United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
Stanley William Foss, III, is an inmate confined at the Federal Medical Center in Lexington, Kentucky. Through counsel, Foss has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, in which he contends that the Bureau of Prisons ("BOP") has failed to properly credit time he spent in pretrial custody against his federal sentence. [Record No. 1]
On July 29, 2010, a federal grand jury sitting in Allentown, Pennsylvania indicted Foss on charges of receiving approximately fifty pounds of black powder explosive from Arkansas, and possession of multiple firearms and ammunition, after having previously been convicted of a felony and committed to a psychiatric institution, all in violation of 18 U.S.C. §§ 842(i), 844(a), and 922(g)(1). Three days later, Foss was transferred from state to federal custody.
In October 2011, Foss pleaded guilty to the above charges. On May 14, 2012, the court entered a judgment sentencing Foss to a 33-month term of incarceration for each count, with each term to run concurrently with all others. The judgment included a number of recommendations to the BOP, including a recommendation for mental health treatment, dental care, and placement in a halfway house as soon as possible. However, the judgment was silent regarding calculation of Foss's sentence. United States v. Foss, No. 10-CR-494-LS (E.D. Pa. 2010).
During the May 14, 2012, sentencing hearing, Foss spoke on a number of topics, some of which touched on calculation of his sentence. For instance, he stated:
[W]hat I am asking you for, Your Honor, is time served for a number of reasons, not the least of which is because of the way they have to calculate time. Let's just say I've been in jail for 34 months. If you say your sentence is 34 months that still means that I'll be in there for about two to three months because they have to calculate the time, and good time, and things like that.
[Record No. 1-3, p. 5] During that hearing, the Court indicated that Foss had been in state custody on state probation violations since July 2009, and was indicted on his federal charges in August 2010. [ Id., p. 9] The Court then stated:
Well, I will give him credit for all the time he has spent in custody on this charge. I think that this is going to be something for the Bureau of Prisons to work out, but they are going to have to - in fact, they will do what they are going to do in any event.
But, if he was in custody since 2009 on this charge, then the Bureau of Prisons will give him credit. But, I think it's more likely that he will have credit from July 29th of 2010, and the time from 2009 through July of 2010, or early August 2010 will run on the York PV.
[Record No. 1-3, pp. 9-10]
Counsel for Foss later clarified for his client that prior custody credits are calculated by the BOP, not the court:
Mr. Peruto: I will explain to the defendant, Judge. Even if you ordered the government to calculate that he was - a credit for ...