Austin v. USA et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Chad Austin
v. 	Civil No. 20-cv-506-SM
FCI Berlin Warden
REPORT AND RECOMMENDATION
Chad Austin, an inmate at the Federal Correctional
Institution in Berlin, New Hampshire, has filed a petition for a
writ of habeas corpus (Doc. No. 1) and an addendum (Doc. No. 5)
to that petition, challenging the manner in which the Federal
Bureau of Prisons has calculated his 222-month sentence imposed
in United States v. Austin, No. 1:98-cr-00131-SM-1 (D.N.H.).
The petition and its addendum, seeking relief under 28 U.S.C.
§ 2241, are before this court for preliminary review to
determine whether the petition is facially valid and may
proceed. 	See 28 U.S.C. § 2243; LR 4.3(d)(4)(A); Rule 4 of the
Rules Governing Section 2254 Cases (“§ 2254 Rules”); see also
§ 2254 Rule 1(b) (§ 2254 Rules may be applied to § 2241
petitions). 	Mr. Austin has also filed a motion to expedite
ruling (Doc. No. 2), a motion for bail (Doc. No. 3), and a
motion for an in camera hearing (Doc. No. 6).
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Background
This is the second § 2241 petition filed by Mr. Austin,
raising the same issues, challenging the same sentence
calculations. 	Mr. Austin’s first such petition was filed in the
District of Maryland when he was incarcerated there. 	The court
in that case entered judgment as a matter of law in favor of the
respondent warden; the Fourth Circuit affirmed that decision;
and the Supreme Court denied Mr. Austin’s petition for a writ of
certiorari. 	See Austin v. Stewart, No. 8:17-cv-02581-PWG, 2018
U.S. Dist. LEXIS 78821, 2018 WL 2163683 (D. Md. May 10, 2018)
(“Austin I”), aff’d, 741 F. App’x 944 (4th Cir. 2018), cert.
denied, 140 S. Ct. 232 (2019).
The court in Austin I succinctly described the background
and Mr. Austin’s arguments in that case, as follows:
Following a crime spree on February 11, 1998 that started
in New Hampshire and ended in Massachusetts, Petitioner
Chad Austin was indicted, convicted, and sentenced first in
Massachusetts state court and then in federal court in New
Hampshire of crimes arising out of his conduct that day.
His federal sentence was, in part, concurrent to and, in
part, consecutive to his state sentence. 	His state
sentence was vacated in part on October 25, 2006, and he
was resentenced on all counts in state court. 	In
[petitioner’s] view, in light of the state court order
vacating his state court sentence, his consecutive federal
sentences began to run [as] soon as his concurrent federal
sentences concluded, such that he should be released
immediately.
Austin I, 2018 U.S. Dist. LEXIS 78821, at *1, 2018 WL 2163683,
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at *1. 	The court in Austin I then noted that, according to Mr.
Austin’s first § 2241 petition, his 222-month federal sentence
began to run on November 12, 1999, the date of his federal
sentencing. 	Id., 2018 U.S. Dist. LEXIS 78821, at *10, 2018 WL
2163683, at *4.
The court in Austin I was not persuaded by Mr. Austin’s
arguments. 	That court found that Massachusetts had primary
jurisdiction over Mr. Austin from the date of his arrest through
October 28, 2016, the date Massachusetts authorities released
him from his state sentence. 	See id., 2018 U.S. Dist. LEXIS
78821, at *12-13, 2018 WL 2163683, at *4. 	The court further
noted that the Federal Bureau of Prisons (“BOP”) gave Mr. Austin
credit towards the 102-month portion of his federal sentence
that was intended to be served concurrently with his state
sentence, beginning on June 2, 2009, while he remained in state
custody, by designating the state facility as the place he
served that portion of his federal sentence. 	See id., 2018 U.S.
Dist. LEXIS 78821, at *8, 2018 WL 2163683, at *3. 	When state
authorities released Mr. Austin on October 28, 2016, the 120-
month, consecutive portion of Mr. Austin’s federal sentence
began to run. 	See id., 2018 U.S. Dist. LEXIS 78821, at *14,
2018 WL 2163683, at *4. 	BOP’s online inmate locator currently
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projects Mr. Austin’s release date as March 7, 2025. 1
Discussion
Pursuant to 28 U.S.C. § 2244(a),
No circuit or district judge shall be required to entertain
an application for a writ of habeas corpus to inquire into
the detention of a person pursuant to a judgment of a court
of the United States if it appears that the legality of
such detention has been determined by a judge or court of
the United States on a prior application for a writ of
habeas corpus, except as provided in section 2255.
28 U.S.C. § 2244(a). 	Under the successive petition doctrine and
§ 2244(a), which applies to habeas petitions challenging the
BOP’s calculation of a sentence, a claim that was raised in an
earlier petition is generally barred. 	See Colon v. Sheahan, No.
13CIV6744PACJCF, 2016 U.S. Dist. LEXIS 5048, at *31, 2016 WL
3919643, at *10 (S.D.N.Y. Jan. 13, 2016), R&R adopted, No.
13CV6744PACJCF, 2016 U.S. Dist. LEXIS 91930, at * 20, 2016 WL
3926443, at *8 (S.D.N.Y. July 14, 2016) (citation omitted); see
also Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008)
(“‘§ 2244(a) bars successive petitions under § 2241 directed to
the same issue concerning execution of a sentence’” (quoting
Valona v. United States, 138 F.3d 693, 695 (7th Cir. 1998)).
Exceptions to that general rule arise where the petitioner makes
1 See BOP Inmate Locator, https://www.bop.gov/inmateloc/.
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a colorable showing of factual innocence, or shows cause and
prejudice, see Schlup v. Delo, 513 U.S. 298, 318–19, 326-28
(1995) (regarding prior law).
Mr. Austin litigated the same claims asserted in the § 2241
petition here in Austin I, and he obtained a decision on the
merits which he appealed unsuccessfully. 	There are no arguments
raised in the instant petition that were not litigated and
decided on the merits in his first § 2241 petition. 	This case
does not present any claim of factual innocence or a cause-and-
prejudice argument that could warrant further consideration of
the merits of the same claims in this successive § 2241
petition.
Accordingly, Mr. Austin’s § 2241 petition here is properly
dismissed in its entirety as successive. 	Because the entire
petition (Doc. Nos. 1, 5) should be dismissed, the district
judge should further deny Mr. Austin’s motion to expedite ruling
(Doc. No. 2), motion for bail (Doc. No. 3), and motion for an in
camera hearing (Doc. No. 6).
Conclusion
For the foregoing reasons, the district judge should: (1)
DISMISS Mr. Austin’s § 2241 petition; and (2) DENY Mr. Austin’s
motions to expedite ruling (Doc. No. 2), for bail (Doc. No. 3),
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and for an in camera hearing (Doc. No. 6). 	Any objections to
this Report and Recommendation must be filed within fourteen
days of receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2).
The fourteen-day period may be extended upon motion. 	Failure to
file specific written objections to this Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 22, 2020
cc: 	Chad Austin, pro se
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