
    Reginald STEVENSON, Petitioner, v. UNITED STATES of America, Respondent.
    Criminal No. 04-20014. Civil No. 05-10262.
    United States District Court, E.D. Michigan, Southern Division.
    July 12, 2007.
    Reginald Stevenson, Lapeer, MI, Pro se.
    Michael J. Hluchaniuk, U.S. Attorney’s Office, Bay City, MI, for Respondent.
   OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION, OVERRULING PETITIONER’S OBJECTIONS, GRANTING MOTION TO DISMISS, AND DISMISSING WITHOUT PREJUDICE MOTION TO CORRECT SENTENCE

LAWSON, District Judge.

The petitioner, Reginald Stevenson, who is presently in state custody serving a sentence for a Michigan conviction, pleaded guilty in this Court to violating the Controlled Substances Act and was sentenced to 108 months in prison. He did not appeal his conviction or sentence. He has filed a petition under 28 U.S.C. § 2255 for correction of his sentence, which the Court referred to Magistrate Judge Charles E. Binder for a report and recommendation. Thereafter, the government filed a motion to dismiss. Magistrate Judge Binder filed a report recommending that the petition be denied and the government’s motion to dismiss be granted, and the petitioner filed timely objections. The Court has conducted a de novo review of the matter. The petitioner claims that he is entitled to credit towards his federal sentence for time served on an unrelated state sentence pursuant to 18 U.S.C. § 3585(b). The Court agrees with the magistrate judge and the government that a motion brought under 28 U.S.C. § 2255 is not the proper vehicle for presenting the petitioner’s argument. The petitioner must wait until he is transferred to federal custody, exhaust his administrative remedies within the Bureau of Prisons (BOP), and if he finds no relief there, he may then file an action in the appropriate court under 28 U.S.C. § 2241.

I.

The petitioner was indicted on February 25, 2004 on five counts of violating the Controlled Substances Act. A superseding indictment was filed on July 14, 2004, but no substantive changes were made. Count one of the indictment, to which the petitioner ultimately pleaded guilty, alleged conspiracy to distribute heroine, cocaine, ecstacy, and marijuana in violation of 18 U.S.C. § 846. That count alleged that the petitioner had been involved in the conspiracy “[f]rom sometime unknown ... until approximately August 27, 2003.” Superseding Indictment [dkt # 25] at 1.

Before the federal prosecution commenced, the petitioner was convicted in the Saginaw County, Michigan circuit court for receiving and concealing stolen property. Documents from the State show that the petitioner was arrested on August 7, 2002 for that charge and was sentenced on December 18, 2003 to 46 months to 20 years imprisonment with credit for one day served. The petitioner was in state custody when he was brought before this Court for his initial appearance. On March 30, 2004, the petitioner agreed to waive his rights under the Interstate Agreement on Detainers Act, and he remained in state custody during the pendency of the federal prosecution.

On September 9, 2004, the petitioner signed a written plea agreement in which he agreed to plead guilty to count one of the superseding indictment in exchange for dismissal of the other counts. On February 3, 2005, the Court sentenced the petitioner to 108 months imprisonment, which was at the low end of the calculated Sentencing Guidelines range. The Court specified that sentence was to be served concurrently with the undischarged portion of the petitioner’s state court sentence.

The petitioner did not file a direct appeal. Instead, on October 3, 2005, he filed the present motion for correction of his sentence pursuant to 28 U.S.C. § 2255. The petitioner does not seek to vacate, correct, or modify his sentence. Rather, he seeks credit on his federal sentence for the time served in state custody prior to sentencing in this Court. He bases his argument on 18 U.S.C. § 3585(b).

On November 28, 2005, the government filed a motion to dismiss the petitioner’s motion on the ground that his claim should have been brought under 28 U.S.C. § 2241. Alternatively, the government asserted that the claim lacked merit.

On February 23, 2006, Magistrate Judge Binder issued his report recommending that the Court grant the government’s motion to dismiss and deny the petitioner’s motion. The magistrate judge agreed with the government that the petitioner’s claim should have been brought under section 2241 and found that his pro se status did not justify overlooking this error. The magistrate judge also suggested that the petitioner’s argument failed on the merits because he is not in exclusive federal custody, since he presently is serving his state sentence at the Mound Correctional Facility in Detroit, Michigan. The magistrate judge therefore concluded that the petitioner is not entitled to relief under 18 U.S.C. § 3585.

The petitioner filed timely objections in which he reasserts the arguments made in his motion and argues that the Court should forgive any procedural error on his part in light of his status as a laymen. The government filed a response to the objections relying on the arguments made in its motion to dismiss.

II.

A federal prisoner challenging his sentence under section 2255 must show that the sentence “was imposed in violation of the Constitution or laws of the United States,” the sentencing court lacked jurisdiction, the sentence exceeds the maximum penalty allowed by law, or the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255. The petitioner alleges none of these things, however. Rather, he objects to the manner in which the Bureau of Prisons (BOP) calculates the credit for time served against his federal sentence.

According to the exhibits attached to the petitioner’s motion, Stevenson sent a letter to the BOP asking it to recalculate his sentence; he asked for credit for the time he spent in state custody before his federal sentence was imposed on February 3, 2005. On September 21, -2005, the BOP sent the petitioner a letter declining to give credit and instead determining that the petitioner’s federal sentence began on the day it was imposed, even though he was not sent to federal custody at that time. The BOP cited 18 U.S.C. § 3585 as the controlling statute. Although federal regulations allow for administrative review of decisions of this sort, see 28 C.F.R. § 542.10 et seq., the petitioner took the matter no further, which is sensible since the administrative review process “applies to all inmates in institutions operated by the Bureau of Prisons.” 28 C.F.R. § 542.10(b).

The significance of this latter fact has been overlooked by the petitioner, who seeks relief via section 2255. In his motion, he is contesting the manner in which his sentence is executed. “(Ejection 2241 is the appropriate vehicle for a federal prisoner to challenge the manner in which his sentence is executed.” Hacker v. Federal Bureau of Prisons, 450 F.Supp.2d 705, 709 (E.D.Mich.2006) (citing United States v. Jalili, 925 F.2d 889, 893 (6th Cir.1991)). Relief concerning the execution of a sentence is not available under section 2255, which addresses collateral attacks on the underlying conviction and imposition of sentence.

This distinction holds true post-AEDPA, as noted in the widely-cited Sixth Circuit case Charles v. Chandler, 180 F.3d 753 (6th Cir.1999). In that case, the Sixth Circuit explained:

[Cjourts have uniformly held that claims asserted by federal prisoners that seek to challenge their convictions or imposition of their sentence shall be filed in the sentencing court under 28 U.S.C. § 2255, and that claims seeking to challenge the execution or manner in which the sentence is served shall be filed in the court having jurisdiction over the prisoner’s custodian under 28 U.S.C. § 2241.

Charles, 180 F.3d at 755-56 (citations omitted).

In his objections to the magistrate judge’s report, Stevenson asks the Court to overlook the fact that he has invoked the wrong statute. He asks the Court to apply the familiar rule that a pro se litigant’s pleadings are construed liberally and judged against a less stringent standard than pleadings drawn by attorneys. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). But the petitioner’s mistake is more that a technical error, and the Court cannot ignore it.

First, the petitioner is not presently in federal custody, which is a prerequisite to the application of section 2241 in this instance. See 28 U.S.C. § 2241(c)(1) (stating that “[t]he writ of habeas corpus shall not extend to a prisoner unless ... [the prisoner] is in custody under or by color of the authority of the United States or is committed for trial before some court thereof’). Second, to properly adjudicate a claim challenging the calculation of a sentence, the appropriate federal custodian, namely a BOP official in charge of the petitioner’s detention, must be summoned before the court. That person likely will be the warden of the federal facility in which the petitioner is housed once transferred to federal custody. However, the third point that flows from that observation is that the action must be brought in the district where the prisoner is detained, which may not be the same district as the sentencing court. Martin v. Perez, 319 F.3d 799, 802-03 (6th Cir.2003) (stating that “[a] petition for habeas corpus [under section 2241] must be filed in the district court that has jurisdiction over a prisoner’s place of confinement.... As a result, ha-beas corpus proceedings may occur in a court of confinement that is different from the court of conviction”). Finally, before the petitioner may bring such a claim, he must exhaust his administrative remedies. Fazzini v. Northeast Ohio Correctional Center, 473 F.3d 229, 231 (6th Cir.2006) (holding that “[f]ederal prisoners must exhaust their administrative remedies prior to filing a habeas petition under § 2241”).

As a practical matter, the petitioner also must overcome the plain language of 18 U.S.C. § 3585(b)(2), which states:

(b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.

18 U.S.C. § 3585(b). It appears that the petitioner is asking the BOP to credit time against his federal sentence that already was credited against his state sentence prior to February 3, 2005. As the Supreme Court has recognized, section 3858(b) “made clear that a defendant could not receive a double credit for his detention time.” United States v. Wilson, 503 U.S. 329, 337, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). The Sixth Circuit has rejected claims on numerous occasions under § 3585(b) where the prisoner received credit against a state sentence for the time claimed. See, e.g., Woody v. Marberry, 178 Fed.Appx. 468, 471 (6th Cir.2006); Bridgeman v. Bureau of Prisons, 112 Fed.Appx. 411, 413 (6th Cir.2004); Broadwater v. Sanders, 59 Fed.Appx. 112, 113-14 (6th Cir.2003); Huffman v. Perez, 230 F.3d 1358, 2000 WL 1478368, *2 (6th Cir.2000) (Table). But that will be an issue for another day.

The petitioner is not yet in federal custody: he still is confined by the Michigan Department of Corrections on his state sentence. Contrary to the magistrate judge’s statement suggesting otherwise, the petitioner is now serving his federal sentence, which this Court ordered to run concurrently with the undischarged term of the petitioner’s state sentence. But the remedy of habeas corpus is addressed to the custodian, which must be a federal official according to the nature of the petitioner’s complaint in this case. When the petitioner is transferred to federal custody, he can join the issue with respect to the calculation of sentencing credits. Until then, his petition is premature.

III.

The Court finds that the relief the petitioner seeks is not properly cognizable under 28 U.S.C. § 2255. The petitioner is not yet in a position to seek relief on his complaint concerning the calculation of sentence credits under 28 U.S.C. § 2241.

Accordingly, it is ORDERED that the petitioner’s objections to the magistrate judge’s report and recommendation [dkt # 57] are OVERRULED.

It is further ORDERED that the magistrate judge’s report and recommendation [dkt # 56] is ADOPTED.

It is further ORDERED that the government’s motion to dismiss [dkt # 53] is GRANTED.

It is further ORDERED that the petitioner’s motion to correct his sentence [dkt # 48] is DISMISSED WITHOUT PREJUDICE.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON PETITIONER’S MOTION FOR CORRECTION OF SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Dkt. 48) AND RESPONDENT’S MOTION TO DISMISS PETITION UNDER 28 U.S.C. § 2255 (Dkt. 53)

BINDER, United States Magistrate Judge.

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Petitioner’s Motion for Correction of Sentence Pursuant to 28 U.S.C. § 2255 be DENIED and that Respondent’s Motion to Dismiss Petition Under 28 U.S.C. § 2255 be GRANTED.

II. REPORT

A. Introduction

Pending, pursuant to an Order of Reference from United States District Judge David Lawson (Dkt. 50), are the above-entitled motions. Petitioner has filed a response opposing the Government’s motion. (Dkt. 55.) Upon review, I conclude that pursuant to E.D. Mich. LR 7.1(e)(2), these motions are ready for Report and Recommendation without oral argument.

B. Procedural History

On February 25, 2004, Petitioner was charged with a conspiracy to distribute cocaine, heroine, ecstasy and marijuana “from sometime unknown and continuing until approximately August 27, 2003.” (Indictment, Dkt. 3, Count I.) Petitioner was also charged with possession with intent to distribute heroine, cocaine, ecstasy and marijuana. (Id., Counts II-V.) At the time of Petitioner’s arraignment on March 9, 2004, I noted that the imposition of bond was inappropriate as the Petitioner was at that time serving a state sentence of incarceration. On March 30, 2004, Petitioner filed a waiver of rights under the interstate agreement on detainers. (Dkt. 16.) This allowed Petitioner to return to state custody pending federal prosecution. In July 2004, a First Superseding Indictment was filed against Petitioner, although no substantive changes were made in the charges against him. (Dkt. 25.) On September 9, 2004, Petitioner entered into a Rule 11 Plea Agreement and pled guilty to Count I of the First Superseding Indictment. On February 3, 2005, after the preparation of a Presentence Investigation Report, Petitioner was sentenced to 108 months incarceration to be served concurrently to any other undischarged term of incarceration. (Dkt. 46.) At that time, pursuant to the Rule 11 Plea Agreement, the remaining charges against him were dismissed. No direct appeal was filed from this judgment, and the instant motion followed on October 3, 2005.

Citing 18 U.S.C. § 3585, Petitioner filed the instant motion seeking to recalculate his sentence. Petitioner states: “It is [Petitioner’s] contention that he should have been given credit he was in “official custody” (state), back to 12-18-03; the time he was incarcerated for the state offense when he was indicted for his federal case.” (Pet’r.’s Mot., Dkt. 48 at 2.) Petitioner contends that “he can show his state offense occurred after his federal offense, thus making him eligible for pre-sentence time credit.” (Id.) Petitioner states that he has requested recalculation of his sentence from the Bureau of Prisons (BOP), and that this request was denied. (Id. at 1.) Petitioner states:

If the federal offense occurred (started) in August of 1999, as the evidence states then, his state offense, which didn’t occur until 08-07-02; after his federal offense, which he was incarcerated for at the time of his federal indictment, he should be given pre-sentence detention credit back to January 16, 2004, the date when defendant was first ask [sic] to answer the charges which would eventually make up this federal indictment. (See Exhibit # 1)

(Id. at 3.)

Respondent argues that the motion should be dismissed as the Court lacks jurisdiction under 28 U.S.C. § 2255 to grant the remedy requested. In the alternative, Respondent argues that Petitioner’s request for relief fails on the merits.

C. Law and Analysis

The general rule is that 28 U.S.C. § 2255 actions relate to conviction and the imposition of sentence. Moore v. Perrill, 39 F.3d 1192 (10th Cir.1994). Here, however, Petitioner at no point disputes his plea, conviction, or the length of the sentence imposed by Judge Lawson. Instead, Petitioner seeks only the application of sentence credits. In this circuit, claims seeking to challenge the execution or manner in which a sentence is served are to be filed under 28 U.S.C. § 2241. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.1998) (citing United States v. Jalili, 925 F.2d 889, 893 (6th Cir.1991)); Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir.1977). I therefore suggest that Respondent’s jurisdictional arguments have merit and that this Court lacks the jurisdiction and authority to grant the relief requested in a motion filed under 28 U.S.C. § 2255.

Petitioner’s reliance upon his pro se status, I suggest, is unavailing. Although Petitioner is correct that a pro se litigant’s pleadings are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), “... [A] pro se litigant, whether a plaintiff or a defendant is required to follow the law.” Williams v. Sears, Roebuck & Co., 143 F.Supp.2d 941, 947 (W.D.Tenn.2001). As the U.S. Supreme Court stated in McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), “we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.” Id. at 113, 113 S.Ct. 1980. I therefore suggest that the grant of Respondent’s motion and the denial of Petitioner’s motion is appropriate.

In the alternative, I suggest that Petitioner’s motion fails on the merits. The recent case of Wilson v. Sniezek, No. 4:05 CV 2099, 2005 WL 2491532 (N.D.Ohio Oct. 7, 2005), is closely analogous, and I suggest its analysis is controlling. The petitioner in Wilson, as in the instant case, cited 18 U.S.C. § 3585 and argued that he was not given the concurrent sentence ordered by the sentencing judge. As in the instant case, petitioner in Wilson was in state custody with his state sentence commencing approximately two years prior to his federal sentence. After concluding that petitioner Wilson had exhausted his administrative remedies within the BOP, the court pointed out that the Sixth Circuit has interpreted 18 U.S.C. § 3584 to give a sentencing court discretion as to whether a sentence is to run concurrently or consecutively. The court then stated:

... The Supreme Court has explicitly held that the authority to award sentence credit under § 3585(b) is granted by Congress to the Attorney General rather than to the sentencing court. See United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Thus, although Mr. Wilson argues that the BOP is acting in contravention of the district court order that his sentences run concurrently, the basis upon which he claims he is entitled to an earlier release date from prison falls strictly under the provisions of 18 U.S.C. § 3585.

Id. at 2005 WL 2491532, *2.

Turning to the application of 18 U.S.C. § 3585, the Wilson court made a series of conclusions which, I suggest, apply equally to the instant case.

Here the Bureau has determined that Mr. Wilson is not entitled to credit on his federal sentence for the period from March 17, 1989, until his federal sentence was imposed on April 16, 1991. One critical reason for its decision is the fact that he was not in exclusive federal custody during that time.
... It is a legal axiom that the state from which a prisoner is transported retains primary jurisdiction over that prisoner as long as the prisoner is serving an unexpired state sentence. See Thomas v. Brewer, 923 F.2d 1361, 1366-67 (9th Cir.1991) (producing state prisoner under writ of habeas corpus ad prosequendum does not relinquish state custody); Salley v. United States, 786 F.2d 546, 547-48 (2d Cir.1986) (defendant produced and sentenced in federal court via writ of habeas corpus ad prose-quendum did not begin to serve consecutive federal sentence until delivered into federal custody). Therefore, Mr. Wilson was not in exclusive federal custody as long as he was still serving his state sentence. Federal custody commences only when the state authorities relinquish the prisoner on satisfaction of the state obligation. Thomas v. Whalen, 962 F.2d 358, 361 n. 3 (4th Cir.1992); Hernandez v. United States Attorney General, 689 F.2d 915, 918-19 (10th cir. 1982); Roche v. Sizer, 675 F.2d 507, 509-10 (2d Cir.1982).

Id. at 2005 WL 2491532, *3.

Applying the law cited above to this case, I first suggest that the authority to grant the sentence credit requested by Petitioner lies exclusively with the BOP and not with this Court. Even if this Court had the authority to make the recalculation requested by Petitioner, under 18 U.S.C. § 3585, the credit requested by Petitioner is unavailable. As in the Wilson case, I suggest that Petitioner is not at this time in exclusive federal custody, as he is continuing to serve his state sentence. Under Wilson, I further suggest that Petitioner’s federal custody, and thus his federal sentence, only commence once the state authorities relinquish the petitioner after the satisfaction of his state sentence. As a result, no sentence credit is allowable, as he is not yet serving a federal sentence. Thus, I suggest that should the court reach the merits, the denial of Petitioner’s motion is appropriate.

III. REVIEW

The parties to this action may object to and seek review of this Report and Recommendation within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

February 23, 2006. 
      
      . Section 3585 states:
      Calculation of a term of imprisonment
      (a) Commencement of sentence. — A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.
      (b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—
      (1) as a result of the offense for which the sentence was imposed; or
      (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.
     
      
      . I presume, for the purposes of this analysis, that the Petitioner in this case has in fact exhausted his administrative remedies within the BOP.
     