IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) NO. 2:05-CR-83

) 2:13-CV-47

THOMAS FISHER, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the Motion to Correct

Sentence Pursuant to 28 U.S.C. 2255, filed by Defendant, Thomas

Fisher, on January 30, 2013 (DE #40). For the reasons set forth

below, the motion is GRANTED. Fisher’s sentence is HEREBY

CORRECTED to reflect a sentence of 110 months on each of Counts One

and Two, to be served concurrently. Additionally, the Clerk is

ORDERED to mail a copy of this order to the Bureau of Prisons. 

BACKGROUND

On August 10, 2005, Defendant, Thomas Fisher, entered into a

plea agreement for Count One of the information charging him with

being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1), and Count Two of the information charging him with

knowingly possessing a stolen firearm in violation of 18 U.S.C. §

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922(j). (See Amended Plea Agreement, DE #23.) He was sentenced

on December 20, 2005, to 180 months on each of counts one and two,

to be served concurrently. (DE #26.) 

Fisher’s calculated guideline range was actually 110-137

months, but the parties agreed to an above-guideline sentence of 15

years pursuant to the plea agreement based upon the belief that

this sentence would be served concurrent to any sentence Fisher

might receive on collateral state matters. At the time of Fisher’s

sentencing before this Court, he had been charged in state court

with various related charges, but no disposition had been achieved. 

Fisher and the Government agree that it was anticipated that Fisher

would receive either no sentence of imprisonment, or a sentence

which would not exceed the 15 years he received in this Court, to

be served concurrent with the federal sentence. Fisher cooperated

with the Government and its agents after his arrest in state court.

Additionally, the parties agreed it would be best for the defendant

to serve his incarceration in the Federal Bureau of Prisons rather

than the State Department of Corrections. 

Surprisingly, Fisher received a sentence of 30 years in the

state proceeding (15 years with good time credit pursuant to

Indiana’s good time credit rule), which the state court ordered

concurrent to the federal sentence. The Bureau of Prisons declined

to accept the state sentence as concurrent, and refused to put

Fisher in federal custody until his 30 year state sentence was

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served. In other words, the Bureau of Prisons required Fisher to

serve the sentences consecutively.

Ultimately, the defense attorney and state prosecutor worked

out an agreement reducing the state sentence to 3,034 days executed

(1,528 days with good time earned credit.) (See Joint Motion to

Modify Sentence filed in state court, DE #40-1.) Fisher was then

remanded to the Federal Bureau of Prisons.

Currently, Fisher is listed on the Federal Bureau of Prisons’

website as having a release date of August 23, 2024. Thus, the

Bureau of Prisons is continuing to run Fisher’s federal sentence

consecutive to his state sentence. Fisher contends, and the

Government concurs, that because the Bureau of Prisons is running

Fisher’s federal sentence consecutive to his state time, the

resultant sentence is over 5 years longer than the Court and the

parties intended at the time of the federal sentencing. 

Thus, Fisher requests the Court correct his sentence under 28

U.S.C. § 2255(a) to reflect a corrected sentence of 110 months

which is within the mandatory guideline range in effect at the time

of sentencing and satisfies the intent of the Court and the parties

at the time of sentencing. (See DE #40.) 

In its response, the Government states that:

As explained in the defendant’s motion to correct

sentence, all parties involved in this case (both

at the state and federal level) believe that, given

the current posture of the situation, the best

course of action is to correct [the defendant’s

sentence] to a sentence of 110 months imprisonment

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on each of the two counts of conviction, to run

concurrent to each other, which was within the

original guideline range at sentencing. Such a

corrected sentence is fair, reasonable, just, and

not in excess of the statutory maximum.

(DE #41, p. 1.)

DISCUSSION

Habeas corpus relief under 28 U.S.C. section 2255 is reserved

for "extraordinary situations." Prewitt v. United States, 83 F.3d

812, 816 (7th Cir. 1996). In order to proceed on a habeas corpus

petition pursuant to 28 U.S.C. section 2255, a federal prisoner

must show that the district court sentenced him in violation of the

Constitution or laws of the United States, or that the sentence was

in excess of the maximum authorized by law, or is otherwise subject

to collateral attack. Id. Here, the parties argue Fisher’s

sentence is otherwise subject to collateral attack to effectuate

the parties’ intent as well as the Court’s will at the time of

sentencing. 

The Government states that “[t]o the extent that this motion

may have been brought past the one year deadline for motions under

Section 2255, the government is knowingly and intentionally

relinquishing any statute of limitations defense under 28 U.S.C.

Section 2255.” (DE #41, p. 2.) The one year statute of

limitations for state prisoners “is not jurisdictional” but instead

“an affirmative defense that the state bears the burden of

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asserting.” Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). 

Such a waiver is acceptable and indeed, this Court is bound to

follow it. See Wood v. Milyard, 132 S. Ct. 1826, 1835 (2012)

(finding appellate court abused discretion in considering the

timeliness of a federal habeas petition where the state made a

deliberate decision to intentionally waive the statute of

limitations defense); Day v. McDonough, 547 U.S. 198, 199 (2006)

(noting it “would count it an abuse of discretion to override a

State’s deliberate waiver of the limitations defense.”). Because

the Government has made a deliberate waiver of the statute of

limitations defense, the Court reaches the merits of Defendant’s

argument. 

The Court believes it is proper to adjust Fisher’s sentence

under 28 U.S.C. § 2255(a) to reflect a corrected sentence of 110

months, which is within the mandatory guideline range in effect at

the time of sentencing, and satisfies the intent of the Court and

the parties at the time of sentencing. It was never the intent of

the Court for Fisher to serve more than 15 years in prison, and

even the state court ordered that the state sentence should be

served concurrent. Because the Bureau of Prisons refused to

accept the state sentence as concurrent, it undermined the intent

of all parties and this Court in sentencing Fisher. A corrected

sentence is necessary - it is just and fair, and within the

original guideline range at sentencing. 

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CONCLUSION

For the aforementioned reasons, the Motion to Correct Sentence

Pursuant to 28 U.S.C. 2255, filed by Defendant, Thomas Fisher, is

GRANTED. Fisher’s sentence is HEREBY CORRECTED to reflect a

sentence of 110 months on each of Counts One and Two, to be served

concurrently. Additionally, the Clerk is ORDERED to mail a copy of

this order to the Bureau of Prisons. 

DATED: February 13, 2013 /s/ RUDY LOZANO, Judge

United States District Court

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