Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jerra Mccrea Lyles v. D. Zickefoose

December 15, 2010

JERRA MCCREA LYLES,
PETITIONER,
v.
D. ZICKEFOOSE, ETC., ET AL., : RESPONDENTS.



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

NOT FOR PUBLICATION

OPINION

Jerra McCrea Lyles ("Petitioner"), a prisoner incarcerated at FCI Fort Dix, filed an Amended Petition for a Writ of Habeas Corpus (Docket Entry #15), pursuant to 28 U.S.C. § 2241, against the Warden of FCI Fort Dix and the Administrator of the Central Office of the Bureau of Prisons ("BOP"). Petitioner challenges a final decision of the BOP dated February 3, 2009 (Docket Entry #15-1). Respondents filed an Answer arguing that the Amended Petition should be dismissed on the merits, together with the declarations of Tara Moran and Patricia Kitka, and several exhibits. Petitioner filed: (1) a motion (Docket Entry 21), which Respondents do not oppose, to amend the caption to reflect that Donna Zickefoose is respondent, Warden of FCI Fort Dix, and

(2) a motion (Docket Entry Nos. 20, 21-1) to strike the Answer with prejudice and enter judgment in favor of Petitioner. Respondents filed a Response opposing Petitioner's motion to strike, and Petitioner filed a Reply to Respondents' opposition. For the following reasons, this Court will grant Petitioner's motion to amend the caption, deny Petitioner's motion to strike the Answer and to enter judgment for Petitioner, and dismiss the Petition with prejudice because Petitioner has not shown that his custody violates the Constitution, laws or treaties of the United States, see 28 U.S.C. § 2241.

I. BACKGROUND

This Court will take judicial notice of the docket in this and prior federal proceedings regarding Petitioner, see McTernan v. City of York, 577 F. 3d 521, 526 (3d Cir. 2009), and will not reiterate the lengthy factual background which begins with Petitioner's 1976 federal conviction. On November 5, 1993, Petitioner was mandatorily released from custody of the BOP on an aggregate 30-year federal prison term imposed on his 1976 conviction in the United States District Court for the District of Maryland on a multi-count indictment, see United States v. Lyles, Crim. No. 76-0083 judgment (D. Md. July 23, 1976) (Docket Entry #19-4, p. 2). See also Lyles v. Samuels, C.A. No. 07-1609 slip op. (3d Cir. Dec. 7, 2007); (Docket Entry Nos. 15, p. 4 & 19-4, p. 11. ).*fn1 Petitioner began service of the 40-year special parole term on March 3, 1998, when the Parole Commission issued a certificate of early termination discharging him from parole to begin service of the 40-year special parole term. (Docket Entry Nos. 15, p. 4 & 19-4, p. 14); see also Lyles, C.A. 07-1609 slip op. at 2 (3d Cir. Dec. 7, 2007).

In August 2000, based on Petitioner's guilty plea to a new federal crime (unlawful use of a communication facility, in violation of 21 U.S.C. § 843(b)), the United States District Court for the Southern District of California sentenced Petitioner to a 30-month term of imprisonment, and Petitioner voluntarily surrendered on October 30, 2000. (Docket Entry Nos. 15, p. 5 & 19-4, p. 18.)

On April 12, 2001, the United States District Court for the District of Maryland rejected Petitioner's claim on the merits (presented in a motion to reconsider the January 31, 2001, order dismissing Petitioner's § 2255 motion as successive) that he is serving an illegal sentence because his sentence of imprisonment has been served in its totality. See Lyles v. United States, Civ. No. 01-0224 slip op. (D. Md. Apr. 12, 2001).

There is no dispute that on May 21, 2002, when Petitioner was released on the 30-month Southern District of California sentence, he was taken into custody pursuant to execution of a parole violator warrant issued on April 12, 2001, by the Parole Commission. See U. S. Parole Commission Warrant dated Apr. 12, 2001 (Docket Entry #19-4, p. 26); Sentence Monitoring Computation Data as of Mar. 10, 2010 (Docket Entry #19-4, p. 40.) On August 19, 2002, the Parole Commission revoked Petitioner's Special Parole, determined that none of the time spent on Special Parole shall be credited to the 40-year special parole term, and set a presumptive parole date of January 8, 2011, after service of a 130-month term of imprisonment. (Docket Entry Nos. 15, p. 5 & 19-4, p. 35.) Petitioner administratively appealed the revocation decision, and on October 17, 2002, the National Appeals Board affirmed. (Docket Entry #15, p. 5.)

Between March 18, 2002, and May 8, 2006, Petitioner filed three § 2241 petitions in this Court. (Docket Entry #3, pp. 3-4.) Most recently, on December 7, 2007, the Third Circuit affirmed Judge Kugler's Order denying habeas relief and determined that Petitioner's current 40-year sentence is authorized by 21 U.S.C. § 841(c) (repealed):

Lyles's current imprisonment based on the revocation of his 40-year special parole term is an imprisonment contemplated by 21 U.S.C. § 841(c) (repealed), in addition to his statutory 15-year term under § 841(b)(1)(A), and does not violate due process or exceed any statutory maximum sentence . . . . Further, Lyles's contention that his special parole term "would [have] to be commenced" before his federal 15-year term expired is without merit. The United States Parole Commission appropriately aggregated Lyles's multiple sentences into a single 30-year sentence, and ordered that Lyles's special parole term would begin to run after he was discharged from mandatory release supervision following his release from the aggregate 30-year prison term . . . . Lyles v. Samuels, C.A. No. 07-1609 slip op. at pp. 2-3 (3d Cir. Dec. 7, 2007).

Petitioner asserts that on February 18, 2008, BOP officials prepared a Sentence Monitoring Computation Data sheet indicating that a new 40-year sentence had commenced on May 21, 2002. See Am. Pet. (Docket Entry #15, p. 6). On August 3, 2008, Petitioner filed a request for administrative remedy, requesting "the specific federal charge statute which a new 40-year Sentence is imposed as indicated on the sentence monitoring computation data . . . dated 7/17/2008." (Docket Entry #19-2. p. 28.) On September 11, 2008, the then warden granted Petitioner's administrative remedy and clarified that Petitioner is serving a term of 40 years as a result of the revocation of his special parole term imposed on July 23, 1976. (Docket Entry #19-2, p. 30.) Petitioner appealed to the Regional Director on the grounds that, although the sentencing court vacated the judgment on Count One in 1991 and ordered on January 4, 2002, that the sentence had commenced on July 23, 1976, the BOP failed to delete reference to Count One from the Sentence Monitoring Computation data sheet until December 26, 2007. (Docket Entry #19-2, pp. 32-33.) On October 22, 2008, D. Scott Dodrill, Regional Director, denied the appeal as follows:

A review of our records revealed that you were sentenced on July 23, 1976, by the U.S. District Court for the District of Maryland . . . . On March 17, 1978, the court vacated Count 1 with the proviso it would be reinstated if Count 30 were overturned. On December 12, 1980, the court vacated the special parole term on Count 1. Your aggregate federal sentence had been computed to be 30 years with a 40 year special parole term to follow. On November 5, 1993, you were mandatorily released from your 30 years term and you were under supervision as if on parole. On March 3, 1998, the U.S. Parole Commission ordered an early discharge from your mandatory release supervision, which enabled you to begin the 40 year special parole term.

On April 12, 2001, the Parole Commission issued a special parole term violator warrant. The warrant was executed on May 21, 2002, the day you completed a 30-month sentence imposed on August 18, 2000, by the U.S. District Court for the Southern District of California, for Unlawful Use of a Communication Facility. After a revocation hearing the Parole Commission issued a Notice of Action dated August 19, 2002, which revoked special parole, ordered none of the time spent on parole be credited, and continue[d] for a presumptive parole after service of 110 [sic] months (January 8, 2011). Since you received credit for no time under special parole supervision, your current special parole violation term is correctly computed to be 40 years. Your sentence computation is calculated correctly. Accordingly, your appeal is denied. (Docket Entry 19-2, pp. 34-35.)

Petitioner filed a timely appeal to the BOP's Central Office, contending that the BOP disregarded 21 U.S.C. § 841(c),

28 C.F.R. 523(2)(B), and Program Statement 5880, page 54, and asking "the BOP to show upon what specific federal statute I am being held, and the calculation from such statute." (Docket Entry #19-2, p. 37.) On February 3, 2009, Harrell Watts denied the appeal as follows:

This is in response to your Central Office Administrative Remedy Appeal in which you contend you have served all of your sentences to expiration and the Bureau of Prisons is holding ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.