United States District Court, D. Maryland
Xinis United States District Judge
Richard Ivy, a federal inmate currently confined at the
Federal Correctional Institution in Cumberland, Maryland,
filed this habeas action pursuant to 28 U.S.C. § 2241,
alleging the Federal Bureau of Prisons has failed to properly
calculate his sentence. ECF No. 1.
Timothy S. Stewart, the Warden of FCI-Cumberland, through
counsel, moves for dismissal, or in the alternative, for
summary judgment, arguing that Ivy has failed to exhaust his
administrative remedies, and that his sentence has been
properly calculated. ECF No. 4. Although advised of the
opportunity to do so (ECF No. 5), Ivy has not responded. A
hearing is not needed to resolve the case. See Loc.
Rule 105.6 (D. Md. 2016). For reasons stated herein, the
motion shall be granted and the petition shall be DENIED and
alleges that he was taken into custody by the United States
Marshal on March 16, 2011. ECF No. 1, p. 8. He states that he
was sentenced on July 26, 2012, and remains in federal
custody. He states that he was never returned to state
custody and claims that he has been “shorted
approx[imately] 16 months.” Id.
material facts of the case are not in dispute. Ivy was
convicted in the United States District Court for the
District of Ohio of violating the Racketeer Influenced and
Corrupt Organization Act (RICO), being a felon in possession
of a firearm, and drug trafficking conspiracy charges. ECF
No. 4-2 (Johnson Declaration ¶ 6); ECF No. 4-3, p. 3
(Public Information Inmate Data). He was sentenced to an 84
month term of confinement. Id. His projected
release, with the accrual of good conduct credits, is March
24, 2018. Id.
arrested by Ohio state authorities on September 7, 2010, for
breaking and entering and for possession of criminal tools.
ECF No. 4-2, ¶ 7. He was released on bond on September
16, 2010, but arrested for bond violation on those charges on
December 16, 2010. Id.
January 19, 2011, Ivy was sentenced in an Ohio state court to
one year of incarceration for violation of probation imposed
in a prior case. ECF No. 4-2, ¶ 8; ECF No. 4-3, p. 6
(Mahoning County, Ohio Judgment Entry 08CR1506). On January
21, 2011, he was sentenced in Ohio state court to one year
incarceration for the 2010 breaking and entering charge, as
well as one year incarceration for the 2010 possession of
criminal tools charge. ECF No. 4-2, ¶ 9, ECF No. 4-3, p.
9 (Mahoning County, Ohio Judgment Entry 10CR1507). The
sentences were to run concurrently, as well as concurrently
to the violation of probation sentence imposed on January 19,
2011. Id. Ivy received state jail credit from
September 7 to 16, 2010 (the time from his initial arrest to
release on bond) and from December 16, 2010 to January 30,
2011 (the time from re-arrest for he bond violation through
his commitment to the Ohio Department of Rehabilitation and
Correction (“DRC”)). ECF No. 4-2, ¶ 10, ECF
No. 4-3, pp. 13-14 (Ohio DRC letter); p. 16 (Ohio Sentence
Monitoring Independent Sentence Computation). He was
transferred to the Ohio DRC on January 31, 2011. Id.
petition for writ of habeas corpus ad prosequendum was filed
in the United States District Court for the District of Ohio
on March 16, 2011, seeking Ivy's appearance in that court
on charges of RICO conspiracy, conspiracy to possess with
intent to distribute crack, and felon in possession of a
firearm. ECF No. 4-2, ¶11, ECF No. 4-3, p. 18 (Petition
for Writ of Habeas Corpus ad Prosequendeum). Pursuant to the
writ, Ivy was temporarily taken from state custody into
federal custody by the United States Marshals Service
(USMS). Id. While in temporary federal
custody, Petitioner completed his state term of imprisonment.
On December 12, 2011, he was released to the full custody of
the USMS. ECF No. 4-2, ¶ 12; ECF No. 4-3, p. 16.
pleaded on May 18, 2010, to the RICO conspiracy, conspiracy
to possess with intent to distribute crack, and two counts of
being a felon in possession of a firearm. ECF No. 4-2, ¶
13; ECF No. 4-3, pp. 27-33. On July 26, 2012, he was
sentenced to a total term of incarceration of seven years.
federal sentence has been computed by the Federal Bureau of
Prisons (BOP) as commencing on July 26, 2012, the date his
sentence was imposed. ECF No. 4-2, ¶ 14; ECF No. 4-3, p.
35 (Sentence Monitoring Computation Data). He has been
credited for prior custody from December 13, 2011 (the day
after he completed his state sentence) to July 25, 2011 (the
day before his federal sentence commenced). Id.
Petitioner was not awarded prior custody credit from March
17, 2011 through December 12, 2012, because he received
credit toward his state sentence for that period of
incarceration. ECF No. 4-2, ¶ 15; ECF No. 4-3, p. 38
(BOP Program Statement 5880.28).
September 11, 2014, Ivy filed an administrative remedy with
the FCI-Cumberland Warden challenging the BOP's sentence
computation. ECF No. 4-2, ¶ 17; ECF No. 4-3, p. 43
(Administrative Remedy Generalized Retrieval). Relief was
denied. ECF 4-3, p. 43. Ivy appealed to the regional level on
October 21, 2014. Id., p. 44. The appeal was
rejected for failure to attach his BP-9 form. Id. He
resubmitted an appeal, on November 13, 2014, which was
rejected. Id. Ivy claims he filed an appeal to the
Office of General Counsel, “but it was returned over a
month later” and “[a]t that point it was too
late.” ECF No.1, p. 6. There is no record that Ivy
appealed to the Central Office Level. ECF No. 4-2, ¶ 17;
ECF No. 4-3, pp. 42-44.
Motion to Dismiss The purpose of a motion to dismiss pursuant
to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the
Plaintiff's complaint. See Edwards v. Goldsboro,
178 F.3d 231, 243 (4th Cir.1999). The Supreme Court
articulated the proper framework for analysis:
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” in order to
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957) (abrogated on other
grounds). While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
ibid.; Sanjuan v. American Board of Psychiatry
and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994), a
plaintiff's obligation to provide the
“grounds” of his “entitle[ment] to
relief” requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do, see Papasan v. Allain, 478 U.S. 265,
286 (1986) (on a motion to dismiss, courts “are not
bound to accept as true a legal conclusion couched as a
factual allegation”). Factual allegations must be
enough to raise a right to relief above the speculative
level, see 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-236 (3d ed. 2004) (hereinafter
Wright & Miller) (“[T]he pleading must contain
something more . . . than . . . a statement of facts that
merely creates a suspicion [of] a legally cognizable right of
action”), on the assumption that all the allegations in
the complaint are true (even if doubtful in fact), see,
e.g., Swierkiewicz v. Sorema N.A., 534 U.S.