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Carter v. Davis

United States District Court, N.D. Texas, Abilene Division

May 22, 2017

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by Petitioner James Christopher Carter, a state inmate now confined at the Texas Department of Criminal Justice (TDCJ) Terrell Unit.[1] In addition to the amended § 2241 petition and exhibits, Respondent filed a motion to dismiss and brief in support. (ECF Nos. 17, 24.) Petitioner did not file a response, but has filed another motion seeking the same relief sought in the § 2241 petition itself. (ECF No. 25.) After considering the pleadings and relief sought by Petitioner, and the applicable law, the Court has concluded that the § 2241 petition must be denied, in part, and dismissed in part.

         I. BACKGROUND and CLAIM

         Petitioner James Christopher Carter is serving a ten-year state prison term for forgery of a government instrument entered in the 51st District Court of Tom Green County, Texas in case number A-14-0989-SB. Respondent's Motion to Dismiss, ECF No. 24, at 1; Exhibit A. Carter recites that before he received this state sentence, he was sentenced in United States v. Carter, No. 6:14-035-C (1) for manufacturing counterfeit United States currency and aiding and abetting in violation of 18 U.S.C. §§ 471 and 2, and received a term or imprisonment of 37 months. Amended Petition, ECF No. 17, at 2-3. Petitioner reports that his federal sentence was imposed to run concurrently with any state sentence imposed in case number A-14-0988-CB, and Carter's federal judgment provides for concurrent sentences on these charges.[2] Carter reports that after the sentencing in federal court, he was bench warranted back to Tom Green County where he was then sentenced on the state charge. Pet. at 6. Carter seeks to be placed in federal custody. Pet. at 7.

         II. ANALYSIS

         An inmate may challenge the execution of his federal sentence in a § 2241 petition in the district of his confinement. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.2000) (“A section 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration.”). Carter's claims challenge the execution of his federal sentence, thus his claims are properly pursued in a § 2241 petition in this Court. See Castro Flores v. Dretke, 120 F.App'x 537, 538-39 (5th Cir.2005) (claims by inmate in state custody that BOP was failing to credit his federal sentence properly pursued under 28 U.S.C. § 2241); see also United States v. Miller, 594 F.3d 1240, 1241 (10th Cir.2010) (state inmate's request for nunc pro tunc designation in regards to future federal sentence is properly pursued under 28 U.S.C. § 2241);

         Although sentence-execution claims are proper in a § 2241 petition, an inmate does not have a constitutional right to incarceration in any particular prison system. See Simpson v. Cockrell, No. 01-10415, 2001 WL 1075829, at *1 (5th Cir. Aug. 21, 2001) (citations omitted). Instead, the facility at which he serves concurrent sentences is “a matter for the two sovereigns involved to decide.” Id. Likewise, “[n]o binding legal authority requires the federal BOP ... to comply with a state court's sentencing order that his federal sentence run concurrently with his state sentences.” Castro Flores, 120 F.App'x at 539 (citing Leal v. Tombone, 341 F.3d 427, 429-30 (5th Cir.2003) (affirming dismissal of habeas petition where petitioner sought order directing BOP to recognize state-court order for concurrent sentence)). Finally, there is “no authority requir[ing] federal marshals to immediately deliver a federal prisoner to a federal facility for the service of his sentence.” Id. So, to the extent Petitioner is requesting an Order directing his immediate placement in a federal prison, his petition under 28 U.S.C. § 2241 must be denied.[3]

         Petitioner does not recite that he has taken any efforts to pursue any remedy through the Bureau of Prisons (BOP). Under certain circumstances related to the imposition of the underlying sentences, the BOP has the statutory authority to cause a federal sentence to run concurrently with a state sentence by designating nunc pro tunc an inmate's state prison as the place of federal confinement. See Barden v. Keohane, 921 F.2d 476, 478 (3d Cir.1990); Rodriguez v. Pitzer, 76 F. App'x. 519, 520 (5th Cir. 2003) (unpublished) (citing Barden).[4] A § 2241 habeas petition requesting a nunc pro tunc designation “is not ripe until the BOP makes a final decision on the prisoner's nunc pro tunc request.” Pierce v. Holder, 614 F.3d 158, 160 (5th Cir.2010) (holding district court did not have jurisdiction to rule on the merits of petitioner's unripe habeas petition).

         Also, federal prisoners are required to exhaust administrative remedies with the BOP before filing a petition under 28 U.S.C. § 2241. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994); see also U.S. v. Setser, 607 F.3d 128, 133 (5th Cir.2010); (exhaustion required in context of an inmate's challenge to failure to provide credit for time spent in state custody). The Supreme Court has identified several sound policy bases supporting mandatory exhaustion requirements, including: (1) avoiding premature interruption of the administrative process; (2) allowing the agency to develop the necessary factual background upon which decisions should be based; (3) giving the agency a chance to discover and correct its own errors; and (4) avoiding the possibility that frequent and deliberate flouting of the administrative process could weaken the effectiveness of an agency by encouraging people to ignore its procedures. See McKart v. United States, 395 U.S. 185, 193-195 (1969). Exceptions to the exhaustion requirement apply only in extraordinary circumstances, and the petitioner bears the burden of demonstrating the inappropriateness or futility of administrative review. Fuller, 11 F.3d at 62.

         The Respondent has moved to dismiss Petitioner's § 2241 petition to the extent he seeks relief against his federal sentence, and Petitioner has not filed any response to that motion. Thus, to the extent Petitioner seeks additional relief against the manner in which his federal sentence may be calculated, he has not exhausted his administrative remedies, and such claim will be dismissed without prejudice.

         III. ORDER

         It is therefore ORDERED that the Respondent's motion to dismiss (ECF No. 24), is GRANTED, only to the extent that if Petitioner seeks relief against his federal sentence, the § 2241 petition will be dismissed without prejudice for lack of exhaustion; otherwise the alternative grounds in the Respondent's motion to dismiss are not reached.

         It is further ORDERED that Petitioner's motion for the Court to remove Petitioner to federal custody (ECF No. 25) is DENIED.

         It is further ORDERED that Petitioner James Christopher Carter's petition for relief under 28 U.S.C. § 2241 seeking to be removed to federal custody is DENIED, and all other claims for relief in the petition for relief under ...

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