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Ernle v. Entzel

United States District Court, N.D. West Virginia

June 10, 2019

TIMOTHY ERNLE, Petitioner,
v.
F. ENTZEL, Warden Respondent.

          STAMP JUDGE

          REPORT AND RECOMMENDATION

          JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Procedural History

         On 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.

         On 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 been released.

         II. Facts

         On 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 On September 16, 2010, Petitioner's parole was revoked on No. 191-2007, and he was sentenced to serve the remainder of his original sentence.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.

         On May 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.

         On July 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.

         From at 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.

         Therefore, 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.

         On July 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.

         III. The Pleadings

         A. The Petition

         After 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 disciplinary ...


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