Opinion
Civil Action 3:23-cv-0044
08-31-2023
ERIC J. JOHNSON, Petitioner, v. WARDEN MICHAEL UNDERWOOD, Respondent.
Kim R. Gibson, United States District Judge
This matter has been referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
CYNTHIA REED EDDY, United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by Eric J. Johnson be dismissed with prejudice as a successive petition pursuant to the “abuse of writ doctrine.” Alternatively, if the Court again considers the merits of Petitioner's habeas petition, it is recommended that the Petition be denied. Additionally, it is recommended that Petitioner's request for compassionate release be dismissed.
The undersigned takes judicial notice of the docket and filings in United States v. Johnson, Criminal Case No. 1:12-cr-150 (M.D. Pa), Petitioner's criminal case, as well as the docket and filings in Johnson v. Andrews, No. 2: 21-cv-00245 (E.D. Va), Petitioner's prior habeas case.
Petitioner, Eric J. Johnson, is a federal prisoner who is serving a term of imprisonment imposed by the U.S. District Court for the Eastern District of Pennsylvania in United States v. Johnson, Criminal Case No. 1:12-cr-150 (M.D. Pa). He is in the custody of the Bureau of Prisons (“BOP”) and is incarcerated at the Federal Correctional Institution in Loretto, Pennsylvania. Johnson is currently serving a 188-month term of imprisonment after pleading guilty to one count of Conspiracy to Distribute and Possession with Intent to District Crack Cocaine, in violation of 21 U.S.C. § 846. See United States v. Johnson, Criminal Case No. 1:12-cr-150 (M.D.Pa) (ECF No. 11-3).He does not challenge the legality of his federal conviction or sentence. Instead, he claims that the BOP erroneously calculated his federal sentence and, that he is entitled to credit towards his current federal sentence for the time he was in state custody prior to the commencement of his federal sentence. Additionally, Johnson appears to be requesting compassionate release due to having stage three chronic kidney disease, which he claims presents a serious risk of complications from COVID-19 infection. Pet. at ¶ 6.
On July 30, 2014, Johnson was sentenced to a 200-month term of imprisonment with a three-year term of supervised release. On April 27, 2016, his sentence was reduced to 188 months pursuant to 18 U.S.C. § 3582(c)(2). All other provisions of his original sentence remain in effect. (ECF No. 11-4).
Respondent filed a timely response with several attachments. (ECF No. 11). Respondent contends that the petition should be dismissed for abuse of the writ as Johnson has previously litigated this issue. As to any request for compassionate release, Respondent contends that request should be dismissed as Johnson has not fully exhausted his administrative remedies. See 18 U.S.C. § 3582(c)(1)(A). Johnson did not file a Reply nor has he requested an extension of time in which to do so. See Local Civil Rule 2241(D)(2). The matter is ripe for disposition.
A. Discussion
1. The Petition Should Be Dismissed Based On The Abuse of the Writ Doctrine
Respondent contends that the Petition should be dismissed as a successive petition because the issue of credit for time served was properly addressed and rejected in Johnson's prior § 2241 habeas petition, filed in the United States District Court for the Eastern District of Virginia. Johnson v. Andrews, No. 2: 21-cv-00245 (E.D. Va). Johnson acknowledges in his Petition that he brought this exact claim previously, but he states that the decision dismissing his petition cited “inapposite law while ignoring the facts as stated, thumbing its nose at this Court's Order requiring that the Federal sentence imposed run concurrent with the state sentences.” Pet. at ¶ 4. For the reasons set forth below, the undersigned agrees with Respondent that the instant petition should be dismissed as a successive petition.
In Johnson's prior habeas case, the Court specifically addressed and rejected on the merits Petitioner's claims regarding the BOP's alleged incorrect calculation of his sentence and dismissed the petition with prejudice. Specifically, the Court stated:
At the time Johnson filed his first habeas petition, he was housed at the Federal Correctional Center Petersburg, which is within the territorial boundaries of the United States District Court for the Eastern District of Virginia. At the time he filed this habeas petition, he was housed at FCI Loretto, which is within the territorial boundaries of the United States District Court for the Western District of Pennsylvania.
Johnson argues that, because the sentencing judge intended that his federal sentence run concurrently, he should receive credit for all the time he spent in custody before his federal conviction, and that BOP's refusal to credit him with this time spent in state custody before his federal conviction is a sentence calculation error subject to correction under Section 2241....
[B]ecause service of the federal sentence cannot begin until it is imposed, in this case BOP could not designate a state institute for concurrent service of Johnson's sentence any earlier than July 30, 2014, the date he was sentenced on the federal charges.
In addition, 18 U.S.C. § 3585(b) provides:
Credit for prior custody - a defendant shall be given credit towards the service of a term of imprisonment for any time spent in official detention prior to the date the sentence commences.
1. As a result of the offense for which the sentence was imposed; or
2. As a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed: that has not been credited against another sentence.
18 U.S.C. § 3585(b) (emphasis added). In this case, the time for which Johnson complains he was denied credit was credited against his state sentence in Pennsylvania, and as a result, BOP was precluded by statute from crediting it against his federal sentence notwithstanding the federal sentencing judge's direction that Johnson serve his sentences concurrently. The time he was in state custody was not pretrial detention, but time credited against his state sentence while he was in the state's primary custody before commencement of his federal sentence. Johnson did receive credit for a portion of time he spent in state custody; namely, the 235 days from the time he was convicted on the federal charges on July 30, 2014, until conclusion of his state sentence on June 30, 2015.Johnson v. Andrews, No. 2: 21-cv-00245, Report and Recommendation (Dec. 17, 2021) (emphasis in original), adopted by Final Order (Jan. 13, 2022), affirmed, No. 22-6144 (4th Cir. June 28, 2022) (per curiam).
Res judicata does not apply to habeas petitions. Rather, courts rely upon the equitable nature of habeas corpus to preclude application of strict rules of res judicata. See Schlup v. Delo, 513 U.S. 298, 317-319 (1995). Title 28, United States Code, section 2244(a), provides:
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section § 2255.
While not expressly referenced in § 2244(a), courts have consistently held that the substantive provisions of § 2244 are applicable to § 2241 habeas petitions brought by federal prisoners. The United States Court of Appeals for the Third Circuit has stated:
[the 28 U.S.C. § 2244(b)] ‘gatekeeping' provision generally does not apply to petitions for habeas relief filed pursuant to 28 U.S.C. § 2241. See, e.g., Zayas v. INS, 311 F.3d 27, 255 (3d Cir. 2002). Instead, second or successive § 2241 petitions are governed by the “abuse of the writ” doctrine. Id. at 256-58.King v. Fed. BOP, 285 Fed.Appx. 2, 4 (3d Cir. 2008) (emphasis added). See also Felker v. Turpin, 518 U.S. 651, 664 (1996) (holding that the restrictions on successive petitions found in 2244(a), “constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice ‘abuse of the writ” and applying those principles to an original petition filed under 28 U.S.C. § 2241); Valona v. United States, 138 F.3d 693, 695 (7th Cir.1998) (holding that § 2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution of a sentence); Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir.1997) (dismissing § 2241 petition as successive pursuant to § 2244).
In the instant § 2241 habeas petition, Johnson again claims that the BOP made an error in computing his sentence and he again claims he is entitled to credit for the time he was in state custody prior to the commencement of his federal sentence. However, based on the record in the present case, including the habeas petition and exhibits and Respondent's response and exhibits, as well as the findings of the Court for the Eastern District of Virginia, the undersigned finds that the exact same claims raised by Johnson in this petition regarding the BOP's calculation of his sentence previously were decided on the merits and dismissed by the Court for the Eastern District of Virginia. Johnson does not provide any substantive argument as to why it would be appropriate for this Court to consider a claim which has already been presented to another federal district court and there is no indication Johnson was granted leave to file a second or successive petition by the United States Court of Appeals for the Third Circuit. Therefore, it is recommended that the instant § 2241 habeas petition be dismissed with prejudice as a successive petition pursuant to the “abuse of the writ doctrine.”
2. Alternatively, The Petition Should Be Denied On Its Merits
Alternatively, even if Johnson's instant claims were again considered on their merits by this Court, the record clearly shows the Johnson's federal sentence was properly calculated by the BOP.The following facts are not in dispute:
Because Johnson is challenging the BOP's computation of his federal sentence and not seeking modification of his sentence imposed by the Eastern District of Virginia Court, he can proceed in a § 2241 habeas petition as opposed to a 28 U.S.C. § 2255 motion to modify sentence.
Prior to his federal conviction, Johnson was arrested on June 8, 2012, by state authorities in Pennsylvania as a result of a drug transaction. Johnson v. Andrews, No. 2: 21-cv-00245, Report and Recommendation (“R&R”) at 1. Because he was then on parole for earlier state convictions, he was recommitted to state custody to resume serving his originally imposed state sentences. (ECF No. 6-1 at p. 5). While in state custody, Petitioner was indicted on federal charges on June 12, 2012, for Conspiracy to Distribute and Possession with Intent to District Crack Cocaine, in violation of 21 U.S.C. § 846. He was temporarily transferred to federal custody for proceedings in connection with his federal offense several times - on July 17, 2012; March 5, 2013 to August 15, 2013; December 5, 2013; and on July 30, 2014, the date of his federal sentencing. R&R at 2.
On July 30, 2014, Johnson was sentenced in federal court to a total term of 200 months imprisonment. This sentence was ordered to run concurrently with the state sentences Johnson had by then resumed serving in state prison. (Petition, ECF No. 6). Johnson entered BOP custody after completion of his state sentence on July 1, 2015, when he was taken into custody on a federal detainer to finish serving his concurrent federal sentence. R&R at 2.
A sentencing computation was completed by BOP, which calculated Johnson's federal sentence as beginning July 30, 2014, the date he was sentenced in federal court in Pennsylvania. (Current Computation, ECF No. 6-1 at p. 2; ECF No. 11-2 at p. 4). Johnson did not receive credit against his federal sentence for the time he spent serving his state sentence from June 8, 2012, until his federal sentence was imposed on July 30, 2014. R&R at 3. It is this denial of sentencing credit which Johnson challenged in his first habeas case filed in the Eastern District of Virginia, and the same denial of sentencing credit which he again challenges in this Court.
The undersigned finds that the BOP's computation of Johnson's sentence properly calculated the amount of prior custody to which he was entitled under § 3585(b). Johnson has received credit for a portion of time he spent in state custody; namely, the time he was convicted on the federal charges on July 30, 2014, until conclusion of his state sentence on June 30, 2015. Prior to July 30, 2014, he was in the state's primary custody, he was not in pre-sentence detention because the state sentence he was serving had already been imposed, and, importantly, the time was credited against his state sentence.
The undersigned finds that the BOP has correctly calculated Johnson's federal sentence and, thus, it is recommended that if the Court considers this habeas petition on its merits, it be denied.
B. Request for Compassionate Release
Johnson requests an Order from this Court “reducing his sentence to time served based upon the fact that Petitioner has served nearly 11 years of his sentence and is subject to serious illness should he contract Covid-19.” Pet. at ¶ 6. Respondent argues that Johnson's request for compassionate release should be denied because he has failed to fully exhaust all administrative rights.
If Johnson's request is considered a motion for compassionate release pursuant to the First Step Act (“FSA”), as codified at 18 U.S.C. §3582(c)(1)(A)(1), this habeas court cannot reduce Johnson's sentence under § 3582(c)(1)(A)(1). Only the district court that imposed his sentence can do so. Therefore, to the extent that Johnson is seeking a compassionate-release sentence reduction under § 3582(c)(1)(A)(1), he must seek such relief by filing a motion in his criminal case with the district court that sentenced him.
Johnson's criminal case docket reflects that he filed such a motion with his sentencing court on February 16, 2023, and said motion was denied without prejudice on August 3, 2023, “because defendant has not exhausted all administrative remedies as required in 18 U.S.C. §3582(c)(1)(A)(1), nor have 30 days lapsed since receipt of defendant's request by the warden of the defendant's facility.” See United States v. Johnson, 1:12-cr-00150, Order entered at ECF No. 145.
To the extent that Johnson is relying on the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), Pub. L. 116-136, 134 Stat. 81 (2020), this Court does not have authority to grant his request for relief. The CARES Act did not change the BOP's exclusive authority to determine a prisoner's place of confinement. See United States v. Pettiway, No. 08-cr-0129, 2020 WL 3469043, at *2 (E.D. Pa. June 25, 2020) (holding that “[r]egardless of the nature of defendant's medical condition or the existence of the coronavirus pandemic, Congress did not provide the courts with the authority to release inmates into home confinement at an earlier time under the CARES Act.”).
For these reasons, it is recommended that Johnson's request for compassionate release be dismissed.
III. CONCLUSION
For all these reasons, it is recommended that the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by Eric J. Johnson be dismissed with prejudice as a successive petition pursuant to the “abuse of writ doctrine.” Alternatively, if the Court again considers the merits of Petitioner's habeas petition, it is recommended that the Petition be denied. Additionally, it is recommended that Petitioner's request for compassionate release be dismissed as Petitioner has not fully exhausted his administrative remedies.
Any party is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by September 18, 2023, and Respondent, because he is an electronically registered party, must file objections, if any, by September 15, 2023. The parties are cautioned that failure to file timely and specific objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).