J. THOMAS RAY, Magistrate Judge.
The following Proposed Findings and Recommended Disposition ("Recommendation") have been sent to United States District Judge D.P. Marshall Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
Pending before the Court is a 28 U.S.C. § 2241 Petition for a Writ of Habeas Corpus filed by J.D. Blair ("Blair"), an inmate in the Federal Correctional Institution in Forrest City, Arkansas. Doc. 1. Before addressing the merits of Blair's habeas claims, the Court will review the relevant procedural history of the state and federal proceedings that give rise to his argument that the federal sentencing court and the Bureau of Prisons ("BOP") committed errors in imposing and calculating his sentence.
On January 2, 2013, state authorities in Missouri arrested Blair and charged him with: (1) possession of marijuana, in Wright County Circuit Court Case No. 12WR-CR00258-1; and (2) domestic assault second degree, in Wright County Circuit Court Case No. 13WR-CR00097. Doc. 7-1 at 3, 31.
On April 4, 2013, Blair was sentenced to two concurrent five-year terms in the Missouri Department of Corrections. Id. at 3, 29-31. The State of Missouri credited Blair's state sentences with ninety-three days of prior custody credit, for the period of January 2, 2013 through April 4, 2013. Id. at 4, 31, 33.
On September 19, 2013, while Blair was incarcerated in a Missouri state prison serving his state sentences, a federal grand jury, in the Eastern District of Missouri, returned an indictment charging him with: (1) conspiracy to distribute a controlled substance (methamphetamine); and (2) conspiracy to commit money laundering. United States v. Blair, E.D. Mo. Case No. 4:13CR00375-ERW-12, at doc. 2.
On October 17, 2013, the United States Marshals Service ("USMS") used a a writ of habeas corpus ad prosequendum to obtain custody over Blair and transport him to the United States District Court for the Eastern District of Missouri for his plea and arraignment later that same day. United States v. Blair, supra at docs. 54, 117; Doc. 7-1 at 4, 48. Thereafter, he was held in federal custody, pursuant to the writ, awaiting his federal trial and sentencing. Doc. 7-1 at 48.
On April 3, 2014, Blair entered a guilty plea to the two federal charges. United States v. Blair, supra at doc. 304. On June 25, 2014, Blair was sentenced on the federal charges to two concurrent terms of fifty-seven months in the BOP, to "run concurrently with the balance of the sentences the defendant is serving under Docket Nos. 12WR-CR00258-01 and 13WR-CR00097, from the Circuit Court of Wright County, Missouri." Id. at doc. 475; Doc. 7-1 at 50-56.
On July 2, 2014, the USMS returned Blair to the custody of the State of Missouri. Doc. 7-1 at 5, 48.
On January 6, 2015, the State of Missouri paroled Blair and released him to the USMS for service of the balance of his federal sentences. Id. at 5, 58.
On February 11, 2015, Blair was designated to his assigned BOP facility. Id. at 5, 27. Consistent with the federal sentencing court's imposition of Blair's two concurrent fifty-seven month sentences, which were also to run concurrently with his Missouri state sentences, the BOP: (1) commenced the federal sentences on June 25, 2014, the date they were imposed; and (2) designated the Missouri Department of Corrections as the facility where he began serving his federal sentences, as of June 25, 2014. Doc. 7-1 at 5, 61, 64. The BOP also determined that Blair was entitled to: (1) ninety-two days of "Willis credit"
On April 20, 2015, Blair filed this federal § 2241 action. Doc. 1. In his Petition, he argues that:
According to Blair, he is entitled to an additional sentencing credit for the period from April 4, 2013 to June 24, 2014.
A challenge to the lawfulness of a federal conviction and sentence generally must be made in § 2255 motion filed with the sentencing court. Lopez-Lopez v. Sanders, 590 F.3d 905, 907 (8th Cir. 2010); see 28 U.S.C. § 2255(a) (a federal prisoner "may move the court which imposed the sentence" to vacate, set aside or correct the sentence). Because a § 2255 motion attacks the validity of the conviction or sentence, it is "a further step in the movant's criminal case," and subject matter jurisdiction lies with the court which convicted and sentenced him. DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986); Thompson v. Smith, 719 F.2d 938, 940 (8th Cir. 1983).
A federal court in the district of incarceration can entertain a 28 U.S.C. § 2241 habeas petition challenging the validity of a conviction or sentence only if "it also appears that the remedy by [§ 2255] motion [to the sentencing court] is inadequate or ineffective to test the legality of his detention." § 2255(e) (emphasis added). A petitioner has the burden of demonstrating the inadequacy or ineffectiveness of seeking § 2255 relief from the sentencing court. Lopez-Lopez, 590 F.3d at 907. The Eighth Circuit has made it clear that the "inadequate or ineffective remedy" exception is a "narrowly-circumscribed `safety valve.'" United States ex rel. Perez v. Warden, FMC Rochester, 286 F.3d 1059, 1061-62 (8th Cir. 2002).
While Blair currently is incarcerated in a BOP facility located in the Eastern District of Arkansas, his § 2241 claim that the sentencing court failed to "adjust" his sentence under USSG § 5G1.3(b)(1) clearly challenges the validity of the sentence imposed by the United States District Court in the Eastern District of Missouri. See Gravitt v. Veach, 229 F. App'x 417, 418-19 (7th Cir. 2007) (inmate's contention that the sentencing court "misapplied" § 5G1.3 "attacks the imposition, not the execution, of his federal sentence" and must be brought under § 2255 or on direct appeal); Savage v. Zickefoose, 446 F. App'x 524, 525-26 (3d Cir. 2011) (inmate must proceed under § 2255, not § 2241, with claims that the sentencing court should have imposed concurrent terms under USSG § 5G1.3(b)).
As previously noted, Blair did not appeal his federal sentence or file a § 2255 motion in the sentencing court. While filing such a motion now may be deemed "untimely," this does not render that remedy "inadequate" or "ineffective" sufficient to allow Blair to utilize § 2241 to challenge his sentences.
Because this Court lacks subject matter jurisdiction over Blair's first habeas claim, it should be dismissed without prejudice. See Hill, 349 F.3d at 1091-93; DeSimone, 805 F.2d at 323-24.
After a federal defendant has begun serving his sentence, the BOP is responsible for computing any credit for prior custody. United States v. Tindall, 455 F.3d 885, 888 (8th Cir. 2006). Under the BOP's administrative review program, prisoners are allowed to challenge the BOP's computation of their credits.
Respondent has attached documents to his Response which establish that Blair has never filed any administrative remedies while in the BOP or otherwise sought to use the BOP's administrative review program to challenge the BOP's computation of his prior credits. Doc. 7-1 at 7, 69.
Accordingly, the Court recommends that Blair's claim that the BOP erred in computing his sentencing credits be denied, without prejudice. This will preserve Blair's right to refile this § 2241 claim, if necessary, after he has exhausted the BOP's administrative remedies for challenging its calculation of his prior custody credits.
IT IS THEREFORE RECOMMENDED THAT this 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus, Doc. 1, be DENIED, and the case be dismissed, without prejudice.
USSG § 5G1.3(b) (emphasis added).
