United States District Court, D. South Dakota, Southern Division
CHRISTOPHER L. RIVERS, Petitioner,
J.S. WILLIS, Warden, Respondent.
REPORT AND RECOMMENDATION
JOHN E. SIMKO, Magistrate Judge.
Petitioner, Christopher L. Rivers ("Rivers"), an inmate who is incarcerated at the Federal Prison Camp in Yankton, South Dakota, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The Respondent has filed a Response (Doc. 7), the Declaration of Marcus Boudreaux (Doc. 8), and the Declaration of Julie Groteboer (Doc. 9). Rivers filed a Reply (Doc. 10). The matter is now ripe for a decision.
The Court has taken judicial notice of the file in Rivers' underlying criminal conviction from the United States District Court, District of Kansas, 2:08-CR 20006-01 and his state court proceedings from Leavenworth County District Court Case No. 2004 CR 000222, 98-D-738, 01-D-178, and MCTR32039. See, Hood v. United States, 152 F.2d 431 (8th Cir. 1946) (federal District Court may take judicial notice of proceedings from another federal District Court); Matter of Phillips, 593 F.2d 356 (8th Cir. 1979) (proper for federal court to take judicial notice of state court pleadings); Green v. White, 616 F.2d 1054 (8th Cir. 1980) (Court of Appeals may take judicial notice of District Court filings).
The pending matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Judge Schreier's Standing Order dated March 18, 2010.
FACTUAL AND PROCEDURAL HISTORY
Rivers was in state custody before he was charged with the federal conviction which forms the basis of this § 2241 habeas corpus action. Because the time he spent in state custody is relevant to his current habeas corpus argument, it is recounted here.
On July 6, 2007, Rivers was arrested in Atchison, Kansas and transported to Atchison County Jail on charges of driving while his license was suspended, sale or possession with intent to sell opiates, obstruction of the legal process in a felony case, possession of drug paraphernalia, and traffic in drugs in a correctional facility. He was charged with these offenses in Atchison County District Court, Case No. 07-CR 341. The charges were dismissed on September 7, 2007. Atchison County held Rivers, however, on a warrant from Leavenworth County, warrant no. 01-D-178, 04-CR 000222, and 98-D-738. On September 10, 2007, Rivers was released from Atchison County to the Custody of Leavenworth County, Kansas Sheriffs Department. He was held there for failure to appear in Leavenworth County District Court case No. 2004-CR 000222. Rivers previously pled nolo contendere in that case, to charges including fleeing and attempting to elude a police officer, possession of depressant/stimulant/hallucinogenic/steroids, reckless driving, and driving while suspended. He was found guilty on September 28, 2004. Rivers was also being held by Leavenworth County for contempt; indirect (Case No. 98-D-738 and 01-D-178) and failure to appear-traffic (Case No. MCTR32039). On September 17, 2007, Rivers was released on bond from these charges.
On October 29, 2007, Rivers was sentenced in Leavenworth County District Court on Case No. 2004-CR 000222 to a 12 month term of imprisonment with work release privileges. On February 5, 2008, however, Leavenworth County authorities filed a motion to revoke his work release privileges after they became aware of his federal arrest warrant. Rivers' work release was revoked that same date.
Rivers was indicted on the federal charges which form the basis of this federal § 2241 habeas corpus case on February 1, 2008. Rivers appeared in federal court pursuant to a writ of habeas corpus ad prosequendum which was issued by Magistrate Judge David Waxse on February 19, 2008 for Rivers to appear in federal court on February 28, 2008. Rivers was detained on the writ until he was released from state custody on June 26, 2009. On June 5, 2009, the United States District Court for the District of Kansas, the Honorable Kathryn Vratil sentenced Rivers to 120 months imprisonment on the federal charges. The Judgment was silent as to whether Rivers' federal term of imprisonment should run concurrently or consecutively to any remaining state prison sentence(s), thereby rendering the federal sentence consecutive to Rivers' state sentence(s). Rivers was returned to Leavenworth County on June 22, 2009. On June 26, 2009, Rivers was released to the primary custody of the United States Marshals Service to begin service of his federal sentence. Rivers' current projected release date is May 10, 2016. This projected release date is premised upon Rivers' successful completion of the Residential Drug Abuse Program (RDAP).
On June 21, 2010, Rivers filed a Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255. On February 7, 2011, Judge Vratil denied the Motion. On October 23, 2011, the Tenth Circuit Court of Appeals affirmed. On February 5, 2012, Rivers filed a Request for Administrative Remedy within the BOP. His request was denied at the institutional and regional levels. His request was granted in part, however, at the central office level. Specifically, Rivers was awarded prior custody credit from October 29, 2008 (the date his state sentence expired) through June 25, 2009 (the date he was released to the United States Marshals Service). On April 23, 2013, Rivers moved to "Clarify the Judgment to Correct Federal Records" in the United States District Court, District of Kansas. That motion, which was denied by Judge Vratil on May 20, 2013, sought the same relief Rivers seeks pursuant to the instant motion pursuant to 28 U.S.C. § 2241. Rivers asserts the BOP has failed to calculate his sentence correctly. Specifically, Rivers asserts the remainder of the time he spent detained pursuant to the federal writ of habeas corpus ad prosequendum (February 27, 2008 through October 28, 2008) should also be credited toward his federal sentence. On April 11, 2014, Rivers filed the instant motion for habeas corpus pursuant to 28 U.S.C. § 2241.
The proper calculation of any federal prison term includes two crucial elements: (1) when the sentence begins; and (2) whether credit can be given for time spent in custody prior to the commencement of the sentence. Both of these determinations are made by the BOP after the federal sentence is imposed. United States v. Wilson, 503 U.S. 329, 333-36, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992). For federal inmates who committed offenses after November 1, 1987, both questions are ...