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Wearing v. Haynes

United States District Court, E.D. Arkansas, Eastern Division

April 28, 2015

RASHAD WEARING Reg. #XXXXX-XXX, Petitioner,
v.
ANTHONY HAYNES, Warden, FCI-Forrest City, Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INSTRUCTIONS

J. THOMAS RAY, Magistrate Judge.

The following Proposed Findings and Recommended Disposition ("Recommendation") have been sent to United States District Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (b) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

I. Background

Pending before the Court is a 28 U.S.C. ยง 2241 Petition for Writ of Habeas Corpus filed by Petitioner, Rashad Wearing ("Wearing"), [1] an inmate in the Federal Correctional Institution in Forrest City, Arkansas. Doc. 1. In his Petition, Wearing attacks the calculation of his sentence by the Bureau of Prisons ("BOP"). Before addressing Wearing's claim, the Court will review the complex procedural history of the case in state and federal court.

On September 25, 2001, Wearing was convicted of credit card fraud, in Virginia state court, and sentenced to five years of imprisonment, with all but one year suspended. On June 6, 2003, he was convicted of violating his probation and received a one-year "active sentence, " followed by probation. On November 11, 2003, he was again released to probation supervision. Doc. 9-1, at 7. [2]

On October 12, 2004, Wearing was arrested by Virginia state authorities for being a felon in possession of a firearm. At the time of his arrest, he had a pending state charge for violating his probation. Id . at 7-8; Doc. 2, at 7.

On October 27, 2004, Wearing was convicted of the state probation violation and received a sentence of three years and eleven months, with all but one year suspended. Doc. 9-1, at 7, 10; Doc. 2 at 7.

On December 8, 2004, while Wearing was incarcerated in a Virginia state prison serving the state sentence for violating his probation, a federal grand jury in the Western District of Virginia returned an indictment charging him with conspiring to distribute cocaine base. United States v. Wearing, W.D. Va. No. 3:04CR00092-8-NKM, doc. 3. The indictment identified the federal "offense date" as December 8, 2004. Id.

On December 29, 2004, pursuant to a writ of habeas corpus ad prosequendum, Wearing appeared in the United States District Court for the Western District of Virginia for his plea and arraignment. The same day: (1) the court entered an Order of Detention Pending Trial; and (2) Wearing was transferred from state custody to federal custody. Thereafter, he was held as a federal pretrial detainee in the Central Virginia Regional Jail ("CVRJ") in Orange, Virginia.[3] Id., docs. 57 & 61; Doc. 9-1, at 12-13 (USMS tracking records); see Doc. 1, at 4-5; Doc. 2, at 1-2, 7 & 9.

On January 27, 2005, the state firearms charge was nolle prossed. Doc. 9-1, at 8; Doc. 2, at 7.

On July 20, 2005, while Wearing remained a federal pretrial detainee in the CVRJ, awaiting trial on the federal charge, he satisfied his one year state sentence for violating his probation. Doc. 9-1, at 13 & 16; Doc. 19-2; Doc. 2 at 7.

On August 8, 2005, Wearing entered a guilty plea on the federal charge of conspiracy to distribute cocaine base. United States v. Wearing, supra, doc. 172. On June 27, 2006, judgment was imposed and he was sentenced to 262 months of imprisonment in the BOP. Doc. 9-1, at 18-19.

On June 23, 2008, the federal sentencing court issued an order reducing Wearing's sentence to 210 months, based on new sentencing guidelines for offenses involving crack cocaine. Id . at 25. On October 12, 2011, the federal sentencing court issued an order further reducing Wearing's sentence to 168 months based on the amended guidelines. Id . at 27.

The BOP calculated Wearing's 168-month federal sentence as commencing on the date it was imposed, June 27, 2006. The BOP also gave Wearing credit for 341 days of "jail" time from July 21, 2005 (the day after he satisfied his state sentence) to June 26, 2006 (the day before his federal sentence commenced). Based on this ...


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