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Jon Settlemire v. E. K. Cauley

January 12, 2011

JON SETTLEMIRE
PETITIONER
v.
E. K. CAULEY, WARDEN
RESPONDENT



NOT FOR PUBLICATION OR CITATION

MEMORANDUM OPINION AND ORDER

Jon Settlemire is currently confined in the Federal Correctional Institution located in Ashland, Kentucky ("FCI-Ashland"). On December 20, 2010, Settlemire filed, through counsel, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, naming E.K. Cauley, the Warden of FCI-Ashland, as the respondent [D. E. 2]. On that same date, Settlemire's counsel filed a Motion to Transfer Petitioner's § 2241 Habeas Corpus Petition under 28 U.S.C. § 2241 to the United States District of Ohio [D. E. 3].

Settlemire has paid the $5.00 filing fee and this matter is now before the Court for full screening. The Court reviews the § 2241 petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing 28 U.S.C. § 2254 Cases; (applicable to § 2241 petitions under Rule 1(b)). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa.1979); see also 28 U.S.C. § 2243. The Court may summarily dismiss a petition if it appears from the face of the petition that the petitioner is not entitled to relief. See 28 U.S.C. § 2243; Blevins v. Lamanna, 23 F. App'x 216, 218 (6th Cir. 2001); Allen v. Perini, 424 F.2d 134, 141 (6th Cir.1970).

For the reasons set forth below, the Court will deny Settlemire's § 2241 petition, deny his motion to transfer this proceeding to the Northern District of Ohio, and dismiss this proceeding without prejudice.

CLAIMS

In August 2010 a federal court in Ohio revoked Settlemire's supervised release and committed him to the custody of the Bureau of Prisons ("BOP") for five months commencing on November 1, 2010. In his § 2241 petition, Settlemire challenges the imposition of that sentence, claiming that it violates his right to due process of law guaranteed by the Fifth Amendment of the United States Constitution.

ALLEGATIONS OF THE § 2241 PETITION

1. Conviction and Revocation of Supervised Release

On January 18, 2007, in the United States District Court for District of Northern District of Ohio, at Toledo, Settlemire pleaded guilty to one count of federal wire fraud, two counts of federal bank fraud, and one count of subscribing a false federal tax return, the latter count having been charged in a Supplemental Information. United States v. Settlemire, 3:04-CR-764-DAK-1(N.D. Ohio) ('the Trial Court").*fn1 On May 21, 2007, the Trial Court imposed a five-month sentence on the three counts in the Indictment and the count contained in the Information, each to run concurrently. The Trial Court also imposed a concurrent five-year term of supervised release on all four counts and ordered restitution of $15,110.00.

On May 13, 2010, Settlemire was arrested in the Southern District of Ohio and was charged in the Trial Court with violating the terms of his supervised release. Settelemire does not identify the exact nature of the supervised release violations. He stated only that the Columbus Police Department had investigated him for "fraud" but that they were not going to file criminal charges against him.

On August 30, 2010, the Trial Court imposed a five-month sentence on Settlemire for violating the terms and conditions of his supervised release; re-imposed another three-year term of supervised release; and deferred the commencement of the five-month sentence until November 1, 2010.*fn2

On September 14, 2010, Settlemire appealed the five-month sentence to the Sixth Circuit, but voluntarily dismissed that appeal on or about November 4, 2010. Settelemire began serving his sentence on November 1, 2010. According to Settlemire and the BOP's website, his release date is March 30, 2011.

2. Settlemire's Legal Arguments

In his ยง 2241 Petition filed by counsel, Settlemire argues that because the Columbus Police Department's investigation into his activities resulted in no criminal or civil charges being filed against him, he was wrongfully convicted and imprisoned for violating the terms his supervised release imposed in 2007. He argues that the five-month sentence violates his right to due process of law; that because he is challenging the manner in which his sentence is being executed, he is entitled to relief under 28 U.S.C. ...


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