DISCUSSION

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I. Background

27 On August 18, 2015, Petitioner was convicted in the United States District Court for the 28 1 Middle District of Pennsylvania for possession with intent to distribute heroin. (Doc. 1 at 2.1) He 2 was sentenced to serve a total federal prison term of 151 months. (Doc. 1 at 2, 12.) 3 The BOP determined that Petitioner’s sentence commenced on August 18, 2015—the date 4 he was sentenced in federal court. (Doc. 1 at 10.) He was awarded 859 days credit for time spent 5 in jail prior to sentencing. (Doc. 1 at 10.) The BOP further determined that Petitioner would be 6 entitled to 598 days of good conduct time. (Doc. 1 at 10.) The BOP computed that Petitioner’s 7 sentence would be satisfied on March 21, 2024. (Doc. 1 at 10.) 8 Petitioner submitted an inmate request with prison authorities for recalculation of his 9 sentence based on the 859-day period of time he spent in custody prior to sentencing. On 10 December 7, 2020, prison authorities responded to his request and determined that his sentence 11 had been properly computed. (Doc. 1 at 8.) 12 II. Jurisdiction 13 Writ of habeas corpus relief extends to a person in custody under the authority of the 14 United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the 15 validity or constitutionality of his conviction must bring a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that 17 sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, 18 e.g., Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v. Pontesso, 135 F.3d 19 1122, 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); 20 United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991). To receive relief under 28 U.S.C. § 21 2241, a petitioner in federal custody must show that his sentence is being executed in an illegal, 22 but not necessarily unconstitutional, manner. See, e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th 23 Cir. 1995) (contending time spent in state custody should be credited toward federal custody); 24 Jalili, 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); 25 Barden, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could 26 receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of 27

28 1 Page citations are to ECF pagination. 1 inaccurate pre-sentence report used to deny parole). 2 In this case, Petitioner alleges that he is being unlawfully denied credit against his federal 3 sentence. Thus, Petitioner is challenging the execution of his sentence rather than its imposition; 4 therefore, the claim is proper under 28 U.S.C. § 2241. 5 A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file 6 the petition in the judicial district of the petitioner's custodian. Brown, 610 F.2d at 677. 7 Petitioner is incarcerated at the United States Penitentiary located in Atwater, California, which is 8 located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a); 2241(d). 9 III. Exhaustion 10 Before filing a petition for writ of habeas corpus, a federal prisoner challenging any 11 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. 12 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 13 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that 14 federal prisoners exhaust administrative remedies before filing a habeas corpus petition was 15 judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 16 1990). Thus, “because exhaustion is not required by statute, it is not jurisdictional.” Id. If 17 Petitioner has not properly exhausted his claims, the district court, in its discretion, may either 18 “excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his 19 administrative remedies before proceeding in court.” 20 The first step in seeking administrative remedies is a request for informal resolution. 28 21 C.F.R. § 542.13. When informal resolution procedures fail to achieve sufficient results, the BOP 22 makes available to inmates a formal three-level administrative remedy process: (1) a Request for 23 Administrative Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a 24 Regional Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the 25 geographic region in which the inmate’s institution is located; and (3) a Central Office 26 Administrative Remedy Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. § 27 542.10 et seq. 28 According to the exhibits attached by Petitioner, he submitted an informal BP-8 request 1 with prison authorities, and received a response on December 7, 2020. (Doc. 1 at 8.) He has not 2 submitted a BP-9 “Request for Administrative Remedy,” a BP-10 “Regional Administrative 3 Remedy Appeal,” or a BP-11 “Central Office Administrative Remedy Appeal.” Therefore, the 4 claim has not been administratively exhausted, and the petition should be dismissed for lack of 5 exhaustion. In addition, as discussed below, the claim is without merit. 6 IV. Commencement of Federal Sentence 7 The authority to compute a federal prisoner’s sentence is delegated to the Attorney 8 General, who exercises it through the Bureau of Prisons. United States v. Wilson, 503 U.S. 329, 9 334-35 (1992); Allen v. Crabtree, 153 F.3d 1030, 1033 (9th Cir. 1998), cert denied, 525 U.S. 10 1091 (1999). “Computing a federal sentence requires two separate determinations: first, when the 11 sentence commences; and, second, to what extent the defendant in question may receive credit for 12 any time already spent in custody.” United States v. Smith, 812 F.Supp 368, 370 (E.D.N.Y. 13 1993); Jimenez v. Warden, FDIC, Fort Devens, Mass., 147 F.Supp.2d 24, 27 (D.Mass.2001); 14 Chambers v. Holland, 920 F.Supp. 618, 621 (M.D.Pa. 1996), affirmed by, 100 F.3d 946 (3rd Cir. 15 1996). A federal sentence commences “on the date the defendant is received in custody. . . to 16 commence service of sentence at the official detention facility at which the sentence is to be 17 served.” 18 U.S.C. § 3585(a); Thomas v. Brewer, 923 F.2d 1361, 1369 (9th Cir. 1991). 18 Petitioner contends his sentence should be credited for the 859-day period of time between 19 April 11, 2013, to August 17, 2015, that he spent in custody prior to sentencing. Upon review of 20 the exhibits submitted by Petitioner, it is clear that prison authorities did in fact credit his sentence 21 for this 859-day period. Petitioner was sentenced to a term of 151 months on August 18, 2015. 22 Thus, without any credits awarded against his sentence, the sentence would conclude on March 23 17, 2028 (August 18, 2015 + 151 months = March 17, 2028). (Doc. 1 at 12.) However, the BOP 24 adjusted Petitioner’s sentence start date from August 18, 2015, to April 11, 2013, to account for 25 the 859 days of jail custody (August 18, 2015 – 859 days = April 11, 2013). (Doc. 1 at 10.) 26 Utilizing the new start date of April 11, 2013, the BOP determined that Petitioner’s sentence 27 would conclude on November 9, 2025 (April 11, 2013 + 151 months = November 9, 2025). 28 (Doc. 1 at 10.) Then, accounting for good conduct time earned and projected, the BOP calculated 1 the statutory release date to be March 21, 2024 (November 9, 2025 – 598 days = March 21, 2 2024.) 3 Petitioner asserts that the BOP failed to credit his sentence for the 859-day period that he 4 spent in jail custody. As set forth above, this period of time was duly credited toward Petitioner’s 5 sentence and this claim is without merit. 6 ORDER 7 The Clerk of Court is DIRECTED to assign a District Judge to this case. 8 RECOMMENDATION 9 For the foregoing reasons, the Court RECOMMENDS that the petition for writ of habeas 10 corpus be SUMMARILY DISMISSED with prejudice. 11 This Findings and Recommendation is submitted to the United States District Court Judge 12 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 13 of the Local Rules of Practice for the United States District Court, Eastern District of California. 14 Within twenty-one (21) days after being served with a copy, Petitioner may file written objections 15 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 16 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 17 U.S.C. § 636 (b)(1)(C). Petitioner is are advised that failure to file objections within the specified 18 time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 19 1153 (9th Cir. 1991). 20

IT IS SO ORDERED.

21

Sheila K. Oberto 22 Dated: January 4, 2021 /s/ .

UNITED STATES MAGISTRATE JUDGE

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