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Ivy v. Beasley

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

March 5, 2018

JAMES E. IVY #20294-076 PETITIONER
v.
GENE BEASLEY, Warden, FCI Forrest City RESPONDENT

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge James M. Moody, Jr. 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 the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

         I. Background

         Pending before the Court is a § 2241 Petition for a Writ of Habeas Corpus filed by Petitioner, James E. Ivy (“Ivy”), who is currently incarcerated at the Federal Correctional Institution in Forrest City, Arkansas. Doc. 1. Before addressing Ivy's habeas claim, the Court will review the relevant procedural history of the case.

         On May 17, 2005, Ivy was indicted on one count of being a felon in possession of a firearm. United States v. Ivy, Western District of Tennessee No. 2:05-CR-20188-01-JPM (“Ivy I”). Doc. 12-1 at 1-2. A jury found Ivy guilty, and on March 7, 2006, he was sentenced to 18 years and 5 months, with five years of supervised release to follow.[1] Doc. 12-2, Attachment 4 at 12-13.

         On June 19, 2014, Ivy filed a pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Ivy v. United States, Western District of Tennessee No. 2:14-2475-JPM-dkv (“Ivy II”).[2] On May 11, 2016, the sentencing court[3] ruled that Ivy was entitled to § 2255 relief and vacated his March 7, 2006 sentence because a prior attempted burglary conviction, used as a predicate conviction to qualify Ivy as an armed career offender, was no longer considered a violent felony after Johnson v. United States, 135 S.Ct. 2551 (2015).[4] On May 12, 2016, the sentencing court entered an Amended Judgment that reduced Ivy's original sentence to “time served, effective May 23, 2016.” His term of supervised release was reduced to three years. Doc. 12-2 at 18-24, 26-27. Ivy did not appeal the Amended Judgment.[5]

         On May 23, 2016, Ivy was released from custody and began serving the three year term of supervised release.

         On June 27, 2017, Ivy was arrested and charged with violating the terms of his supervised release imposed by the Amended Judgment in Ivy II. On July 25, 2017, Ivy's supervised release was revoked, and he was sentenced to 21 months imprisonment, with no supervised release to follow. Doc. 12-2 at 35, 37. Ivy did not appeal the Judgment revoking his supervised release.[6]

         On October 5, 2017, Ivy initiated this § 2241 habeas action.[7] Doc. 1. Ivy seeks a credit on his 21-month revocation sentence for “overserved time” in connection with the original sentence of conviction imposed in Ivy I. § 924(e)(2)(B). In Welch v. United States, 136 S.Ct. 1257 (2016), Johnson was held to be a substantive decision applicable retroactively to cases on collateral review.

         On January 30, 2018, Respondent Gene Beasley filed a Response requesting the dismissal of Ivy's Petition. Doc. 12. On February 15, 2018, Ivy filed two replies objecting to the dismissal. Docs. 14-15.

         For the reasons discussed below, this Court recommends that Ivy's §2241 habeas Petition be dismissed, without prejudice.

         II. Discussion

         In connection with the sentence Ivy is now serving for violating his supervised release, the Bureau of Prisons (“BOP”) calculated his sentence as follows: (1) On July 25, 2017, Ivy's supervised release was revoked and he was credited, on that date, with beginning his 21-month revocation sentence; (2) The BOP gave him prior custody credit, from June 27, 2017 through July 24, 2017, and applied that credit against his 21-month revocation sentence; and (3) This resulted in the BOP projecting a release date of January 4, 2019. Doc. 12-1 at 2-3.

         Ivy's request for habeas relief, construed broadly, attacks both the BOP's sentencing computation[8] and the sentencing court's May 11, 2016 resentencing, after it granted his § 2255 Motion, and the July 25, 2017 sentence it imposed based on Ivy's violation of the terms of his supervised release. As explained below, Ivy's § 2241 claims are either without merit or procedurally unavailable to him.

         A. The BOP Did Not Abuse Its Discretion in Calculating ...


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