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Podhorn v. Grondolsky

August 4, 2009

PAUL E. PODHORN, PETITIONER,
v.
J. GRONDOLSKY, RESPONDENT.



The opinion of the court was delivered by: Simandle, District Judge

MEMORANDUM OPINION

1. On May 27, 2009, the Clerk received a § 2241 petition from Paul E. Podhorn ("Petitioner"). See Podhorn v. Grondolsky, 09-2531 (JBS), Docket Entry No. 1. The petition raised numerous Bivens challenges, speculative habeas claims and stated demands for release from confinement on the grounds of Petitioner's belief that he was entitled to clemency. See id.

2. On June 12, 2009, this Court issued an order ("June Order") in Podhorn v. Grondolsky, 09-2531, dismissing the petition; the order was accompanied by a detailed opinion ("June Opinion"). Specifically, in its June Opinion, the Court explained to Petitioner that Petitioner's Bivens challenges could be raised only in a civil complaint. The Court also explained to Petitioner that Petitioner's Bivens challenges are already raised by Petitioner in another civil action, based on the civil complaint pending before Judge Hillman. In addition, the Court clarified to Petitioner that Petitioner could not obtain clemency by raising habeas challenges. Finally, the Court explained to Petitioner the invalidity of his speculative habeas claims and detailed to him the process of administrative exhaustion.

3. On June 23, 2009, the Clerk docketed in Podhorn v. Grondolsky, 09-2531, an order entered in Podhorn v. Grondolsky, 09-1210 (RMB), where Judge Bumb traced procedural and substantive developments in all then-existing Petitioner's actions in this District, including Podhorn v. Grondolsky, 09-2531.*fn1

4. On June 30, 2009, the Clerk docketed Petitioner's original motion for reconsideration of this Court's June Order (issued by this Court in Podhorn v. Grondolsky, 09-2531 (JBS)). On July 8, 2009, this Court issued an order in Podhorn v. Grondolsky, 09-2531, which denied Petitioner's original motion for reconsideration on the grounds that the motion either reiterated Petitioner's challenges already disposed of in this Court's June Order and June Opinion or outlined Petitioner's emotions irrelevant to the substance of his claims. In the Court pointed out to Petitioner that Petitioner's assertions as to the issue of administrative exhaustion were without merit.

5. However, the Court also stated as follows:

[I]n the event Petitioner: (a) obtains a formal response from his warden indicating that Petitioner should not be released in the nearest future, but, at the same time, (b) Petitioner is of opinion that the sentence imposed upon him is about to expire in the nearest future, Petitioner may be excused from further exhaustion of this claim in light of potential exigency of such circumstances, i.e., in light of the possibility that Petitioner might be held in confinement in excess of the sentenced imposed upon him.

Id. at 3.

6. On July 16, 2009, the Clerk docketed Petitioner's second motion for re-reconsideration in Podhorn v. Grondolsky, 09-2531 (JBS). That second motion: (a) asserted that Petitioner was being denied transfer to community correctional center ("CCC"); (b) alleged that Petitioner's release date should be August 5, 2009, rather than a later date of which Petitioner had been, apparently, informed; and (c) concedes that Petitioner raised these challenges only with the warden at his place of confinement. This second motion also asserted that exhaustion with the Regional and Central Offices of the Bureau of Prisons ("BOP") would be futile, and sought excuse from the exhaustion requirement on the grounds that the warden did not respond to Petitioner's grievance. In addition, the second motion recited Petitioner's Bivens challenges.

7. On July 20, 2009, this Court issued an order addressing Petitioner's second motion for reconsideration. See Instant Matter, Docket Entry No. 2 (also docketed in issued by this Court in Podhorn v. Grondolsky, 09-2531 (JBS)). In that decision, the Court explained to Petitioner, again, that Petitioner's Bivens challenges cannot be litigated in a habeas action, and that his Bivens challenges are already pending before Judge Hillman in Podhorn v. Grondolsky, 09-2611 (NLH), i.e., in the matter, which is in administrative termination due to Petitioner's failure to prepay his filing fee or to submit his in forma pauperis application, and which Petitioner could reopen in the event he duly prepaid his filing fee or applied for in forma pauperis status. In addition, the Court explained to Petitioner that his habeas challenges raised in the second motion, namely, challenges to non-transfer to a CCC and to allegedly wrongful calculation of Petitioner's sentence, were qualitatively different from Petitioner's original challenges raised in Podhorn v. Grondolsky, 09-2531 (JBS), i.e., from Petitioner's requests for clemency release and his speculative habeas claims. Thus, this Court concluded that Petitioner's habeas challenges raised in his second motion could not be entertained in Podhorn v. Grondolsky, 09-2531 (JBS). Moreover, the Court held that the fact that Petitioner did not receive a response from his warden could not render the exhaustion requirement futile. However, in light of Petitioner's allegations that his correct release date should be August 5, 2009 (i.e., that he should be released in about two weeks from the date of entry of the Court's order as to Petitioner's second motion for reconsideration), this Court found that Petitioner's release-date-related challenges and Second-Chance-Act-related challenges were sufficiently exigent to excuse the exhaustion requirement. The Court, therefore, construed Petitioner's second motion for reconsideration as a new and separate habeas petition, initiated the instant habeas matter on the grounds of this second-motion-transformed-into-petition, and granted Petitioner emergent in forma pauperis status in order to entertain these new challenges on expedited basis. Moreover, the Court granted Respondent only ten days from the date of entry of the Court's order to file Respondent's answer to Petitioner's duration-of-confinement and Second-Chance-Act challenges. See Instant Matter, Docket Entry No. 2. The Court docketed the Court's order on July 22, 2009. See id.

8. On July 31, 2009, Respondent filed his response.*fn2 Composed of a memorandum answer and two sets of declarations, each accompanied by corresponding sets of exhibits, the substance of the response could be summarized as follows:

a. Respondent maintains that Petitioner's challenges to the duration of his confinement are without merit since the period equal to Petitioner's sentence (i.e., the period of incarceration to which Petitioner was re-sentenced) reduced by his prior custody credit, and further reduced by the particular "good conduct" credit applicable to Petitioner, yields December 16, 2009, as Petitioner's projected release date. Respondent's argument and detailed calculation demonstrate that Petitioner's mode of calculation is erroneous because (i) Petitioner initially utilizes, without any legal basis, a wrong algorithm to calculate the period of the "good conduct" credit applicable to the prison term to which Petitioner was re-sentenced; and, then, (ii) Petitioner amplifies the error in his calculation by utilizing the "good conduct" period without factoring in the reductions of this "good conduct" credit ensuing from Petitioner's disciplinary violations.*fn3 See Instant Matter, Docket Entry No. 6, at 9-12 (setting forth the calculation mode used by the BOP, the figures factored in the BOP's algorithm, the legal basis for such calculation and the declaration and exhibits upon which Respondent relies to determine the applicable figures).

b. Respondent also maintains that Petitioner's challenges to the BOP's alleged failure to consider him for transfer to a CCC are equally without merit. According to the evidence produced by Respondent, the chain of events was as follows: (i) Petitioner, being initially sentenced by the Southern District of Illinois to 87 months of imprisonment for various offenses related to sale of stolen fireams and sale of firearms without maintaining proper record, appealed his sentence to the United States Court of Appeals for the Seventh Circuit; (ii) upon the Seventh Circuit's finding that Petitioner's sentence was unduly enhanced, his case was remanded to the Southern District of Illinois, causing the district court to remove the enhancement, which resulted in reduction of Petitioner's sentence from 87 to 70 months; (iii) since Petitioner became eligible for consideration for CCC placement on the date when his sentence was reduced to 70 months, the BOP was willing to consider him for such placement immediately; (iv) however, when the Southern District of Illinois reduced Petitioner's sentence to 70 months, Petitioner had his request (seeking to change his supervised release from the Eastern District of Illinois to the Eastern District of Missouri) pending with probation officials and, thus, pursuant to BOP policy, the fact of Petitioner's request halted the BOP's consideration of Petitioner for CCC placement until Petitioner's relocation to Missouri was confirmed; (v) on June 17, 2009, that is, when Petitioner's relocation to Missouri was rejected by probation officials (on the grounds that Petitioner's wife informed probation officials that she was relocating to the part of Florida corresponding to the Southern District of Florida), Petitioner became eligible, under the BOP policy, for consideration for CCC placement, but -- just nine days later, i.e., on June 26, 2009 -- Petitioner re-halted the process, again, by filing a request seeking transfer of his supervised release to the Southern District of Florida;*fn4 (vi) at the instant juncture, the BOP is yet to get any response from the Southern District of Florida probation officials and, thus, the process of the BOP consideration of Petitioner for CCC placement is still halted. See id. at 7-9, 12-18.

9. This Court agrees with Respondent's calculation of Petitioner's sentence. The evidentiary, legal and mathematical bases of Respondent's calculation are well set forth in Respondent's reply, see Docket Entries Nos. 6 and 6-2, No purpose is served to repeat here what has already been stated with utmost clarity. The Court, ...


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