United States District Court, D. Minnesota
TYRONE E. POWELL II, Petitioner,
L. LARIVA, WARDEN, Respondent.
E. Powell II, 07428-041, 825 N. Christiana, Chicago, Illinois
60651, pro se petitioner.
Samie, Assistant U.S. Attorney, 600 U.S. Courthouse, 300
South Fourth Street, Minneapolis, Minnesota 55415, for
REPORT AND RECOMMENDATION
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
Powell II (“Powell”) challenges the computation
of his sentence by the Federal Bureau of Prisons
(“BOP”). Powell asks the Court to order the BOP
to apply a credit of 25 months and 18 days against his
sentence which he contends was the intent of the sentencing
judge. The Court concludes that the sentence was computed
correctly and therefore denies Powell's petition.
remedy to challenge the BOP's computation of a federal
sentence is a habeas corpus petition filed pursuant to 28
U.S.C. § 2241. Matheny v. Morrison, 307 F.3d
709, 711 (8th Cir. 2002). The petition is properly
filed in the district court in the jurisdiction in which the
petitioner is incarcerated. Id. At the time he filed
this petition, Powell was incarcerated at the Federal Medical
Center in Rochester, Minnesota. Petition ¶ 2, Docket No.
1. He later was moved to a halfway house in Chicago,
Illinois. Powell Letter, Docket No. 12. The parties agree
that Powell has exhausted his administrative remedies.
Petition ¶¶ 7-9, Docket No. 1; Gov't Br. 5,
Docket No. 7.
February 18, 1997, Powell was sentenced in the District of
Minnesota to 87 months imprisonment for conspiracy to
distribute and to possess with intent to distribute cocaine
(Sentence 1). Kelly Decl. Ex. C (judgment in D. Minn.
Criminal No. 4-96-103), Docket No. 8-1. On April 1, 1999
Powell was sentenced in the Northern District of Illinois to
336 months for conspiracy to possess with intent to deliver a
controlled substance (Sentence 2), to run concurrently with
his undischarged 87-month Sentence 1. Id. Ex. B
(judgment in N.D.Ill. Criminal No. 95-cr-72-1). On January
30, 2008 Sentence 2 was reduced to 276 months. Id.
Ex. E (docket entry order in N.D.Ill. Criminal No.
95-cr-72-1). The BOP applied prior custody credit of 210 days
against each sentence. Id. ¶¶ 18A & B
and Ex. A (“jail credit” line item of BOP
computer printout), Docket Nos. 8, 8-1. Powell has finished
serving Sentence 1, which was discharged on November 25, 2002
after application of good conduct time. Id. ¶
18A and Ex. A. Powell's projected release date from
Sentence 2, applying good conduct time, is September 16,
2018. Id. ¶¶ 18B & 19 and Ex. A.
argues that Sentence 2 should be “fully
concurrent” with Sentence 1, in other words, should be
deemed to have commenced on February 18, 1997 - the
commencement date of Sentence 1 - rather than on April 1,
1999, the date that Sentence 2 was actually imposed by the
sentencing court. Powell therefore asserts that the time
period from February 18, 1997 through March 31, 1999 should
be credited against his 276-month Sentence 2, and he asks the
Court to “correct the originally entered sentencing
order by reducing petitioner's sentence 25 months and 18
days.” Powell Br. 3, Docket No. 2. Powell contends that
the sentencing judge did not follow the proper procedure
under U.S. Sentencing Guidelines § 5G1.3 to accomplish
the intent to make Sentence 2 concurrent with Sentence 1.
Id. at 1, 3. He states that the plea agreement
should be enforced and interpreted to mean that Sentence 2 is
fully concurrent with Sentence 1. Powell Reply Br. 2-3,
Docket No. 10. He also argues that the BOP misinterpreted the
judge's sentencing order for Sentence 2 when it
calculated his sentence. Petition ¶ 8-9, Docket No. 1.
Powell's petition and reply brief raise issues regarding
what “concurrent” means, the sentencing
judge's intent, the BOP's calculation of Sentence 2,
and the scope of the issues that are properly before the
Court in this § 2241 habeas petition.
U.S. Sentencing Guidelines § 5G1.3
invokes U.S.S.G. § 5G1.3 to support his argument that he
is entitled to receive credit against Sentence 2 for the
approximately 25 months (from February 18, 1997 to April 1,
1999) he had already served on Sentence 1. A sentencing court
has the authority under § 5G1.3 in certain circumstances
to adjust the federal sentence being imposed to account for
time served on another undischarged term of imprisonment, and
to determine whether the sentence is to be served
concurrently or consecutively. Powell points to the paragraph
in his plea agreement in which the government and Powell
acknowledge the sentencing court's authority to choose a
concurrent, partially concurrent, or consecutive sentence
under § 5G1.3(c) and “the parties agree to
recommend to the court that the sentence for the instant
offense should be imposed to run concurrently to
[Powell's] undischarged term of imprisonment.”
Powell Br. 2 and Appendix B (Plea Agreement 9, para. (i)),
Docket No. 2. Powell contends that the sentencing judge
and/or the BOP failed to achieve the intended “fully
concurrent” sentence. Id. at 1-3.
a request that a sentence be reduced based on § 5G1.3 is
a challenge to the sentence itself, not the BOP's
computation of it. This challenge to the sentence must be
brought under 28 U.S.C. § 2255 in the district of the
sentencing court, not in a § 2241 habeas petition.
See Matheny, 307 F.3d at 711 (challenge to validity
of sentence itself must be brought under § 2255 in
district of the sentencing court); Noble v. Fondren,
Civil No. 08-6259, 2009 WL 4723357, at *7 (D. Minn. Dec. 2,
2009) (an argument that a sentencing court intended to, or