The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Shon Dutton filed the instant habeas petition pursuant to 28 U.S.C. § 2241 on or about December 1, 2008, while he was a State inmate in the custody of the New York Department of Corrections at the Livingston Correctional Facility, serving a state sentence of three years imprisonment with a five year term of post-release supervision for Sexual Abuse in the First Degree.
Previously, in January 2003, he had been sentenced in the United States District Court for the Western District of New York (Arcara, Chief District Judge) to a 57 month sentence with a three-year term of supervised release to follow for a charge of Felon in Possession of a Firearm. On January 31, 2006, he was released from the Federal Bureau of Prisons custody to supervised release.
While he was on federal supervised release, he was arrested on State rape charges in February 2007, which was the reason for his state court incarceration at Livingston Correctional Facility.
On March 2, 2007, he was sentenced to 21 months in the United States District Court for the Western District of New York for violating the terms of supervised release based upon this new arrest on State-law charges. The Federal supervised release term commenced upon his release from the State sentence he was serving when he filed this Petition.
In his Petition, Dutton alleges the BOP erred in the execution of his supervised release violator term, because it should have commenced, but did not, upon the date it was imposed (March 2, 2007). Dutton seeks to have all time served in New York State custody and Federal custody credited against his Federal supervised release violator ("SRV") term. Dutton is challenging the computation of the length of his sentence by the Bureau of Prisons; that is, his Petition concerns the execution of the sentence, not its legality. Therefore, this petition is properly brought under 28 U.S.C. § 2241. See Levine v. Apker , 455 F.3d 71, 77-78 (2d Cir. 2006) ("A challenge to the execution of a sentence-in contrast to the imposition of a sentence-is properly filed pursuant to § 2241. Execution of a sentence includes matters such as 'the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.'") (quoting Jiminian v. Nash , 245 F.3d 144, 146 (2d Cir.2001); other citations omitted).
II. Factual Background and Procedural History
On January 27, 2003, Dutton was sentenced in the United States District Court for the Western District of New York to a 57-month term of imprisonment with a three-year term of supervised release to follow for his conviction of the charge of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1).
On January 31, 2006, Dutton was released from Federal custody as a result of good conduct time being credited against the 57-month Federal sentence.
On June 16, 2006, while on Federal supervised release, Dutton was arrested by New York State authorities pursuant to State-law rape charges and held in State custody pending disposition of the charges.
Also on June 16, 2006, a Federal arrest warrant was issued pursuant to the Notice of Federal Supervised Release Violation filed by the United States Attorney's Office ("the Government").
On January 24, 2007, the United States District Court for the Western District of New York issued a federal writ of habeas corpus ad prosequendum directing that Dutton be produced in the District Court on January 31, 2007. Accordingly, on January 31, 2007, Dutton was "borrowed" from the State authorities by the United States Marshal pursuant to this writ of habeas corpus ad prosequendum.
In District Court on January 31, 2007, Chief Judge Arcara read the Federal criminal charges based upon Dutton's supervised release violation to Dutton, who indicated he would admit to the charges.*fn1 On February 1, 2007, Dutton was returned to the custody of the State authorities in satisfaction of the Federal writ of habeas ad prosequendum.
On February 5, 2007, a second writ of habeas corpus ad prosequendum was issued directing that Dutton be produced in Federal court on February 8, 2007, for his plea hearing. Accordingly, on February 8, 2007, Dutton was borrowed from State authorities by the United States Marshals Service for his appearance in Federal court.
At the February 8, 2007, appearance, Dutton entered a guilty plea to the first charge of the Government's Petition for Warrant or Summons for Offender Under Supervision. The Plea Agreement acknowledged the maximum sentence for the supervised release violator conviction was 24 months with a three-year term of supervision, less any term of imprisonment that was imposed upon revocation of supervised release. The Plea Agreement was silent as to whether the supervised release violator term was to run consecutively to, or concurrently with, the State term of ...