United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
P. MAZZONE UNITED STATES MAGISTRATE JUDGE.
case is before the undersigned for consideration of pro
se Petitioner Ernle's (“Petitioner”)
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241, Respondent's Motion and Memorandum to
Dismiss or, in the Alternative, for Summary Judgement,
Petitioner's Response in Opposition to Respondent's
Motion and Petitioner's Motions to Expedite. ECF Nos. 1,
8, 14, 24, 26.
August 8, 2018, Petitioner filed a Writ of Habeas Corpus
Under 28 U.S.C. § 2241. ECF No. 1. On August 10, 2018,
Petitioner paid the $5 filing fee. ECF No. 4. On September
10, 2018, Petitioner filed a Motion/Request to Expedite
Petition, alleging that if this Court granted the relief
requested in his petition, his statutory release would be
imminent. On October 10, 2018, the undersigned ordered
Respondent to show cause as to why the writ should not be
granted. ECF No. 9.
November 14, 2018, Respondent answered with a Motion to
Dismiss or, in the alternative, Motion for Summary Judgment
with a Memorandum in Support and exhibits. ECF Nos. 14, 15,
17. A Roseboro Notice was issued to the Petitioner
by the undersigned on November 20, 2018, pursuant to
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975), instructing Petitioner of his right to file a response
to Respondent's Motion and Memorandum. ECF No. 18.
Petitioner filed a Traverse on December 20, 2018. ECF No. 24.
Finally, on March 19, 2019, Petitioner filed a second Motion
to Expedite alleging that if the Bureau of Prisons had
properly calculated his jail credits, he already would have
August 11, 2010, New York State authorities in Madison County
arrested Petitioner for a Parole Violation, No. 191-2007. On
August 26, 2010, Petitioner was arrested by the State of New
York on two charges. Charge One alleged Robbery in the 1st
degree; Use Dangerous Weapon and Charge Two alleged Robbery
in the 3rd degree, No. 2010-423. On September 16, 2010,
Petitioner's parole was revoked on No. 191-2007, and he
was sentenced to serve the remainder of his original
sentence. Petitioner served this sentence until his maximum
expiration date of February 7, 2011. Petitioner remained in
state custody following the expiration of this term and
received 136 days jail credit towards his sentence in No.
2010-423. On March 2, 2011, in No. 2010-423, Petitioner
pleaded guilty to the second charge, and the first charge was
dismissed. On May 11, 2011, he was sentenced to an
indeterminate term of three years minimum to six years
maximum. ECF No. 14-3 at 3.
4, 2011, Petitioner was indicted on federal charges in the
United States District Court for the Western District of New
York on multiple counts of Bank Robbery by Force or Violence
and multiple counts of Robbery of Property or Money. On March
25, 2013, Petitioner entered into a plea agreement whereby he
agreed to plead guilty to Count 7 of the Indictment which
charged a violation of Title 18, United States Code, Section
2113(a) (bank robbery), for which the maximum possible
sentence was a term of imprisonment of 20 years, a fine of
$250, 000, a mandatory $100 special assessment and a term of
supervised release of 3 years. In addition, the plea
agreement provided that Petitioner was a Career Offender and
that Guidelines § 4B1.1(b)(3) applied. At sentencing,
the government agreed not to oppose the recommendation that
the Court apply the two level downward adjustment of
Guidelines § 3E1.1 (acceptance of responsibility) and
further agreed to move the Court to apply the one level
downward adjustment of Guidelines § E1.1(b), which would
result in a total offense level of 29. The parties further
agreed that Petitioner's criminal history category was
VI. Accordingly, Petitioner's guideline range was a term
of imprisonment of 151 to 188 months.
15, 2016, Petitioner was sentenced in the United States
District Court for the Western District of New York to a 65
month term of confinement, which was below the guideline
range. The Judgment was ordered to run consecutive to New
York state Case Number 2010-423. ECF No. 14-3 at 31.
least January 23, 2012, until he was sentenced, Petitioner
was in the custody of the U.S. Marshall Service pursuant to a
Writ of Habeas Corpus ad Prosequendum (“WHCAP”).
ECF No. 14-4 at 26. While he was on federal Writ, Petitioner
was held in jails and detention centers located within the
State of New York until July 15, 2016, when he was
transferred to the Northeast Ohio Correctional Center. ECF
No. 14-2, ¶ 9. On March 6, 2015, Petitioner was granted
a conditional release by the New York State Department of
Correctional Services. ECF No. 1-2 at 4. However, because he
was in the custody of the U.S. Marshal Service, he remained
“in custody” pursuant to the WHCAP. Between the
first and second day of August 2016, shortly after Petitioner
was sentenced in Federal Court, an inmate records coordinator
at New York State Department of Corrections and Community
Supervision (“DOCCS) and the Transportation Coordinator
at DOCCS exchanged a series of emails indicating Petitioner
had been sentenced to a consecutive federal term and was
ready to be returned to the State of New York. ECF No. 14-4
at 24-29.The emails further discussed Petitioner had an
approved conditional release from his New York State sentence
which had passed and that he would be immediately eligible
for release upon his return to the New York Department of
Corrections. However, Petitioner was being detained in Ohio
by the U.S. Marshal Service and to alleviate the cost of
transporting Petitioner back to the State of New York, the
U.S. Marshals has requested to “sign out” the
inmate to his conditional release. It appears from the emails
that this request was granted.
Petitioner was not returned to New York state authorities.
Instead, he remained in the Ohio Correctional Center until
August 9, 2016, when he was released via conditional release
from his New York State sentence. This resulted in Petitioner
entering exclusive federal custody, and the Bureau of Prisons
commenced his federal sentence on August 9, 2016. ECF No.
14-4 at 4.
11, 2018, the United States, upon an affidavit filed
separately under seal, filed a notice of motion and motion
for sentencing-related relief. On August 1, 2018, the United
States District Court for the Western District of New York
granted the Government's Rule 35(b) Motion and amended
Petitioner's judgment, reducing his term of imprisonment
from 65-months to 51-months. ECF No. 14-4 at 6-7. The Bureau
has prepared a sentence computation for Petitioner based on a
51-month term of confinement beginning on August 9, 2016,
with no prior credit time because in imposing the federal
sentence, the court ordered it to run consecutive to the
state term Petitioner was then serving. Based on this
calculation, Petitioner is currently scheduled to release
from Bureau custody, via Good Conduct Time release on April
22, 2020. ECF No. 14-4 at 2.
reciting the history of his state and federal convictions,
Petitioner alleges that in January of 2015, while in federal
custody on the writ, he sent a letter to the New York DOCCS
requesting that he be conditionally released pursuant to New
York Penal Law 70.40(b). As evidenced by an attachment to his
petition, on March 5, 2015, the Chairmen of the DOCCS
recommended conditional release effective February 7, 2015
because Petitioner had satisfied required programs and had no