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Ivy v. Stewart

United States District Court, D. Maryland

December 14, 2017

RICHARD IVY, Petitioner
v.
TIMOTHY S. STEWART, Respondent

          MEMORANDUM

          Paula Xinis United States District Judge

         Petitioner 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.

         Respondent, 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 DISMISSED.

         Ivy 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.

         The 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.

         Ivy was 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.

         On 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.

         A 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).[1] 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.

         Ivy 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. Id.

         Ivy's 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).

         On 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.

         Standard of Review

         A. 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. ...

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