Opinion
Case No. CR408-204.
May 12, 2010
ORDER
Terry Lehman has been in and out of this Court for decades. See United States v. Lehman, No. CR486-007, doc. 62 (S.D. Ga. Aug. 26, 1986) (convicted of threatening a juror and mailing threatening communications, in violation of 18 U.S.C. § 1503 and § 876; ten-year sentence to run consecutively to then-pending state sentence); United States v. Lehman, No. CR486-068 (S.D. Ga. Feb. 26, 1987) (three additional, consecutive years for courtroom-assault of CR486-007 prosecutor, in violation of 18 U.S.C. § 111); United States v. Lehman, No. CR408-204 (S.D. Ga. Aug. 14, 2009) (indicted for Threatening A Federal Official in violation of 18 U.S.C. § 115, but it was pled down to a petty offense and thus a 30-day sentence with credit for time served in United States v. Lehman, PO409-106).
Writing from a Bruceton, W.V. federal prison, Lehman has mailed a letter to the undersigned requesting assistance because "[o]n December 15, [2009], the U.S. Parole Comm'n decided to revoke my supervised release and make me do the remainder of my prison sentence." Doc. 56. He says his attorney informs him that counsel cannot appeal "until he gets a 'Notice of Action' from the [Parole] Commission." Id. So, Lehman would like this Court to send him a copy of that Notice.
Letters seeking judicial relief are not welcome. Motions, briefs, etc., get filed; letters get lost. The law places the burden upon litigants, not judges, to create their own record by filing record materials — including legal arguments best presented in a motion or brief — directly with the Clerk of Court. Fed.R.Civ.P. 7(b)(1) ("A request for a court order must be made by written motion."); see In re Unsolicited Letters to Federal Judges, 120 F. Supp. 2d 1073 (S.D. Ga. 2000); see also Ga. Ct. App. R. 27(b) ("Parties are not permitted to file letter briefs nor letter cites").
Given the date of Lehman's crimes and sentences (they are still running because they are consecutive to a state conviction that did not expire until July 14, 2001), he falls under the now-obsolete federal "parole" system, and is thus still in custody under this Court's sentence. Hence, the Court still has jurisdiction over him. Cf. Walker v. Florida, 345 F. App'x 458, 459 (11th Cir. 2008) (district court lacked jurisdiction to review habeas petition where petitioner's sentences had expired). The Court GRANTS defendant's "letter-motion." Doc. 56. The "Notice" he seeks is attached to this Order, so he will receive a copy of it when the Clerk serves him with a copy of this Order.
Georgia's Department of Corrections website shows that Lehman was "released" on June 22, 1999. See attach. 1. His federal time would then begin. So, while he was on state parole, he started serving his federal sentence on the date of his state release (hence, he began serving his 13-year federal sentence on June 22, 1999). His state prison term expired on July 14, 2001 (attach. 1 at 2) while he was in federal custody. He was released under federal parole on May 2, 2008. See attach. 2 (Federal Bureau of Prisons "Notice of Release and Arrival"). He was "parole-able" because he was an eligible candidate at the time of the original sentencing under the old (now abolished parole system). However, that was recently revoked, see attach. 3 ("Notice of Action"), and thus Lehman must now serve 44 months. Id. The Federal Bureau of Prisons website shows that his release date will be May 23, 2012, and that adds up computationally (add 13 years to 1999 = 2012). See attach. 4.
As noted by the Third Circuit:
The Sentencing Reform Act created new sentencing procedures in the federal system, replacing "indeterminate sentences and the possibility of parole with determinate sentencing and no parole." [Lyons v. Mendez, 303 F.3d 285, 288-89 (3d Cir. 2002)] (quoting Walden v. U.S. Parole Comm'n, 114 F.3d 1136, 1138 (11th Cir. 1997)). It abolished the Parole Commission and repealed federal parole statutes, but § 235 [of the Sentencing Reform Act, 18 U.S.C. § 3551 et seq.] provided a savings provision to keep the Commission and parole statutes in effect for a period of transition to the new system. Walden, 114 F.3d at 1138. These transition sections apply to offenses committed before the Act's effective date. . . . Lyons, 303 F.3d at 288. As originally enacted in 1984, section 235(b)(3) provided that the Commission shall set a release date before the expiration of five years after the effective date of the Act. See id. at 288 n. 3. As explained by the District Court, since its original enactment, section 235(b)(3) has been continually amended to extend the five year savings provision for the Commission and parole statutes . . . see also Walden, 114 F.3d at 1138-39, and the Parole Commission and parole statutes are currently set to expire on October 31, 2011, see Pub.L. No. 110-312, § 2, 122 Stat. 3013 (August 12, 2008) (extending savings provision by 24 years after effective date of Sentencing Reform Act).Hackley v. Bledsoe, 350 F. App'x 599, *601 (3rd Cir. 2009); see also Shakur v. Wiley, 156 F. App'x 137, 138 (11th Cir. 2005); see also Hayward v. Marshall, ___ F.3d ___, 2010 WL 1664977 at * 7 (9th Cir. Apr. 22, 2010) ("Parole, unlike good time, has been abolished in the federal system.").
Lehman also moves "to correct sentence." Doc. 55. He insists that "on August 7, 2008 [he] was put in jail and was sentenced August 13, 2009 but an inaccurate computation put his jail time credit at 8 months 10 days." Id. at 1. "After sentencing," he explains, he "was in jail [for] an additional 7 months 4 days, a total of 19 months 8 days in jail, then he [was] transferred to federal prison on March 16, 2010. Now [he] seeks the right amount of Jail Time Credit in case CR408-204." Id. His motion is DENIED, since
"[a] claim for credit for time served is brought under 28 U.S.C. § 2241 after the exhaustion of administrative remedies." United States v. Nyhuis, 211 F.3d 1340, 1345 (11th Cir. 2000) (emphasis added); cf. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973) (holding "that when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus"). Granting credit for time served is initially an administrative function, so a federal prisoner must pursue an administrative remedy through the prison system before seeking judicial review. See United States v. Flanagan, 868 F.2d 1544, 1546 (11th Cir. 1989).United States v. Martin, 2010 WL 184053 at * 1 (11th Cir. Jan. 21, 2010); see also United States v. Luna-Mora, 180 F. App'x 847, 849 (11th Cir. 2006) (absent showing that defendant exhausted his administrative remedies for review of credit received for time served, his challenge to district court's refusal to grant him credit for time served in a county jail for violating his term of supervised release imposed for his aggravated felony conviction was not ripe for judicial review); Paye v. United States, 2007 WL 2177114 at * 1 (S.D. Ga. Jul. 25, 2007).
SO ORDERED.
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Georgia Department of Corrections Offender SearchExhibit GENDER: HEIGHT: WEIGHT: EYE COLOR: HAIR COLOR: SCARS, MARKS, TATTOOS INCARCERATION DETAILS MAJOR OFFENSE: MOST RECENT INSTITUTION: MAX POSSIBLE RELEASE DATE: Important Release Information TENTATIVE PAROLE MONTH: Important Parole Information ACTUAL RELEASE DATE: CURRENT STATUS: KNOWN ALIASES A.K.A. A.K.A. A.K.A. STATE OF GEORGIA — CURRENT SENTENCES CASE NO: 138846 OFFENSE: CONVICTION COUNTY: CRIME COMMIT DATE: SENTENCE LENGTH: CASE NO: 138846 OFFENSE: CONVICTION COUNTY: CRIME COMMIT DATE: SENTENCE LENGTH: CASE NO: 138846 OFFENSE: CONVICTION COUNTY: CRIME COMMIT DATE: SENTENCE LENGTH: STATE OF GEORGIA — PRIOR SENTENCES STATE OF GEORGIA — INCARCERATION HISTORY INCARCERATION BEGIN INCARCERATION END Site Map Privacy Links Contact Us Help
MALE 511" 140 BROWN BROWN VOLUNTARY MANSLAUGHTER GA STATE PRISON 07/14/2001 05/1999 06/22/1999 INACTIVE LEHAM, TERRY MITCHELL LEHAN, TERRY MITCHELL LEHMAN, TERRY MITCHELL POSS WPN, DRUGS BY PRISNR CHATHAM COUNTY 02/13/1984 5 YEARS, 0 MONTHS, 0 DAYS AGGRAV ASSAULT CHATHAM COUNTY 02/13/1984 10 YEARS, 0 MONTHS, 0 DAYS VOLUNTARY MANSLAUGHTER FULTON COUNTY 03/27/1981 20 YEARS, 0 MONTHS, 0 DAYS 10/02/1981 06/22/1999 Exhibit Inmate Locator — Locate Federal inmates from 1982 to present Name Register # Age-Race-Sex Location HAZELTON USP New Search FAQs Privacy Release Date Actual or Projected 1. TERRY MITCHELL 05879-021 51-White-M 05-23-2012 LEHMAN Results 1 — 1 of 1