United States District Court, E.D. Arkansas, Eastern Division
JAMES E. IVY #20294-076 PETITIONER
GENE BEASLEY, Warden, FCI Forrest City RESPONDENT
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.
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.
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. Doc. 12-2, Attachment 4 at 12-13.
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”). On May 11, 2016, the sentencing
court 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). 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.
23, 2016, Ivy was released from custody and began serving the
three year term of supervised release.
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supervised release was revoked, and he was sentenced to 21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.
October 5, 2017, Ivy initiated this § 2241 habeas
action. 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.
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.
reasons discussed below, this Court recommends that Ivy's
§2241 habeas Petition be dismissed, without prejudice.
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.
request for habeas relief, construed broadly, attacks both
the BOP's sentencing computation 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.
The BOP Did Not Abuse Its Discretion in Calculating ...