Talouzi v. Cauley, No. 0:2009cv00095 - Document 6 (E.D. Ky. 2010)
Court Description: MEMORANDUM OPINION & ORDER: (1) Petition 2 for writ of habeas corpus is denied; (2) Granting 3 MOTION to Expedite filed by Basim Ali Talouzi; (3) Action dismissed sua sponte from Court's active docket; (4) Judgment be entered contemporaneously with MO&O in favor of Respondent. Signed by Judge Henry R. Wilhoit, Jr. on 1/11/10.(CMR)cc: COR, Petitioner via US Mail
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NOT RECOMMENDED FOR PUBLICATION OR CITATION UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION at ASHLAND CIVIL ACTION NO. 0:09-CV-00095-HRW BASIM ALI TALOUZI VS: PETITIONER MEMORANDUM OPINION AND ORDER E.K. CAULEY, Warden RESPONDENT **** **** **** **** **** Basim Ali Talouzi, a prisoner currently confined in the Federal Correctional Institution in Ashland, Kentucky, has submitted apro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2241, and has now paid the District Court filing fee of$5.00. The Petition is currently before the Court for screening. 28 U.S.C. § 2243; Harper v. Thoms, 2002 WL 31388736, *1 (6th Cir. 2002).1 For the reasons set forth below, the Petition will be denied and this cause of action dismissed. CLAIMS Petitioner Talouzi claims that he is being denied credit for his good conduct, despite being eligible under 18 U.S.C. 3584(c) and Johnson v. United States, 529 U.S. 694 (2000). He has asked the Court to direct the Federal Bureau of Prisons to follow this law and award him the credit. 1 As this litigant is appearing pro se, his pleadings are held to less stringent standards than those drafted by attorneys. Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). During screening, the allegations are taken as true and liberally construed in his favor. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001); see also 28 U.S.C. § 1915A(b). But the Court may dismiss a Petition at any time, or make any such disposition as law and justice require, if it detennines that the Petition fails to establish adequate grounds for relief. Hilton v. Braunskill, 481 U.S. 770,775 (1987). Petitioner also asks the Court to expedite its consideration of this case, on the ground that he is scheduled to be released from his sentence on February 26,2010, unless he is given good conduct credit so as to move the release date nearer. Petitioner states that under the statute the Director ofthe Bureau of Prisons ("BOP") is authorized to use his discretion to award up to 54 days credit for good conduct per year, but Talouzi has, wrongly, not been considered for this award. As to the underlying facts, Petitioner alleges that on July 17,2007, he completed a 120-month term of imprisonment handed down by the United States District Court for the Southern District of West Virginia and began a five-year period of supervised release. United States v. Talouzi, S.D. W.Va. No. 5:98-CR-0173-01. On March 31, 2009, the trial court found that Talouzi had violated terms of his supervised release, revoked the supervised release, and sentenced him to a 12-month term of imprisonment, to be followed by a 3-year period of supervised release. After beginning service of that 12-month sentence with the BOP, Talouzi initiated an administrative request for up to 54 days of the good conduct credit provided in 18 U.S.C. § 3624. He was denied, and he alleges that he appealed that decision to exhaustion. The attached documents which were exchanged in the administrative proceeding, Administrative Remedy No. 540629, reveal that the BOP's position was that the Section 3624 credit is not available to him, as he is serving only a one-year sentence, and Section 3624(b) limits good conduct awards to only "a prisoner who is serving a term of imprisonment of more than I year ...." § 3624(b)(1). The Petitioner countered, then and now in this action, that his current one-year term of imprisonment should be added to the original sentence to form an aggregate sentence, which is well beyond a year and thereby makes his eligible for the good conduct credit. He purportedly relies upon 18 U. S.c. 3584(c), directing that an aggregate be used in calculating multiple terms ofimprisonment, 2 and Johnson v. United States, 529 U.S. 694 (2000), in which the Supreme Court purportedly calls for attributing "post-conviction penalties to the original conviction." Record No.2 at 4 (quoting Johnson, 529 U.S. at 701). DISCUSSION The Court begins with the statues upon which the Petitioner and the BOP rely. It is true that 18 U.S.c. § 3624. Release of a prisoner, provides for the BOP to award credit for good conduct as follows: (b) Credit toward service of sentence for satisfactory behavior. - ...[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service ofthe prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to a determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations.... 18 U.S.C. § 3624(b)(1). Thus, the plain language of the statute limits the award of good conduct time to those who have more than one year to serve and who have exemplary conduct with regard to prison disciplinary regulations. With a sentence ofless than a year, the instant Petitioner was and is simply ineligible for consideration for the credit. There is no error in the BOP's refusal to award Talouzi the credit. With regard to the other statute, 18 U.S.c. § 3584. Multiple sentences of imprisonment, it is true that since October 12, 1984, this statute, as its name implies, has provided certain rules for treating consecutive and concurrent sentences. The statute essentially directs the sentencing Court and the BOP on whether to run the sentences consecutively and concurrently and it includes (b) 3 Factors to be considered in imposing concurrent or consecutive terms- -. Finally, in the last subsection, the statute provides: (c) Treatment of multiple sentences as an aggregate.- - multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment. 18 U.S.C. § 3584(c). Thus, it is also true that, regardless of the consecutive or concurrent nature of two or more sentences to be served, by statute, the terms of imprisonment "shall be treated for administrative purposed as a single, aggregate term." However, where the two sides have differed to date is on whether Talouzi has multiple sentences of imprisonment to serve. Petitioner claims that his 12-month sentence for violating supervised release must be aggregated with the original sentence, thereby arriving at a sentence much longer than the violator term of less than a year and making him eligible for the Seciton 3624(b) credit. The BOP has countered that Talouzi does not have multiple sentences to serve. Petitioner was discharged from his original sentence in 2007, and now his 12-month violator term "is the only sentence you are serving." The Court finds no fault in the law or the logic of the BOP. Statute 18 U.S.C. § 3584, Multiple sentences of imprisonment, is not called into play because the Petitioner does not have multiple sentences of imprisonment. A sole term of imprisonment cannot be aggregated with itself or with another term which the same prisoner finished years ago. Unfortunately for the Petitioner, there is simply no support for his position. Talouzi's arguments to the contrary, Johnson v. United States, 529 U.S. 694 (2000) is inapposite. Johnson dealt with a question arising from a change in the law, specifically in 18 U.S.C. § 3583, not at issue herein, after the Sentencing Reform Act of 1984. That legislation replaced parole 4 supervised by the U.S. Parole Commission with supervised release supervised by the sentencing court. The question in Johnson was whether another term of supervised release could be imposed after revocation of an initial supervised release term, and the Supreme Court decided that it can. In short, this Court finds that the instant Petitioner has failed to state a claim upon which this Court may grant relief. CONCLUSION Accordingly, IT IS ORDERED as follows: (1) Petitioner Basim Ali Talouzi's Petition for a Writ of Habeas Corpus [Record No.2] is DENIED. (2) Talouzi's Motion for an Expedited ruling [Record No.3] has been GRANTED. (3) This action is DISMISSED, sua sponte, from the Court's active docket. (4) Judgment shall be entered contemporaneously with this Memorandum Opinion and Order in favor of the named Respondent. This the L day of January, 2010. HENRY R. WILHOIT, JR. SENIOR U.S. DISTRICT JUDGE 5
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