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Raine v. Pearson

United States District Court, Fifth Circuit

August 8, 2013

MARCO S. RAINE, Petitioner,
v.
BRUCE PEARSON, [1] Warden, Respondent.

REPORT AND RECOMMENDATION

MICHAEL T. PARKER, Magistrate Judge.

BEFORE THE COURT is Marco S. Raine's pro se Petition [1][2] for Writ of Habeas Corpus filed pursuant to 28 U.S.C. ยง 2241. Having considered the petition, the answer, the documents made a part of the record of this case, and the applicable law, and being thus fully advised in the premises, the undersigned finds that Petitioner did not exhaust all available administrative remedies prior to filing this action. Accordingly, the undersigned recommends that the Petition [1] be DISMISSED.

Background

Petitioner Marco S. Raine is in the custody of the Federal Bureau of Prisons ("BOP") and is currently incarcerated at the Federal Correctional Institution ("FCI") in Yazoo City, Mississippi. [26-10].[3] He is serving an aggregate 54-month sentence for a violation of supervised release and a two-count indictment for bank fraud and making or possessing a counterfeit check. [1-4] at 1-3. Raine's expected release from federal custody is May 6, 2015, via good conduct time release. [26-1] at 2.

The initial Petition [1] in this matter was filed on September 7, 2011.[4] Raine alleged he belonged in federal custody and was being wrongfully held in the state prison at the time. [1] at 4-8.[5] On September 30, 2011, Raine filed a Motion to Amend the Petition [10], challenging the calculation of his federal sentence. Raine claims he is entitled to credit against his federal sentence for the time he spent in state custody from July 18, 2008, [6] to September 6, 2011. [10] at 2-3. Further, Raine claims he is entitled to credit for the time between January 7, 2008, and June 13, 2008, alleging he was technically a pre-trial detainee in federal custody at the time. Id. at 4. On November 15, 2011, the Court granted Raine's motion and deemed it as the amended petition. [15].

A brief chronology of the Petitioner's criminal history provides perspective and context. The record reflects that Raine's criminal history began on or about July 18, 2002, with a 15-year sentence in Pearl River County, Mississippi, for uttering a forgery. [26-5] at 2. On July 11, 2006, Raine pled guilty to one count of bank fraud in the United States District Court for the Southern District of Alabama. On November 8, 2006, he was sentenced to a term of twelve months and one day imprisonment as well as five years supervised release. United States v. Raine, No. 1:06-cr-45-WS (S.D. Ala. Nov. 8, 2006) ( Raine I ). On October 3, 2007, the district court issued a warrant for Raine's arrest. [1-2].

On March 9, 2007, Raine was released by the BOP on supervised release to a detainer in Louisiana. [26-2] at 2. On June 11, 2007, he was relocated to authorities in Jackson County, Mississippi. The next day, he was transferred to authorities in Harrison County, Mississippi. Id. at 3. On September 11, 2007, Raine was arrested in Harrison County for a felony bad check offense. Id. at 3. He was released on bond the following day. On September 25, 2007, he was arrested in Harrison County for uttering a forgery and bad check as well as on a Louisiana warrant for stalking and petty larceny. On December 4, 2007, he was released to Jackson County to face charges there.[7] He was transferred back to Harrison County on December 5, 2007. Id.

While in state custody, Raine was indicted by the Southern District of Alabama a second time for attempt to commit bank fraud and possession of a counterfeit security check. See United States v. Raine, No. 1:07-cr-405 (S.D. Ala. filed Dec. 26, 2007) ( Raine II ). A warrant was issued for his arrest and was later executed on January 7, 2008, at which time he was transported from Harrison County, Mississippi, to a federal facility in Alabama.[8]

On January 16, 2008, an initial appearance was held in Raine I concerning revocation of the Petitioner's supervised release. On February 19, 2008, Raine pled guilty to both charges in the Raine II indictment (attempted bank fraud and possession of a counterfeit check). On June 13, 2008, the Petitioner's supervised release was revoked in Raine I and he was sentenced to 24 months imprisonment. [26-2] at 3. Also on June 13, 2008, Raine was sentenced to 30 months imprisonment for each count in the Raine II indictment and to 5 years supervised release. The Petitioner was ordered to serve the sentence in Raine II consecutive to that in Raine I (for a total of 54 months, plus 5 years supervised release). Id.

While in federal custody, Raine was charged with felony bad check in the Circuit Court for the First Judicial District of Harrison County, Mississippi. In that regard, the state court issued a writ of habeas corpus ad prosequendum on July 14, 2008, to transport Raine to Mississippi for a trial on the charge. [1-5]. The writ provided that Raine was to be returned to federal custody upon completion of the state court proceedings. Id. On July 18, 2008, Raine was transferred to state custody to stand trial, which was initially set for July 28, 2008, but was continued to October 9, 2008. [1-6] at 1. He pled guilty to seven counts of felony bad check in the Harrison County Circuit Court. On October 27, 2008, Raine was sentenced to nine years in the custody of the MDOC. Id.

The Petitioner remained in state custody following his trial and sentencing in Harrison County. The record reflects that on January 4, 2010, Rankin County Circuit Court sentenced Raine to four years imprisonment for uttering a forgery. [26-5] at 2; [26-2] at 4. The Rankin County Court ordered that the sentence run consecutive to his prior sentence in Harrison County. Id.

While in the custody of the MDOC, Raine filed a state court petition for writ of habeas corpus alleging that he was being unlawfully confined in state custody although he was supposed to return to federal custody after the proceedings in Harrison County Circuit Court. See [1-6]. On January 12, 2010, the Harrison County Circuit Court ordered that Raine be returned to federal custody to complete his federal sentence. In addition, the state court ordered that a detainer be placed on Raine until completion of his federal sentence, at which time he should be returned to the MDOC to serve the remainder of his state sentence. Id.

Despite the trial court's order, the Petitioner remained in state custody. Therefore, he filed a petition for writ of mandamus in the Mississippi Supreme Court, asking that the trial court be compelled to enforce its prior order transferring him to federal custody. [1-7]. The Mississippi Supreme Court denied his petition on May 26, 2010, stating that it "has been informed by the trial court that federal authorities have declined to reclaim custody of Raine." [1-7]. Raine petitioned the state supreme court a second time for a writ of mandamus. On May 10, 2011, the court denied his petition, stating again that "federal authorities have declined to reclaim custody of Raine." [1-8]. At the time Raine filed his petition in this Court, he was in state custody. He was moved to federal custody after being released to the U.S. Marshal's Service on September 6, 2011. [26-10] at 2.

Respondent contends that the instant petition should be denied because (1) Raine failed to exhaust his administrative remedies, which deprives this Court of jurisdiction to review his petition; and (2) that the BOP has accurately calculated Raine's federal sentence. [26] at 6-10. In support of its contention, Respondent submits a sworn declaration from a BOP Correctional Program Specialist who works in the area of inmate sentencing computations. [26-2]. According to the ...


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