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Robert B. Davis v. Paul Schultz

December 21, 2010

ROBERT B. DAVIS,
PETITIONER,
v.
PAUL SCHULTZ, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Renee Marie Bumb United States District Judge

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Petitioner, Robert B. Davis ("Davis"), is a federal inmate, who was confined at the FCI Fairton in Fairton, New Jersey, at the time he filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Davis was transferred to a federal facility in Coleman, Florida, after his petition was filed; therefore, this Court retains jurisdiction over the petition.*fn1

For the reasons set forth below, the Court finds that the petition for habeas relief should be denied.

I. BACKGROUND

Davis filed his initial habeas petition on or about August 12, 2009. He set forth three claims in his petition: (1) denial of his right to grievance procedures, (2) biased treatment, and (3) erroneous computation of his sentence. On December 11, 2009, Davis filed a motion to supplement his habeas petition, namely, to supplement his claim alleging an erroneous computation of his sentence. (Docket entry no. 6).*fn2 He did not address or supplement his claims concerning the denial of grievance procedures and biased treatment. Davis was transferred to the FCI/USP at Coleman, Florida in or about November 2009.

On March 19, 2010, this Court issued an Opinion and Order dismissing without prejudice the first two claims for relief in the petition for lack of jurisdiction because the claims were challenging the conditions of Davis' confinement.*fn3 (See Docket entry nos. 9 and 10). As to the third claim for habeas relief, in which Davis alleges that the Bureau of Prisons ("BOP") erred in computing his sentence by failing to give him 17 months credit for time served in state custody, the Court directed respondent to answer the petition. (Id.).

The Government answered the petition on May 11, 2010. (Docket entry no. 17). Davis filed his traverse or reply to the Government's answer on or about June 18, 2010. (Docket entry no. 20).

The record shows that Davis was convicted in the United States District Court for the Western District of New York on a charge of bank robbery in violation of 18 U.S.C. § 2113(a). On March 26, 2004, the Honorable John Elfin, U.S.D.C., sentenced Davis to a federal prison term of 188 months to be followed by a term of three years supervised release. However, on March 7, 2008, Davis was re-sentenced in the same federal criminal action to 103 months imprisonment with three years of supervised release, pursuant to an amended judgment and conviction issued by Chief Judge Richard Arcara in the United States District Court, Western District of New York. (Respondents' Answer at pg. 3, Declaration of Alan Ray*fn4 ("Ray Decl.") at ¶¶ 5a and 5b, and Exhibits Nos. 3, 4).

Prior to his federal conviction, Davis had been arrested on August 26, 2002, by the Buffalo, New York Police Department on robbery charges in violation of New York state law. Shortly after his arrest, on August 30, 2002, Davis was taken into federal custody temporarily pursuant to a federal writ of habeas corpus ad prosequendum. After Davis' March 26, 2004 sentencing by Judge Elfvin, Davis was returned to state custody on July 14, 2004. On July 28, 2004, the State of New York, Executive Department, Division of Parole, issued a Parole Jail Time Certification crediting Davis for the time he spent in custody from August 26, 2002 to February 11, 2004. 535 days of credit were applied towards his original state court sentence that had been imposed on March 24, 1993. (Ray Declaration at ¶ 6(a)-(f), Exs. 3-6).

The Government contends that the above information formed the basis for Davis' federal sentence computation, which was completed by the BOP in accordance with BOP Program Statement 5880.28, Sentence Computation Manual. The BOP computed Davis' re-sentence based on the 103-month term of imprisonment, which commenced on the date Davis' original federal sentence was imposed, March 26, 2004. The Government contends that Davis has received all prior custody credit beginning on the day after he completed his state sentence (February 12, 2004 through March 25, 2004), for a total of 43 days. Thus, assuming Davis earns the 357 days of good conduct time projected for him, Davis has a projected release date of September 21, 2011. (Ray Declaration,

¶ 7, Ex. 7, and Exs. 2, 3, 4 and 5).

Davis contends that he is being held beyond his "presumptive" release date, alleging that the sentencing court intended to give Davis 17 months credit for time served in state custody. Davis argues that with the 17 months credit and statutory good conduct time, his sentence should have been reduced to seven years. Because Davis has been incarcerated since August 27, 2002, the date of his arrest on the bank robbery charge, Davis asserts that he is serving beyond his term and should be entitled to immediate release.

II. ANALYSIS

The Court recognizes that a pro se pleading is held to less stringent standards than more formal pleadings drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, a pro se habeas petition should be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989). Because Davis is proceeding pro se in his ...


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