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Johnston v. Warden, FCI Otisville

United States District Court, S.D. New York

May 23, 2017

BRIAN K. JOHNSTON, Petitioner,
v.
WARDEN, FCI OTISVILLE, Respondent.

          OPINION AND ORDER

          J. PAUL OETKEN UNITED STATES DISTRICT JUDGE

         Pro se Petitioner Brian K. Johnston brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that the Federal Bureau of Prisons (“BOP”) calculated his term of imprisonment incorrectly. (Dkt. No. 2 at 4 (“Petition”).) For the reasons that follow, his petition is denied.

         I. Background

         A. The California Sentence - 2011

         Johnston was arrested and detained on November 2, 2010, for violating the terms of supervised release imposed in connection with a prior period of incarceration. (Dkt. No. 9 ¶¶ 4-5.) On March 14, 2011, Johnston was sentenced in the United States District Court for the Central District of California to a sentence of time served and three years of supervised release. (Id. ¶ 6.) He was released from custody the following day, March 15, 2011. (Id.)

         B. The Ohio Sentences - 2015

         Four years later, on April 16, 2015, following an arrest for bank robbery, Johnston was sentenced in the United States District Court for the Northern District of Ohio to a 151-month term of confinement. (Id. ¶ 9.) On November 10, 2015, the same court sentenced Johnston to a 60-month term of confinement-to run consecutively to the term for robbery-for violating the terms of his supervised release. (Id. ¶ 10.) The sentencing order recommended that Johnston be credited with time served for the period of incarceration from November 2, 2010, to March 14, 2011. (Id.; id. Ex. G.)

         Notwithstanding the recommendation in that sentencing order, the BOP did not credit Johnston with time served for the November 2010 to March 2011 period of incarceration, on the rationale that this period of time was already accounted for by the sentence of time served imposed by the California court on March 14, 2011. (Id. ¶ 12.) The BOP did, however, credit Johnston with other periods of time served. (Id. ¶ 14.) Johnston currently remains incarcerated on these sentences.

         C. Johnston's Challenge

         Johnston contends that the calculation of his current sentence is incorrect due to the BOP's failure to credit him for time served between November 2010 and March 2011. He filed a series of administrative grievances challenging that calculation, which were all denied. (Id. ¶ 15.) He then filed this petition.

         II. Legal Standard

         Federal courts are obliged to construe pro se habeas petitions liberally. Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008).

         “A writ of habeas corpus under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction.” Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). A petition under § 2241 is the proper vehicle through which a federal prisoner may challenge the calculation of his sentence. See Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006). Before challenging a sentence calculation, a petitioner must first exhaust available administrative remedies. See Carmona, 243 F.3d at 634.

         The authority to calculate sentences-including the calculation of credit for time served-rests with the Attorney General, acting through the BOP. See United States v. Wilson, 503 U.S. 329, 331-35 (1992). The BOP is, in turn, bound by federal sentencing law, which provides that “[a] defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the ...


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