. at p. 3-4.
Petitioner acknowledges that his pending request for habeas corpus relief is not attacking the legality of his federal convictions or sentence. Rather, he describes this action as "challenging the calculation of his criminal history score under the Federal Sentencing Guidelines in order to secure a more favorable custody classification."*fn6 Doc. 2, p. 1. Relying on Sake v. Sharman, 2007 WL 2254529 (W.D. Pa. 2007) and Kitano v. Smith, 2006 WL 42177 *2 (M.D. Pa. 2006), Petitioner asserts that as a result of the false information purportedly contained in his PSR, the Bureau of Prisons (BOP) improperly determined that his public safety factor was within the greatest severity range, a determination which he contends "may adversely affect his custody and or potential early release." *fn7 Id. at p. 2.
Respondent concedes that Bowens has exhausted his administrative remedies and there is no contention that the petition is untimely. However, the Response contends that Petitioner's claims cannot be pursued under § 2241 because he does not challenge the fact or duration of his sentence. See Doc. 7, p. 5. The Respondent additionally argues that Bowens' pending action is deficient since he is attempting "to rehash the same argument" that he previously unsuccessfully raised before the sentencing court. Id. at p. 10.
Federal habeas corpus review under § 2241 "allows a federal prisoner to challenge the 'execution' of his sentence." Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). Habeas corpus review is available "where the deprivation of rights is such that it necessarily impacts the fact or length of detention." Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002). In Suggs v. Bureau of Prisons, 2008 WL 2966740 *4 (D. N.J. July 31, 2008), it was reiterated that in cases where "a ...