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Wotring v. Rivera

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

October 12, 2016

JAMES LEE WOTRING PETITIONER
v.
C.V. RIVERA, Warden, F.C.C. Forrest City, Arkansas RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to United States District Judge Brian S. Miller. 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 (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         FINDINGS AND RECOMMENDATION

         The record reflects that on November 5, 2009, petitioner James Lee Wotring (“Wotring”) entered the custody of the Missouri Department of Corrections (“MDC”) for parole violations in 04CR125751 and 04CR128091. See Document 8, Declaration of James D. Crook at 2. Wotring represents that on the same day, he was indicted in the United States District Court for the Eastern District of Missouri in 4:10CR18. See Document 1 at CM/ECF 5. He completed the term of imprisonment imposed for the parole violation in 04CR125751 on January 8, 2010, but he remained in the custody of the MDC for the parole violation in 04CR128091. See Document 8, Declaration of James D. Crook at 2.

         On January 20, 2010, the United States of America (“USA”) obtained custody of Wotring from the MDC pursuant to a writ of habeas corpus ad prosequendum. See Document 8, Declaration of James D. Crook at 2. He was called upon to answer the indictment in 4:10CR18. He eventually pleaded guilty in that case. On September 28, 2010, United States District Judge E. Richard Webber sentenced Wotring to eighty-five months in the custody of the Federal Bureau of Prisons (“BOP”). See Id. See also Document 8, Attachment 5. Wotring was then returned to the custody of the MDC to complete the term of imprisonment for the parole violation in 04CR128091.

         On October 4, 2010, Wotring's probation was revoked in 0511-CR06882. See Document 8, Declaration of James D. Crook at 2. Wotring was sentenced in that case to a term of ten years in the custody of the MDC. See Id.

         On April 6, 2011, an amended judgment was entered in 4:10CR18. See Document 8, Declaration of James D. Crook at 3. See also Document 8, Attachment 8. The amended judgment provided, in part, that the eighty-five month term of imprisonment imposed by Judge Webber in 4:10CR18 should “run concurrently to case[s] ... 0611-CR08438-01, 0511-CR06882, 04CR-125751, and 04CR-128091.” See Document 8, Attachment 8 at 2. Three months later, the BOP designated the MDC's facilities as the place for service of Wotring's sentence in 4:10CR18. See Document 8, Declaration of James D. Crook at 3.

         On May 11, 2015, Wotring completed or was otherwise released from his state sentences. See Document 8, Declaration of James D. Crook at 3. He was released to the custody of the BOP to continue service of his sentence in 4:10CR18. See Id. After he entered federal custody, the BOP prepared a sentence computation. See Document 8, Attachment 11. It reflected that Wotring's sentence in 4:10CR18 was deemed to have commenced on September 28, 2010, i.e., the day it was imposed by Judge Webber, and Wotring was given no “prior credit time.” See Document 8, Attachment 11 at 2.

         Wotring found the BOP's sentence computation unacceptable and began the grievance process in an attempt to obtain credit on his sentence in 4:10CR18 for the 327 day period from November 5, 2009, the date of indictment in 4:10CR18, up to September 28, 2010, the date he was sentenced in that case. He did so by filing a grievance at the institutional level, which was denied. Although he could have appealed the adverse decision to the regional or central office levels, he did not do so. See Document 8, Declaration of James D. Crook at 5.

         Wotring commenced the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. In the petition, he challenged the calculation of his sentence in 4:10CR18. He maintained that he is entitled to credit on the sentence for the 327 day period from November 5, 2009, up to September 28, 2010. He appeared to offer three reasons in support of his assertion. First, Judge Webber ordered that the sentence be credited for the 327 day period. Second, Wotring was in federal custody during the 327 day period. Last, the BOP had previously notified him that he would receive credit for the 327 day period, but “the BOP quickly changed this jail credit from 327 days to [zero]” when he entered federal custody. See Document 1 at CM/ECF 5.

         Respondent C.V. Rivera (“Rivera”) filed a response to the petition and maintained that Wotring is not entitled to relief for two reasons. First, Wotring failed to exhaust his administrative remedies. Second, the 327 day period from November 5, 2009, up to September 28, 2010 could not be applied to his sentence in 4:10CR18 because the period had been applied to his state parole violation sentences.[1]

         The undersigned begins an analysis of Wotring's petition by addressing Rivera's exhaustion argument, which focuses on the procedure Wotring used prior to arriving in federal court. See State of Missouri v. Bowen, 813 F.2d 864 (8th Cir. 1987). The doctrine requires Wotring to have completely exhausted his administrative remedies before filing his petition. See United States v. Chappel, 208 F.3d 1069 (8th Cir. 2000).

         Wotring filed a grievance at the institutional level challenging the BOP's refusal to credit his sentence in 4:10CR18 for the 327 day period from November 5, 2009, up to September 28, 2010. The grievance was denied at that level. In order to have completely exhausted his administrative remedies, he was required to have appealed the decision to the regional and central office levels. It is clear that he did not do so. Given his failure to appeal the decision, he did not completely exhaust his remedies before commencing this case. His petition should be dismissed because he failed to do so.[2]

         Rivera alternatively maintains that Wotring's petition warrants no relief because he is not entitled to credit on his sentence in 4:10CR18 for the 327 day period from November ...


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