Opinion
Civil Action 23-161-KKC-CJS Criminal Action 5:17-118-KKC-CJS-3
03-25-2024
UNITED STATES, PLAINTIFF, v. ROBERT EARL WALLACE, DEFENDANT.
ORDER
KAREN K. CALDWELL, UNITED STATES DISTRICT JUDGE EASTERN DISTRICT OF KENTUCKY.
This matter is before the Court on the defendant Robert Earl Wallace's motion to vacate, set aside, or correct his sentence (DE 783) under 28 U.S.C. § 2255 and the magistrate judge's recommendation that the motion be denied (DE 798).
The defendant pleaded guilty to one charge: conspiracy to distribute 5 kilograms or more of cocaine and 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) (DE 668, Judgment). On October 2, 2020, the Court sentenced the defendant to 60 months of imprisonment followed by a 5-year term of supervised release. Wallace was ordered to self-surrender for service of his sentence by January 15, 2021, and was placed on home detention with electronic monitoring pending his self-surrender. Wallace requested and was granted an extension on his self-surrender date in order to receive the COVID-19 vaccine. On April 15, 2021, Wallace timely self-surrendered to the Bureau of Prisons (“BOP”).
Wallace filed a § 2255 Motion requesting that his post-sentencing home confinement count towards service of his 60-month sentence since the confinement constituted “official detention.” (DE 783.) The magistrate judge construed the motion as a 28 U.S.C. § 2241 petition and found that the Court does not have jurisdiction over the petition because at the time of filing, Wallace was confined in the Central District of California. Accordingly, the magistrate judge recommended that the defendant's motion be dismissed without prejudice. Wallace has not filed objections to the recommendation and the time to do so has expired. The Court has reviewed the recommendation and agrees with its analysis.
Accordingly, the Court hereby ORDERS as follows:
1) the Report and Recommendation (DE 798) is ADOPTED as the Court's opinion;
2) Wallace's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (DE 783) is construed as a Petition for Habeus Corpus under § 28 U.S.C. § 2241 and, as so construed, is DISMISSED WITHOUT PREJUDICE;
3) a certificate of appealability will not be issued;
4) Wallace's related collateral civil proceeding is DISMISSED and STRICKEN from the Court's active docket; and
5) A judgment consistent with this order and the Report and Recommendation will be entered.