Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Graewe v. English

United States District Court, D. Kansas

March 18, 2019

HARTMUT GRAEWE, Petitioner,
v.
NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is incarcerated with the Federal Bureau of Prisons (“BOP”) at USP-Leavenworth in Leavenworth, Kansas (“USPL”). Petitioner challenges the calculation of his federal sentence. The Court finds that the petition is subject to dismissal as successive under 28 U.S.C. § 2244(a).

         I. Facts

         On April 7, 1983, the Honorable Judge Manos of the Northern District of Ohio sentenced Petitioner on the following guilty verdicts: Count 1 - Conspiring with Others in Conducting an Enterprise of Racketeer Influenced and Corrupt Organizations, in violation of 18 U.S.C. § 1961 and § 1962(d); Count 2 - Operating a Continuing Criminal Enterprise, in violation of 21 U.S.C. § 848; Counts 3 through 21 - Interstate Travel in Aid of Racketeering, in violation of 18 U.S.C. § 1952(a) and § 2; Count 35 - Possessing and Aiding and Abetting in the Possession of, with Intent to Distribute, a Schedule II Controlled Substance, to-wit, cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Counts 40 through 48, 50, 51, 53, 54, 55, 57 and 58 - Use of Telephone to Facilitate Distribution of Schedule I Controlled Substance, to-wit, marihuana, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. (Doc. 1-1, at 1-2, and Doc. 3- 1, at 10-11) (Judgment and Commitment Order for No. CR82-119). Petitioner was sentenced as follows:

Twenty (20) years on Count 1, to run consecutively to all other Counts, except Count 2; to run concurrently with Count 2. Life Imprisonment on Count 2.
Five (5) years on each of Counts 3 through 21, to run consecutively to each other, but concurrently with Count 2.
Fifteen (15) years on Count 35, to run consecutively to sentences imposed on Counts 1, 3 through 21, 40 through 48, 50, 51, 53, 54, 55, 57 and 58, but concurrently with Count 2, and three (3) years Special Parole Term.
Four (4) years on each of Counts 40 through 48, 50, 51, 53, 54, 55, 57 and 58, to run consecutively to each other, but concurrently with Count 2.

Id.

         In 1985, Petitioner was transferred to the U.S. Penitentiary, Marion, Illinois, and was subsequently advised by staff that his conviction imposed pursuant to 21 U.S.C. § 848 (1976) resulted in a life sentence that is not eligible for parole. Petitioner alleges that the BOP illegally converted his 10 year to life sentence with the possibility of parole, into a life sentence without the possibility of parole. Petitioner filed the instant Petition under § 2241, asking this Court to find that his substantive and procedural due process rights were violated, and to direct the BOP to commence mandatory parole pursuant to 28 C.F.R. § 2.53(A) (1976).

         Petitioner alleges that the sentence on Count 2 was imposed pursuant to 21 U.S.C. § 848 (1976), arguing that parole-eligible convictions under that statute were subject to the promulgated regulations encoded at 28 C.F.R. §§ 2.53, 2.56, and 2.57 (1976). He argues that the sentence on Count 2 consisted of a sentence of 10 years to life with the possibility of parole after service of the 10-year mandatory minimum. Petitioner points to the statement by the sentencing judge that his sentence on Count 35 included a special three-year parole term. Petitioner alleges that all other sentences that were imposed on that date have expired as they ran concurrently with Count 2, thus entitling him to mandatory parole.

         II. 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. ยง 542. Respondent acknowledges that Petitioner has ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.