United States District Court, D. South Dakota, Southern Division
ORDER AND DISMISSING CASE
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Benjamin Anthony Johnson is currently incarcerated at the
Federal Prison . Camp in Yankton, South Dakota. Johnson
brings this habeas corpus action pursuant to 28 U.S.C. §
2241, in order to challenge the calculation of his sentence
in United States v. Flenory, et al, No.
05-cr-80955-AC-RSW-11 (E.D. Mich. 2005). Johnson seeks credit
under 18 U.S.C. § 3585(b) for 413 day he spent in
custody before he "physically entered a [f]ederal
[p]rison." Doc. 1. The 413 days include those between
November 17, 2008, his sentencing date, and January 4, 2010,
the date he alleges he entered a federal prison. For the
reasons discussed below, his petition is screened and
was part of the "Black Mafia Family, " a large
cocaine distribution conspiracy based in Detroit. See
United States v. Johnson, 371 Fed.Appx. 631, 633 (6th
Cir. 2010). In 2005, he was indicted by a federal grand jury
for conspiring to distribute five kilograms or more of
cocaine in violation of 21 U.S.C. §§ 841 and 846;
for possession with intent to distribute more than 500 grams
of cocaine in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1); and for conspiracy to launder monetary
instruments in violation of 19 U.S.C. §§ 1956(a)(1)
and 1956(h). Id. In 2007, Johnson pled guilty to
conspiracy to distribute five or more kilograms of cocaine
and to conspiracy to launder monetary interests. Id.
preparation for sentencing, the United States Probation
Office prepared a presentence investigation report.
Id. The presentence report concluded that
Johnson's offense level was 38- a number two levels
higher than the offense level computed by the plea agreement,
as Johnson proved ineligible for the two-level safety valve
reduction of Section 2D 1.1 (b)(9) of the Sentencing
Guidelines. Id. Johnson was not eligible for that
reduction, according to the Probation Office, because he was
a manager or leader of others involved in the offense and
because he had more than one criminal history point.
Id. Johnson's advisory guidelines range, based
on an offense level of 38 and a criminal history category of
II, was 262 to 327 months of imprisonment. Id.
the presentence report was submitted, the district judge held
a sentencing hearing on May 12, 2008. Doc. 1-5. At the
hearing, Johnson's lawyer argued that Johnson should get
credit for the time he served in a state prison during the
pendency of his federal case. Id. at p. 5. The
district judge initially denied the request but then decided
that Johnson's lawyer should be given an opportunity to
brief the matter. Id. at p. 8. The district judge
deferred the sentencing hearing and heard arguments from both
second sentencing hearing was held on November 17, 2008. Doc.
1-6. At that hearing, the district judge sentenced Johnson to
150 months in prison, which was to begin that day.
Id. at p. 3. The district judge further clarified
that "The sentence commences today, but any time he has
to stay with the State he gets credit against the 150
months[.]" Id. at 4. At the end of the hearing,
Johnson himself asked that his plea agreement be set aside
and that he be allowed to proceed to trial, but the district
judge denied Johnson's request and held fast to the
sentence. Id. at 6.
amended judgment was entered in October 2, 2009. Flenory,
et al, No. 05-cr-80955-AC-RSW-11, at Doc. 1243. The
purpose of the amended judgment was to "clarify the
federal sentence is to be served concurrent with the state
sentence." Id. The amended judgment specified
that he "should receive federal credit retroactively
from November 14, 2008." Id.; see Johnson v.
Baird, No. 16-cv-00235-CJP, Doc. 44 (S.D. Ill. 2016).
time his federal sentence was imposed, Johnson was in the
custody of the Michigan Department of Corrections.
Id. He had been sentenced in July 2004 to 27 months
imprisonment on state drug charges. Id. He was
paroled in April 2005, but violated his parole shortly
thereafter. Id. He received a sentence on the parole
violation of 42 months to 7 years imprisonment on the first
count and of 36 months to 30 years on the second count.
Id. He was serving the parole violation sentence
when his federal sentence was imposed. Id.
appealed his conviction and his sentence, but the Sixth
Circuit rejected that challenge and affirmed his conviction
on April 6, 2010. See United States v. Johnson, 371
Fed.Appx. 631, 633 (6th Cir. 2010).
brought his first § 2241 petition on March 4, 2016.
Johnson v. Baird, 3:16-cv-00235-CJP (S.D. 111.
2016). Johnson sued the Warden of United States Penitentiary
in Marion, Illinois alleging that the Bureau of Prisons had
not properly calculated his past incarceration credit and
thus that he was being held improperly in federal prison.
Id. at Doc. 1. Johnson claimed in that lawsuit that
he was entitled to credit for 1, 530 days, representing the
period from October 27, 2005, to January 4, . 2010.
Id. Johnson's petition was dismissed with
prejudice. Id. at Doc. 44. First, the court found
that Johnson failed to exhaust his administrative remedies
with the Bureau of Prisons. Second, the court found that,
even if Johnson had exhausted his administrative remedies, 18
U.S.C. § 3585(b) provides that credit on a federal
sentence can only be given for pretrial detention time
"that has not been credited against another
sentence." Id. Johnson received credit on his
federal sentence from the date of his arrest on the federal
warrant, October 26, 2005, to January 18, 2006, when he was
returned to the primary custody of the state. Id
Johnson also received credit on his federal sentence for the
time beginning on the day on which it was imposed, November
14, 2008. Id. The time between was credited against
his state of Michigan parole violation sentence and therefore
could not be credited to his federal sentence. Id.
filed a second § 2241 petition on September 13, 2016, in
the Southern Division of Illinois, where he attempted to
challenge his conviction under § 2241. See Johnson
v. Powers, No. 16-cv-01028-DRH, Doc. 5 (S.D. Ill. 2016).
He asserted three claims: (1) "that the United States
breached Section 1B1.8 of the United States Sentencing
Guidelines when it used some of the information Johnson
provided the Government to calculate Johnson's relevant
drug quantity for sentencing purposes; (2) that there were
other errors in the relevant drug quantity calculation and
criminal history calculation in the Probation Office's
presentence investigation report; and (3) the Michigan
sentencing judge erred in applying a managerial role
enhancement to Johnson's sentence." Id. at
Doc. 5. Johnson's petition was dismissed with prejudice,
because the claims in Johnson's § 2241 petition were
not proper claims under § 2241.
28 U.S.C. § ...