USA v. Rogge

AO72A
(Rev. 8/82)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v. Criminal No. 86-10004-001
97-10005-001
97-10006-001
LESLIE I. ROGGE
DEFENDANT/MOVANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the undersigned is the motion for preliminary injunction filed by the
Defendant/Movant, Leslie Ibsen Rogge (hereinafter “Rogge”), asking that this court order the
warden of the U.S.P. Beaumont and the Federal Bureau of Prisons (hereinafter “B.O.P.”) to run his
sentences concurrently and to calculate his sentences as provided by 18 U.S.C. § 4205(A). (Doc.
#65, #12 , #12 )
At the request of Rogge, by order entered on July 7, 2005, this court, in order to provide
guidance and clarification to the B.O.P. as to the sentences imposed by this court in these cases,
entered an order clarifying the sentences imposed herein. (Doc. #64)
In the pending motion, Rogge asserts that the B.O.P. is not following the law or the orders
of this court in calculating Rogge’s parole eligibility date and his release date. (Doc. #65)
Clearly, Rogge’s motion does not attack his convictions or the sentences imposed by this
court. Instead, he attacks the execution of the sentences by the B.O.P. Accordingly, the pending
motion may be construed as one brought under 28 U.S.C. § 2241. See Matheny v. Morrison, 307
F.3d 709, 711 (8th Cir. 2002)(a federal prisoner can properly attack the execution of his sentence
in a 28 U.S.C. § 2241 petition) in accord Bell v. United States, 48 F.3d 1042, 1043-44 (8th Cir.
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AO72A
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1995).
However, such a petition must be brought in the judicial district in which the B.O.P. or the
petitioner’s custodian is located. See Matheny v. Morrison, 307 F.3d at 711 (§ 2241 petition must
be filed in the district where the petitioner is incarcerated); Bell v. United States, 48 F.3d at 1043-
44 (court lacks subject matter jurisdiction over a § 2241 petition where the petitioner is not
incarcerated in that district; petition must be filed in district having jurisdiction over petitioner’s
custodian); McCoy v. United States Bd. of Parole, 537 F.2d 962, 964 (8th Cir. 1976)(jurisdiction
under § 2241 “lies not only in the district of actual physical confinement but also in the district
where a custodian responsible for the confinement is present”).
Rogge is being incarcerated in the U.S.P. Beaumont, Texas and the B.O.P. is not subject
to service within the boundaries of the Western District of Arkansas, accordingly Rogge’s motion
is subject to dismissal without prejudice to his refiling his motion in proper form in the appropriate
federal judicial district.
While this court gladly entered its previous order in order to clarify the sentence imposed
by this court, this court simply lacks jurisdiction to proceed with respect to the execution of these
sentences by the B.O.P.
Conclusion:
It is recommended that Rogge’s pending motion be dismissed without prejudice to his
refiling the motion, in proper form, in the appropriate federal judicial district.
The parties have ten days from receipt of our report and recommendation in which
to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
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AO72A
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district court.
DATED this 1st day of February 2006.
/s/ Bobby E. Shepherd
HON. BOBBY E. SHEPHERD
UNITED STATES MAGISTRATE JUDGE
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