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Harper v. English

United States District Court, D. Kansas

November 7, 2017

DON ALTON HARPER, Petitioner,
v.
NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent.

          MEMORANDUM AND ORDER

          SAM A. CROW, U.S. Senior District Judge

         Petitioner, a pro se prisoner in federal custody, challenges the calculation of his federal sentence under 28 U.S.C. § 2241. The Court issued an Order to Show Cause (Doc. 7), Respondent filed an Answer and Return (Doc. 12), Petitioner filed a Traverse (Docs. 10, 13), and the matter is ready for resolution. The Court finds that Petitioner does not allege facts establishing a federal constitutional violation and denies relief.

         I. Background

         Petitioner is incarcerated with the Federal Bureau of Prisons (“BOP”), and is currently designated for service of his federal sentence at the Residential Reentry Center (“RRC”) GEO Reentry, Inc., located in Leavenworth, Kansas.[1] Petitioner was sentenced in the District of Kansas on March 28, 1994, and is serving an aggregate 341-month term of imprisonment for Bank Robbery in violation of 18 U.S.C. § 2113 and Use and Carry of a Firearm During the Commission of a Crime of Violence in violation of 18 U.S.C. § 924(c). (Doc. 12-1, at 19-20.) Petitioner has a projected release date of January 16, 2018, via good conduct time release. Id. at 18.

         II. Facts

         On February 2, 1993, Petitioner was arrested by the Federal Bureau of Investigation in Denver, Colorado, for bank robbery, and subsequently stood trial in the Western District of Missouri.[2] On November 16, 1993, Petitioner was found not guilty and the Western District of Missouri entered a judgment of acquittal on November 22, 1993. United States v. Tyler, et al., 4:92-cr-00196-DBB-2 (W.D. Mo.); Doc. 12-1, at 88.

         On November 16, 1993, the USMS relinquished custody of Petitioner to the District of Kansas pursuant to an indictment issued in United States v. Harper, 2:93-cr-20069-JWL-01 (D. Kan.). (Doc. 12-1, at 91.) Petitioner remained in continuous federal custody for both his Missouri and Kansas federal cases.

         The jury in Petitioner's Kansas federal case found him guilty of Bank Robbery, and Use and Carry of a Firearm During the Commission of a Crime of Violence on March 28, 1994. See Doc. 12-1, at 94. Petitioner was sentenced to a 341-month aggregate term of imprisonment. Id. at 96. On June 26, 1995, after filing multiple appeals, Petitioner was re-sentenced in his Kansas federal case, and was again sentenced to a 341-month aggregate sentence. Id. at 101-02.

         III. Discussion

         1. Exhaustion

         Generally, a federal prisoner must exhaust available administrative remedies before commencing a habeas corpus petition under 28 U.S.C. § 2241. Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). The BOP's four-part administrative remedy program is codified at 28 C.F.R. § 542. Respondent acknowledges that Petitioner has exhausted his administrative remedies with respect to the issues presented in his Petition. (Doc. 12, at 4; Doc. 12-1, at 3.)

         2. Standard of Review

         To obtain habeas corpus relief, an inmate must demonstrate that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

         3. ...


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