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Daryl Savage v. Warden Donna Zickefoose

May 31, 2011

DARYL SAVAGE, PETITIONER,
v.
WARDEN DONNA ZICKEFOOSE, RESPONDENT.



The opinion of the court was delivered by: Robert B. Kugler United States District Judge

MEMORANDUM OPINION AND ORDER

It appearing that:

1. Petitioner executed his Petition asserting jurisdiction under 28 U.S.C. § 2241. See Docket Entry No. 1.

2. This Court dismissed the Petition for lack of jurisdiction, explaining to Petitioner that, since Petitioner's application was challenging the sentence imposed upon him by his federal court, which was the United States District Court for the District of Maryland ("Sentencing Court"), a § 2255 motion was the presumptive means to challenge Petitioner's sentence, and Petitioner did not assert the circumstances falling within the narrow exception to that rule, as defined in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). See Docket Entry No. 2. In other words, the Court detailed to Petitioner, the best it could, that this Court was without jurisdiction to "second guess," "vacate," "remand" or otherwise alter Petitioner's imposed federal sentence, since that power was reserved solely in the Sentencing Court or the courts having the power of appellate review over the Sentencing Court. See id. (explaining to Petitioner that, while this Court expressed no opinion about procedural/substantive validity of Petitioner's § 2255 challenges, no statement made by this Court could or did affect Petitioner's ability to seek § 2255 review).

3. The Court, therefore, directed the Clerk to terminate this matter. In response to the Court's order dismissing his Petition, Petitioner filed a motion ("Motion") seeking vacatur of the Court's order. See Docket Entry No. 4. This Court construes the Motion as a motion for reconsideration of the Court's prior ruling.

4. Petitioner's Motion consists of two parts: (a) the motion itself; and (b) attached exhibits. The Motion part: (a) expresses Petitioner's opinion that the Sentencing Court erred by entering Petitioner's federal sentence without a clarification whether that sentence should be served concurrently or consecutively with the state sentence, which Petitioner was serving at the time when his federal criminal proceedings took place; and (b) states Petitioner's request to vacate the federal sentence imposed by the Sentencing Court (and impose a federal sentence running in retroactive concurrence with Petitioner's now-expired state sentence) or to direct the Sentencing Court to so re-sentence Petitioner.

See Docket Entry No. 4.

5. The exhibits attached to the Motion indicate that, in January 2005 (i.e., at the time when Petitioner was still serving his now-expired state sentence and was facing being released from state custody into federal custody in order to serve his federal sentence), Petitioner wrote to the Sentencing Court, seemingly requesting adjustment of his federal sentence so it would run in retroactive concurrence with the state sentence Petitioner was then completing. See Docket Entry No. 4-1, at 5.

6. Upon receipt of Petitioner's aforesaid letter, the Sentencing Court wrote a letter to the attorney ("Defense Attorney") who represented Petitioner during the criminal proceedings before the Sentencing Court. See id. For the reasons not entirely clear to this Court, the Sentencing Court instructed the Defense Attorney to answer to Petitioner, with copying the Defense Attorney's answer to the Sentencing Court's Chambers.*fn1

7. The Defense Attorney, apparently, responded to the Sentencing Court's letter. See Docket Entry No. 4-1, at 6-7. The legal rationale of the Defense Attorney's response escapes this Court, since the Defense Attorney advised Petitioner and the Sentencing Court that, in the Defense Attorney's opinion:

a. Petitioner should be entitled to a "credit" against his federal sentence for the period running from "at least" the time when Petitioner made his "appearance" in the federal criminal proceedings before the Sentencing Court and until Petitioner's entry into federal custody;

b. because the state criminal proceedings (stemming from the same transaction that underlain the federal criminal proceedings held before the Sentencing Court) were dropped in light of the federal criminal charges,*fn2 Petitioner should be entitled to an even larger "credit,"

i.e., the credit for the period running from Petitioner's arrest on the federal charges and until Petitioner's entry into federal custody;

c. the Bureau of Prisons ("BOP") has the power to grant Petitioner either one of these two "credits" and ...


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