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Mogavero v. Cozza-Rhodes

United States District Court, D. Colorado

June 12, 2015

T. K. COZZA-RHODES, Respondent.


ROBERT E. BLACKBURN, District Judge.

This matter is before me on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("Application") [#1][1] filed August 27, 2014, by Applicant, Joseph Mogavero. On October 6, 2014, Respondent was ordered to show cause why the Application should not be granted. Respondent filed Response to Order To Show Cause (Doc. 15) ("Response") [#18] on October 27, 2014, and Applicant filed Reply to Respondent's Response to [Court Ordered] Order to Show Cause Motion To Strike ("Reply") [#19] on November 10, 2014. After reviewing the pertinent portions of the record in this case including the Application, the Response, and the Reply, I conclude that the Application should be denied.


Mr. Mogavero was arrested by Illinois state authorities on February 6, 2006, for an outstanding warrant. [# 18-1 at 2, 13]. He was released on bond on February 8, 2006. [ Id. at 2, 8]. On March 7, 2006, Mr. Mogavero was arrested by Illinois police officers on state felony charges of retail theft. [ Id. at 2, 10]. On May 18, 2006, he was sentenced in Illinois state district court to the following: (1) a 114-month prison term with 15 days credit for time served for robbery in Case No. 06-CF-1318-01; (2) a 9-year prison term with 74 days credit for time served for retail theft in Case No. 06-CF-539-1; and, (3) a 72-month prison term for forgery in Case No. 06-CF-606-1. [ Id. at 2, 10-12]. The state court ordered the sentences to run concurrently. [ Id. ]. Mr. Mogavero was taken into custody of the Illinois Department of Corrections to serve his state sentences on May 22, 2006. [ Id. at 3, 14].

Mr. Mogavero was released to the temporary custody of the United States Marshals Service on April 15, 2008, pursuant to a federal writ of habeas corpus ad prosequendum issued by the United States District Court for the Northern District of Illinois. [ Id. at 3, 17].

On December 14, 2009, the federal district court sentenced Mr. Mogavero to a 99-month prison term for bank robbery. [ Id. at 3, 19-20]. The federal sentence was ordered to run concurrently with the undischarged state terms of imprisonment in Case Nos. 06-CF-539-001, 06-CF-1318-01, and 06-CF-606-01. [ Id. at 20]. On January 15, 2010, following the federal sentencing, Mr. Mogavero was returned to the custody of the Illinois Department of Corrections. [ Id. at 3, 18].

On March 18, 2011, Mr. Mogavero was released on parole from his state sentences and was taken into federal custody to serve the remainder of his federal sentence. [ Id. at 3, 14, 18, 31].

The Bureau of Prisons (BOP) completed a "Willis/Kayfez Calculation Worksheet" for Mr. Mogavero and determined that he was entitled to 75 days of non-federal presentence credit. [#18-1 at 28, 32]. Mr. Mogavero has a projected release date, via good conduct time, of February 3, 2017. [ Id. at 30].

Mr. Mogavero initiated this action by filing, pro se, his 28 U.S.C. § 2241 Application on August 27, 2014. In a Preliminary Response to the Application, Respondent informed the Court that the affirmative defense of failure to exhaust administrative remedies would not be asserted in this action. The case was thereafter drawn to the undersigned.

In the Application, Mr. Mogavero claims that he has been denied federal custody credit for the period he was in custody serving his state court sentences because the federal district court ordered the federal sentence to run concurrently with the state sentences.


A. 28 U.S.C. § 2241

An action brought by a federal prisoner pursuant to 28 U.S.C. § 2241 is one that challenges the execution of a sentence "and the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir.1997). A challenge to the calculation of a federal prison sentence is properly brought under 28 U.S.C. § 2241. See Bloomgren v. Belaski, 948 F.2d 688 (10th Cir.1991); see also United States v. Miller, 594 F.3d 1240, 1242 (10th Cir. 2010) (construing petitioner's request for nunc pro tunc designation of his state facility for service of federal sentence as a habeas corpus petition under 28 U.S.C. § 2241).

B. Pro Se Litigant

Mr. Mogavero is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. ...

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