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Calmese v. Young

United States District Court, E.D. California

November 19, 2019

KHELBY CALMESE, Petitioner,
v.
S. YOUNG, Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS AND DENY PETITION FOR WRIT OF HABEAS CORPUS [DOC. 11]

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

         On June 7, 2019, Petitioner filed the instant petition. He is in the custody of the Bureau of Prisons (“BOP”) at the Federal Correctional Institution located in Mendota, California. He challenges the computation of his federal sentence by the BOP, and claims the BOP failed to credit his federal sentence for time he was borrowed from state authorities to face federal charges. On September 24, 2019, Respondent filed a motion to dismiss in which he contends: 1) Petitioner failed to exhaust his administrative remedies; and 2) The claims are meritless insofar as the BOP has correctly computed his federal sentence. Petitioner did not file an opposition.

         For reasons discussed below, the Court will RECOMMEND Respondent's motion be GRANTED and the petition be DENIED with prejudice.

         DISCUSSION

         I. Background

         A. State Proceedings

         Between 2007 and 2009, Petitioner committed several crimes in Missouri, including stealing, second degree robbery, and resisting arrest, for which he received state sentences followed by state parole. (Doc. 11-2 at 19-20.) On April 22, 2014, he was released on parole. (Doc. 11-2 at 18.) Thereafter, he was arrested for several offenses. (Doc. 11-2 at 13-15.) On March 25, 2015, the State of Missouri commenced proceedings for violating state parole. (Doc. 11-2 at 18.) On May 13, 2015, a parole revocation hearing was held, and parole was revoked. (Doc. 11-2 at 31.) Petitioner was taken into state custody for the remainder of the state prison term which was set to expire on June 22, 2017. (Doc. 11-2 at 31.) He obtained early release on April 27, 2017, for good conduct. (Doc. 11-2 at 45, 49.)

         B. Federal Proceedings

         On April 29, 2015, Petitioner was indicted in the United States District Court for the Eastern District of Missouri for multiple offenses including being a felon in possession of a firearm. United States v. Calmese, Case No. 4:15-cv-00199-CEJ (E.D.Mo. 2015.) On January 11, 2017, Petitioner pled guilty to one count of being a felon in possession of a firearm. Id. (Doc. 117.) On April 11, 2017, Petitioner was sentenced to serve a total federal prison term of 65 months. Id. (Doc. 127.) On April 27, 2017, Petitioner was released from Missouri state custody and taken into federal custody to commence serving his federal sentence. (Doc. 11-2 at 45, 49.)

         On several occasions during the time Petitioner was in Missouri custody serving his state sentence, Petitioner was borrowed from state custody by federal authorities via writ of habeas corpus ad prosequendum (“WHCAP”) for federal proceedings. (Doc. 11-2 at 6-9.)

         C. Federal Sentence Calculation

         The BOP determined that Petitioner's sentence, which was imposed on April 11, 2017, commenced on April 25, 2017-the date he was released from Missouri and taken into federal custody. (Doc. 11-2 at 7-9.) He was not awarded any credit for any time between the date of his arrest, January 20, 2015, and the date he was taken into federal custody, April 25, 2017. (Doc. 11- 2 at 8.) He also received no credit against his federal sentence for any time he was on loan from the State of Missouri via WHCAP. (Doc. 11-2 at 8.)

         On July 31, 2017, Petitioner submitted an inmate request with prison authorities for credit against his sentence for time he was on loan via WHCAP. (Doc. 11-2 at 8.) On August 9, 2017, the BOP denied his request because that time period had already been credited against the state sentence. (Doc. 11-2 at 8.) Allowing for possible good time credits, the ...


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