United States District Court, N.D. Indiana, Fort Wayne Division
ARTHUR T. LUNDY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
WILLIAM C. LEE, JUDGE.
matter is before the Court on the Motion to Correct Clerical
Error Pursuant to Federal Rule of Criminal Procedure 36 filed
by petitioner Arthur Lundy on February 6, 2017 (DE 84). The
United States filed a response in opposition on March 14 (DE
87) and Lundy filed a reply brief on April 3 (DE 88). The
Court construes the motion as one under 28 U.S.C. § 2241
and, for the reasons discussed below, the motion is DENIED.
March 10, 2005, Arthur Lundy pleaded guilty to a charge of
possession with intent to distribute cocaine base or
“crack, ” in violation of 21 U.S.C. §
841(a)(1). On May 20, 2005, this Court sentenced Lundy to a
term of imprisonment of 120 months to be followed by eight
years of supervised release. See Judgment in
Criminal Case (DE 27). In early 2013, after being released
from federal prison and while on supervised release, Lundy
was charged with a state law offense for dealing a controlled
substance in case number 02D04-1302-FB-027. As a result of
that offense, and on motion by the government, this Court
revoked Lundy's supervised release term on July 17, 2013,
and sentenced him to a term of 30 months incarceration with
no supervision to follow. Revocation Judgment (DE 80). Lundy
and the government expressly agreed to that sentence at the
revocation hearing. See Id. (“Government and
Defendant agree to 30 months imprisonment.”). The Court
also ordered Lundy's 30-month federal term “to run
consecutive to the sentence imposed in Allen Superior Court
case 02D04-1302-FB-027[, ]” the state proceeding that
precipitated the revocation. Id.
doesn't challenge any of that in his present motion.
Rather, he claims that this Court stated at the revocation
hearing that he was entitled to, and would be granted, a
“credit” of 30 days toward his 30-month sentence
since he entered federal custody on June 18, 2013 (the day of
his initial hearing on the revocation charge and the day U.S.
Magistrate Judge Roger B. Cosbey remanded Lundy to the
custody of the United States Marshal) and was sentenced on
July 17, exactly one month later. Motion to Correct Error, p.
3 (“Defendant was arraigned on the [violation of
supervised release] and held in Federal Custody, on June 18,
2013 until the date of sentencing, on July 17, 2013.”).
states in his motion that “on November 10, 2016,
Defendant discharged his . . . state term, and entered the
Bureau of Prisons (BOP).” Id. He claims that
“[u]pon entry into BOP, Defendant was advised that the
[revocation] sentence imposed . . . was 30 months, with no
prior credit or adjustment ordered.” Id. Even
though this credit is not reflected in the record before the
Court, Lundy insists that this Court made an “oral
pronouncement” that he would receive a credit of 30
days on his 30-month sentence. Id., p. 4. He
explains that he exhausted his administrative remedies within
the BOP (a contention the government does not challenge) and
was informed that the BOP could not apply any credit since no
such credit was indicated in this Court's Judgment of
Revocation. Id. So, Lundy argues that this Court
should correct what he says is a clerical error so he
receives the 30-day credit. He states that “[a]
correction is not an amended sentence, nor is it a
‘downward departure.'” Id. (citing
United States v. Kieffer, 20 F.3d 874 (8th Cir.
1993)). He also quotes Rule 36, which provides in pertinent
part that “the court may at any time correct a clerical
error in the record arising from oversight or
omission.” Id., p. 2.
government opposes Lundy's motion, arguing that it
“is actually a § 2255 petition in disguise and is
time-barred.” Government's Response, p. 2. The
government construed Lundy's motion as a § 2255
petition apparently because it arguably appears to be asking
the Court to “vacate, set aside or correct [his]
sentence” after it was imposed, which is the purpose of
a § 2255 petition. As such, argues the government,
Lundy's motion is time-barred since the habeas statute
contains a strict limitations period that Lundy missed by
years. Government's Response, p. 4. The government
correctly states that “a § 2255 motion must be
filed within one year of ‘the date on which the
judgment of conviction becomes final.'”
Id. (quoting 28 U.S.C. § 2255(f)(1)). Since
Lundy's revocation judgment was entered on July 17, 2013,
and his present motion “was not filed until February 6,
2017, nearly four years later, well beyond the one-year
limitation period[, ]” the motion is clearly
time-barred and must be dismissed. Id., p.
reply brief, Lundy doubles down on his contention that his
motion is not one under § 2255 because he
“is not requesting a sentence modification, nor is he
challenging the validity or constitutionality of his . . .
sentence.” Petitioner's Reply, p. 2. Lundy argues
that “upon oral pronouncement of sentence, and as the
sentencing transcripts will show, this Court explicitly
stated that it was going to afford one (1) month of jail
credit toward the total term of 30 months.”
Id. Lundy maintains that “as the [Judgment and
Commitment] was silent as to the Court's actual
pronouncement, Rule 36 is a proper vehicle to correct this
clerical error/oversight.” Id., p. 3. But
since the Court concludes that there is no error in the
revocation judgment that needs corrected, Lundy's motion
morphs into one asking the Court to overrule the BOP's
decision and to order the Bureau to award him the 30-day
credit, a request that is properly brought under § 2241.
Regardless of title, Lundy's motion must be denied for
the reasons discussed below.
contends that the BOP wrongly concluded that he was not
entitled to a 30-day credit against his sentence in this
case, did so because the revocation judgment docketed in this
case allegedly did not reflect accurately this Court's
sentence (or intended sentence), that he exhausted his
administrative remedies within the BOP, and this Court should
grant him relief by ordering the BOP to apply the credit to
his present sentence. Motion to Correct Error, p. 7 (“.
. . Movant Arthur T. Lundy prays that this court grant this
motion, and . . . [i]ssue a corrected judgment pursuant to
[Rule 36], whereby Movant is afforded an adjustment to 29
Court listened to the audio recording of the revocation
sentencing hearing held on July 17, 2013. Lundy's
recollection of what was said is not accurate. The Court,
defense counsel and the prosecutor were in agreement that the
sentence imposed in this case would be a term of imprisonment
of 30 months with no supervision to follow. This Court made
no “oral pronouncement” that Lundy would receive
any credit. Furthermore, the Court asked Lundy, under oath,
whether he understood and agreed with that sentence and he
the end of that hearing, Lundy's attorney, Thomas
O'Malley of the Federal Community Defender Program,
stated that he wanted to clarify a point Lundy had raised
with him regarding the consecutive nature of this Court's
sentence. Mr. O'Malley reiterated the Court's
judgment that the revocation sentence in this case would run
consecutively to Lundy's state court sentence, which had
been imposed the month before. There was no discussion
regarding a 30-day credit, or any other credit, to be applied
in this case. It could be inferred, perhaps, from the
discussion on July 17, 2013, that Lundy was inquiring (or
having his attorney inquire) about his “time” in
federal custody (i.e., the 30-day period between his initial
hearing on the revocation petition on June 18, 2013, to his
sentencing on July 17) and how it might affect his state or
federal sentences. Mr. O'Malley conceded that his client
was before the Court on writ of habeas corpus ad prosequendum
from the state and he did not request any credit
against the sentence imposed. The Court acknowledged that Mr.
Lundy was being held in federal custody on writ from state
custody, reiterated that the 30-month sentence that Mr.
Lundy, his attorney, and the government agreed to would run
consecutively to his state court sentence, and asked Mr.
Lundy again if he understood. And again, he answered
Court did not make any “oral pronouncement” at
the hearing that was not included in the Court's
judgment. The BOP's determination was not based on any
error in this Court's Revocation Judgment (DE 80), so
Lundy's “Rule 36” motion is groundless and
would be denied. However, his motion actually goes farther by
asking this Court to order the BOP to credit his
sentence, which is why it is properly construed as a motion
under § 2241. Nonetheless, it still must be denied.
Presentence credits are calculated and applied by the Federal
Bureau of ...