Powers v. Davies

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John Jay Powers
v. 	Case No. 21-cv-472-JL
Walter Davies, Director
Hampshire House
REPORT AND RECOMMENDATION
John Jay Powers, proceeding pro se, brings a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging
the federal Bureau of Prisons’ (“BOP’s”) computation of two of
his sentences. 1 	The petition is before the court for preliminary
review pursuant to Rule 4 of the Rules Governing Section 2254
Cases (§ 2254 Rules”). 2
Standard of Review
Section 2254 Rule 4 requires the court to dismiss the
petition “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief
1 Mr. Powers represents that he is currently at Hampshire
House in Manchester, New Hampshire, a facility which contracts
with the BOP to provide housing for BOP prisoners transitioning
from incarceration to the community.
2 See Section 2254 Rule 1(b) (authorizing court to apply the
§ 2254 Rules to § 2241 petitions).
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in the district court.” 	Under § 2254 Rule 4, “[f]ederal courts
are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.” 	McFarland v. Scott,
512 U.S. 849, 856 (1994). 	The court construes liberally
pleadings filed by pro se petitioners. 	Haines v. Kerner, 404
U.S. 519, 520-21 (1972).
Background
“Mr. Powers’ criminal history is complex and includes
multiple convictions and sentences in multiple jurisdictions.”
Powers v. Stancil, 18-cv-1226-KMT, 2019 U.S. Dist. LEXIS 233549,
at *2, 2019 WL 10435093, at *1 (D. Colo. Feb. 5, 2019). 	As is
pertinent to Mr. Powers’s current petition, he was convicted and
sentenced in the Middle District of Florida in February of 1990,
in United States v. Powers, No. 8:89-cr-00061-SCB-TGW-1, on
charges of possession of a stolen motor vehicle, criminal
contempt, and bank robbery. 	Powers v. Stancil, 2019 U.S. Dist.
LEXIS 233549, at *2, 2019 WL 10435093, at *1. 	He was sentenced
on the same day to eighteen months in prison for possession of a
stolen motor vehicle, and five-and-one-half months for criminal
contempt. 	Id. 	The judgment in that case does not indicate
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whether those sentences were to be served consecutively or
concurrently. 3 	Id.
In 2018, Mr. Powers brought a petition under § 2241 in the
District of Colorado, where he was then incarcerated,
challenging the computation of his sentences and good time
credit. 4 	Id., 2019 U.S. Dist. LEXIS 233549 at *6, 2019 WL
10435093, at *2. 	Pertinent to this case, Mr. Powers alleged
3 Mr. Powers was sentenced to concurrent terms of 236 months
on the bank robbery convictions, which were to be served
consecutive to the possession of a stolen vehicle and contempt
sentences. 	Powers, 2019 U.S. Dist. LEXIS 233549, at *2, 2019 WL
10435093, at *1. 	In March of 1990, he was sentenced in a
different case in the Middle District of Florida to fifteen
years in prison for firearms-related offenses and other crimes.
Id., 2019 U.S. Dist. LEXIS 233549, at *3, 2019 WL 10435093, at
*1. 	The judgment in that case made the fifteen-year sentence
consecutive to the sentences for possession of a stolen vehicle
and contempt. 	Id. 	A later resentencing maintained the
consecutive order of the sentences. 	Id. 	In 1991, he was
sentenced in the Southern District of Indiana to sixty-six
months in prison for bank robbery, and the sentence was ordered
to be consecutive to the sentences imposed in the Middle
District of Florida. 	Id., 2019 U.S. Dist. LEXIS 233549, at *3-
*4, 2019 WL 10435093, at *2. 	In 2001, he was sentenced in the
District of New Jersey to forty-five months for escape and
interstate transport of a stolen vehicle, and that sentence was
ordered to be served consecutive to the sentences imposed in the
Middle District of Florida. 	Id., 2019 U.S. Dist. LEXIS 233549,
at *4, 2019 WL 10435093, at *2. 	In 2015, Powers pleaded guilty
and was sentenced in the District of Arizona to thirty-three
months in prison for assault on a federal officer. 	United
States v. Powers, No. 4:15-cr-00647-FRZ-EJM-1 (D. Ariz. Sept.
28, 2015) (ECF No. 51) (most of the sentence imposed
concurrently with prior sentences but twelve months and one day
to run consecutive to any discharged sentences).
4 While Mr. Powers’s § 2241 action was pending in the
District of Colorado, he was moved to the Federal Correctional
Institution in Allenwood, Pennsylvania.
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that the BOP erred by: “(1) treating the Middle District of
Florida sentences for possession of a stolen motor vehicle and
criminal contempt imposed the same day in case number 89-61-Cr-
T-12(08) as consecutive sentences.” 	Id., 2019 U.S. Dist. LEXIS
233549 at *5, 2019 WL 10435093, at *2. 	The petition was denied
on February 5, 2019. 	Id., 2019 U.S. Dist. LEXIS 233549 at *15,
2019 WL 10435093, at *5.
Mr. Powers appealed. 	In his appeal, Mr. Powers argued that
under Setser v. United States, 566 U.S. 231 (2012), only the
court and not the BOP could make the decision about whether
sentences would run concurrently or consecutively. 	Powers v.
Stencil, 734 F. App’x 736, 739 (10th Cir. 2019). 	He further
argued that the BOP’s Program Statement 5880.28, was “depleted”
by the ruling in Setser, and that the sentencing guidelines
supported his view that the sentences were to run concurrently.
Id. 	The Tenth Circuit found no merit in his arguments and
affirmed the district court. 	Id.
By January of 2021, Mr. Powers was serving the forty-five-
month sentence imposed in the District of New Jersey for charges
of escape and transporting a stolen vehicle. 	Powers v. Quay,
No. 4:20-CV-01519, 2021 U.S. Dist. LEXIS 7918, at *1-*2, 2021 WL
148640, at *1 (M.D. Pa. Jan. 15, 2021). 	By that time, he had
completed the sentences imposed for other crimes, including the
sentence for criminal contempt. 	Id., 2021 U.S. Dist. LEXIS
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7918, at *2, 2021 WL 148640, at *1. 	He was then eligible for
release on October 27, 2021. 	Id.
Discussion
In his current petition, brought pursuant to § 2241, Mr.
Powers again challenges the BOP’s determination that his
sentences for possession of a stolen vehicle and for criminal
contempt were to be served consecutively rather than
concurrently. 	He argues that he is being forced to serve two
sentences for the criminal contempt conviction, in violation of
the Double Jeopardy Clause of the Fifth Amendment, because that
sentence ran concurrently with the sentence for possession of a
stolen vehicle and had been served before the BOP determined
that it was consecutive to the possession sentence. 	He seeks
immediate release.
A § 2241 petition should be dismissed as an abuse of the
writ when the petitioner raises a claim that he could have
raised in a prior petition and when he raises the same claim he
raised previously. 	Beras v. Johnson, 978 F.3d 246, 252 (5th
Cir. 2020); Dotson v. Kizziah, 966 F.3d 443, 444-45 (6th Cir.
2020). 	Mr. Powers previously brought a § 2241 petition in the
District of Colorado, challenging the BOP’s decision to make his
sentence for criminal contempt consecutive to, rather than
concurrent with, the sentence for possession of a stolen
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vehicle. 	The petition was denied. 	Powers v. Stancil, 794 F.
App’x at 739. 	Although Mr. Powers raised a different ground in
that petition to challenge the BOP’s decision, he could have
raised the Fifth Amendment theory that he raises in his current
petition. 	Therefore, Mr. Powers’s § 2241 petition should be
dismissed as an abuse of the writ.
Conclusion
For the foregoing reasons, the § 2241 petition (Doc. No. 1)
should be dismissed. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	Fed. R. Civ. P. 72(b)(2). 	The fourteen-day period
may be extended upon motion. 	Failure to file objections 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
June 28, 2021
cc: 	John Jay Powers, pro se.
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