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Burlingame v. Wilson

United States District Court, N.D. West Virginia, Clarksburg

February 27, 2018

FRED BURLINGAME, Petitioner,
v.
WILSON, Warden, Respondent.

          KEELEY JUDGE

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On September 9, 2016, pro se Petitioner, Fred Burlingame, a federal inmate filed this habeas petitioner pursuant to 28 U.S.C. § 2241. ECF No. 1. On October 17, 2016, he paid the $5 filing fee. ECF No. 11. On August 11, 2017, the Court undertook a preliminary review of the petition and determined that summary dismissal was not warranted. ECF No. 14. Accordingly, an to Show Cause was issued against Respondent. Id. On September 13, 2017, Respondent filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment and Response. ECF No. 19. In addition, Respondent filed a Memorandum in Support with an Exhibit. ECF No. 20. On September 14, 2017, a Roseboro Notice [ECF No. 21] was issued. Despite being given an enlargement of time [ECF No. 24], Petitioner has not filed a Response.

         II. FACTS

         On December 11, 2014, Petitioner was arrested by law enforcement officials of the Bay County, Michigan Sheriff's Department for Driving on a Suspended License. Id. On June 28, 2015, Petitioner was sentenced by the Bay County District Court to a term of imprisonment of 46 days for Driving on a Suspended License. ECF No. 20-1 at 10. He was credited with 46 days by Bay County giving him a release date of June 25, 2015. Id.

         On June 28, 2015, the United States District Court for the Eastern District of Michigan issued an arrest warrant in Case No. 1:15-cr-20042. Id. at 16. On January 28, 2015, a one-count indictment was issued in the Eastern District of Michigan charging Petitioner with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). United States v. Burlingame, No. 15-cr-20041, 2017 WL 299-1766 (E.D. Mich. July 14, 2017). On January 30, 2015, Petitioner was taken into federal custody by the United States' Marshall's Service on a federal arrest warrant. ECF No. 20-1 at 18. A first superseding indictment was issued on February 11, 2015, followed by a second superseding indictment on April 8, 2015, which charged Petitioner with one count of manufacturing or attempting to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 842(b)(1)(C), and 846, and one additional count of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). On June 9, 2015, Petitioner pleaded guilty to the methamphetamine charge, and he was later sentenced to 188 months of imprisonment. ECF No. 20-1 at 21. Petitioner did not appeal his conviction or sentence.

         The Bureau of Prisons prepared a sentence computation for Petitioner based on a 188 month term of imprisonment. His sentence commenced on September 17, 2015, the same day he was sentenced in federal court. He received prior custody credit from January 26, 2015, through September 16, 2015. He currently has a projected release date of September 18, 2028, via Good Conduct Release. Id. at 28.

         III. THE PLEADINGS

         A. The Petition

         Petitioner advances two claims in support of his habeas petition. First, relying on the decision in Johnson v. United States, 135 S.Ct. 2251 (2015), Petitioner asserts that his federal sentence was unlawfully enhanced based on Michigan state convictions which are not violent crimes. More specifically, he alleges that convictions arising out of a 2005 Michigan indictment including, (1) Police Officer Assault, Resisting, or Obstructing; (2) Police Officer-Fleeing 4th Degree; and (3) Assault-Weapon are unconstitutionally vague and denied him fair notice and due process. Furthermore he alleges that those charges do not meet the violence and force clauses and are not crimes of violence as defined by the United States Sentencing Guidelines (“USSG”) § 4B1.2.

         Second, Petitioner alleges that the BOP failed to credit him with 46 days prior jail credits and failed to apply the nunc pro tunc designation. In support of this allegation, Petitioner maintains that the charges in his federal case began on December 11, 2014 and ran through January 28, 2015, and therefore he should receive credit for the time he was incarcerated in Bay County.

         B. Respondent's Motion and Memorandum

         Respondent argues that Petitioner's Johnson a claim should be dismissed. First, because the proper vehicle for asserting such a claim is a § 2255 petition not a § 2241. Second, Respondent argues that Petitioner's Johnson a claim is untimely because he only had until June 26, 2016, to advance that claim. Finally, Respondent notes that Petitioner was not sentenced pursuant to the residual clause, the Armed Career Criminal Act generally, nor the career offender provision of the Sentencing Guidelines.

         With respect to Petitioner's claim that he's been denied 46 days of jail credits, Respondent argues that his federal sentence was properly calculated to commence on September 17, 2015, when he was released from his State sentence into the custody of the BOP. Respondent continues that Petitioner is not entitled to the jail credit he seeks because that time was already credited to another sentence.

         IV. STANDARD OF REVIEW

         A. Motion to Dismiss

         “A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ยง 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in ...


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