United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
Odis Sowell, Jr., is an inmate confined at the Federal
Correctional Institution (“FCI”)-Manchester,
located in Manchester, Kentucky. Proceeding without a lawyer,
Sowell has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, in which he challenges the
computation of his sentence by the Bureau of Prisons
(“BOP”). [R. 1] The Respondent has filed a
response to Sowell's petition. [R. 12] Although a prior
Court Order provided Sowell with an opportunity to file a
reply in further support of his petition [R. 8], no reply was
filed and the time for doing so has expired. Accordingly,
this matter is fully briefed and ripe for review.
1991, Sowell was convicted in the District of Columbia
(“DC”) Superior Court in No. F4601-91 of armed
robbery and attempted robbery. [R. 1 at p. 2] Sowell was
sentenced to a total term of seven to 21 years in prison.
[Id. at p. 5-6] On October 30, 1996, Sowell was
released on parole in No. F4601-91. [Id. at p. 6]
According to documentation submitted by Respondent (and not
disputed by Sowell), when Sowell was released on parole in
No. F4601-91, 5, 652 days remained on his sentence, with a
full-term expiration date of April 21, 2012. [R. 12 at p. 2;
R. 12-1, Exhibit A: Giddings Decl. at p. 2, Att. 1: DC-DOC
Inmate Record, Attachment 2: DC-DOC Fact Sheet No. 2 - July
15, 1991, Attachment 3: Sentence Monitoring Independent
2, 1997, a warrant was issued for Sowell's arrest for
violating his parole in No. F4601-91. [R. 12] The warrant
states that, wherever found in the United States, Sowell was
to be returned to the custody of the District of Columbia
Department of Corrections, “except if said
parolee is already in the custody of federal, state or
District of Columbia authorities, do not execute this
warrant. Place a detainer and notify the D.C. Board of
Parole. Also, if another criminal warrant has been issued for
this parolee, execution of such criminal warrant shall
take precedence.” [R. 12-2, Exhibit A: Giddings
Decl. at p. 2-3, Attachment 4: DC Board of Parole Warrant
PE-31891-97 (emphasis in original)]
September 26, 1997, Sowell was arrested for robbery in the
District of Columbia and charged in the DC Superior Court in
No. F7760-97. [R. 12 at p. 3] As directed by the July 2, 1997
warrant, a detainer was lodged with the DC authorities for
Sowell's parole violation in No. F4601-91. [Id.
at p. 3] On November 1, 1997, Sowell was sentenced in No.
F7760-97 to a term of imprisonment of 4 to 20 years.
[Id. at p. 3] After sentencing, Sowell was released
to the custody of the DC Department of Corrections.
[Id.] Sowell was transferred to BOP custody on July
12, 2001. His sentence in No. F7769-97 was computed based on
the documentation provided by the DC Department of
Corrections and Sowell was given a full-term date in No.
F7769-97 of September 25, 2017. [Id.]
January 21, 2003, after reviewing Sowell's parole file in
No. F4601-91, the United States Parole Commission
(“USPC”) issued a letter to Sowell stating that
the USPC had decided to maintain Sowell's detainer
warrant. [Id. at p. 4] After a hearing on September
22, 2004, the USPC issued a Notice of Action
(“NOA”) on October 15, 2004 revoking Sowell's
parole in Case No. F4601-91 and stating that none of the time
Sowell spent on parole in that case shall be credited. [R. 12
at p. 4; R. 12-1, Giddings Declaration at p. 4, Attachment 9:
U.S. Parole Commission Notice of Action - October 15, 2004]
Specifically, this NOA states: “Revoke parole on the
violator term. None of the time spent on parole shall be
credited. Execute the U.S. Parole Commission's
warrant currently lodged as a detainer upon your release from
the new sentence. Upon execution of the warrant, the
unexpired portion of your original D.C. Code sentence shall
commence.” [Id. (emphasis added)] The NOA
further indicated that the matter would “continue for a
reconsideration hearing on your current sentence and violator
term on September 2007 after the service of 36 months”
from the September 22, 2004 hearing date. [Id.]
indicated in the October 15, 2004 NOA, a hearing was held on
September 5, 2007. [Id. at p. 4, Attachment 10: U.S.
Parole Commission Notice of Action - September 18, 2007] As a
result of this hearing, the USPC issued a NOA on September
18, 2007, stating that the matter would “[c]ontinue to
a presumptive parole August 25, 2008 after service of 131
months on the new sentence. Parole on the violator term as
the same date.” [Id.] On January 31, 2008, the
USPC issued another NOA, stating that there is “[n]o
Change in presumptive parole date of August 25, 2008 on the
new sentence and on the violator term and parole effective
August 25, 2008 on the new sentence and on the violator
term.” [Id. at p. 4, Attachment 11: U.S.
Parole Commission Notice of Action - January 31, 2008]
August 26, 2008, the USPC issued Sowell's Certificate of
Parole in No. F7760-97. [Id. at p. 4, Attachment 12:
U.S. Parole Commission Certificate of Parole] This
Certificate orders that Sowell “be paroled on August
26, 2008 and remain under parole supervision through
September 25, 2017.” [Id.] However, the
Certificate refers only to “Docket/Case Number
F7760-97.” It is silent as to the time remaining on
Sowell's sentence in No. F4601-91. In addition, the
October 15, 2004 NOA revoking Sowell's parole in No.
F4601-91 and discrediting Sowell's time spent on parole
since October 31, 1996 further provided that the USPC's
warrant would be lodged as a detainer upon Sowell's
release in No. F7760-97 and that, upon execution of the
warrant, the unexpired portion of Sowell's sentence in
No. F4601-91 would commence. [Id. p. 4, Attachment
9: U.S. Parole Commission Notice of Action - October 15,
2004] As discussed above, when Sowell was originally released
on parole on October 30, 1996 in No. F4601-91, 5, 652 days
remained on his sentence. Thus, Sowell's service of the
time remaining on his original sentence in No. F4601-91 did
not commence until he was released in No. F7760-97.
Sowell's petition indicates that he does not understand
how his projected release/termination of supervision date
changed from September 25, 2017, to February 12, 2024, [R. 1
at p. 6], this is because Sowell was serving two terms based
on two separate convictions. Sowell is correct that his
projected release/termination of supervision date in No.
F7760-96 was September 25, 2017. However, as explained by the
documents submitted by Respondent (and not disputed by
Sowell), because Sowell's parole was revoked in No.
F4601-91 and he was not credited for time spent on parole
from October 31, 1996, through August 24, 2008, Sowell's
full term date in No. F4601-91 became February 14, 2024, or
5, 652 days after his release on parole in No. F7760-97. [R.
12 at p. 4-5]
September 4, 2013, the USPC received a letter from the United
States Probation Office in the Middle District of North
Carolina stating that, on August 22, 2013, Sowell surrendered
to authorities after being charged with Felony Attempted
Robbery with a Dangerous Weapon in Durham, North Carolina.
[R. 12-2, Giddings Declaration at p. 5, Attachment 15: U.S.
Probation Office Violation Report - Warrant Requested -
September 4, 2013] Accordingly, the U.S. Probation Office
requested that a warrant be issued on Sowell. [Id]
This warrant was issued by the USPC on September 6, 2013.
[Id. at p. 5, Attachment 16: Warrant D.C. Code
Offender - September 6, 2013] According to this warrant,
Sowell was sentenced by the DC Superior Court “to serve
a sentence of 21 Years (D.C. GTCA); 5286 Days (Parole
Violator Term) for the crime of Armed Robbery; Attempted
Robbery; Robbery and was on August 26, 2008 released on
parole from Raleigh CCM with 5283 days remaining to be
served” and that reliable information had been
presented to the USPC that Sowell has violated one or more
conditions of his release. [Id.] The warranted was
executed by the United States Marshals Service on May 29,
2014, while Sowell was housed in the Durham County Jail.
[Id. at p. 5, Attachment 16: Warrant D.C. Code
Offender - September 6, 2013]
September 4, 2014, the USPC issued an NOA stating that, as a
result of an August 12, 2014 hearing, Sowell's parole was
revoked and his sentence shall continue to the expiration of
the sentence. [Id. at p. 5, Attachment 17: U.S.
Parole Commission Notice of Action - September 4, 2014]
Specifically, the NOA states: “Revoke parole. All of
the time spent on parole shall be credited. Continue to
expiration.” [Id.] To the extent that
Sowell's petition suggests that the reference to
“parole” in the September 2014 NOA should be
construed to effectively re-instate the previously
discredited time that Sowell spent on his first parole in No.
F4601-91 beginning in October 30, 1996, there is simply
nothing in the NOA that supports such a broad interpretation.
Rather, the reference to “parole” in the
September 4, 2014 NOA refers to the parole that Sowell was on
when the September 6, 2013 warrant was issued for his
violation of his terms of release.
further explains that, pursuant to the NOA dated September 4,
2014, the BOP completed an independent computation using the
date the warrant was executed to the full term date of the
sentence at the time Sowell was released from custody on
August 26, 2008. [R. 12 at p. 5] Again, Sowell was serving
un-aggregated terms in No. F4601-91 and, at the time of his
August 26, 2008 release on parole, 5, 652 days remained on
the sentence (or until February 14, 2024). While the
September 4, 2014 NOA ordered that all of Sowell's time
spent on parole since his August 26, 2008 release on parole
be credited, it also ordered that the sentence continue to
expiration. After crediting the time spent on parole, a total
of 3, 549 days remained to be served in No. F4601-91,
resulting in a projected release date of December 17, 2020.
[R. 12-1, 12-2, Giddings Decl. at p. 6, Attachment 18:
Sentence Monitoring Independent Sentence Computation;
Attachment 19: Sentence Monitoring Computation Data]
Court has carefully reviewed Sowell's petition and the
documents submitted by both Sowell and Respondent explaining
the basis of the calculation of Sowell's sentence and
concludes that the BOP has properly calculated Sowell's
sentence and projected release date. Accordingly,
Sowell's § 2241 habeas petition does not present a
basis for relief, thus his petition will be denied.
it is OR ...