United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, UNITED STATES DISTRICT JUDGE.
3, 2014, James Lawrence Burns entered a guilty plea to one
count of conspiracy to participate in racketeering activity.
In a judgment entered on October 10, 2014, the court
sentenced Burns to 24 0 months' imprisonment and
dismissed the remaining counts against him pursuant to the
government's motion and the parties' written plea
agreement. Burns, who is currently in custody of the Texas
Department of Criminal Justice - Correctional Institutions
Division ("TDCJ"), has now filed a Writ of Habeas
Corpus and Motion to Enforce Jurisdiction, Sentence, and
Judgment ("Burns' Motion") (Docket Entry No.
1517) to challenge the administration of his sentence under
28 U.S.C. § 2241. Burns' Motion will be denied for
the reasons explained below.
records reflect that Burns is currently incarcerated in TDCJ
as the result of a conviction that he received for possession
of with intent to deliver a controlled substance in Hood
County, Texas, Cause No. CR10213. The Presentence Report
("PSR") confirms that Burns received a sentence of
20 years' imprisonment in that case on October 30,
2007. Two months later, on December 28, 2007,
Burns received a two-year sentence for possession of a
controlled substance in Tarrant County, Texas, Cause No.
10144160. Although the two-year sentence that Burns
received in Tarrant County Cause No. 10144160 appears to have
been discharged in 2009, Burns was on parole in Hood County
Cause No. CR10213 when he committed the racketeering offenses
that resulted in his federal sentence.
now contends that he is entitled to relief under 28 U.S.C.
§ 2241, from the manner in which his sentence is being
served. Burns references an Amended Judgment
entered on March 17, 2015, in which the court clarified that
it intended the 240-month federal sentence that he received
in this case to run "concurrent with any sentence
imposed in Hood County, Texas, Cause No. CR10213 and Tarrant
County, Texas, Cause No. 1044160." Burns explains
that, after his federal sentence was originally imposed in
2014, he returned to state custody where his parole was
revoked in Hood County Cause No. CR10213 on an unspecified
date. After the revocation of his parole in that
case, Burns was sent to TDCJ, where he remains in state
custody. Reasoning that federal officials
maintained "primary custody" of him pursuant to a
writ of habeas corpus ad prosequendum when his parole was
revoked in state court,  Burns argues that he should be serving
his time in the Bureau of Prisons ("BOP") and that
his continued confinement in TDCJ is illegal. Therefore,
Burns asks the court to direct the United States Marshal to
take custody of him from TDCJ so that he can serve his state
and federal sentence concurrently in the BOP.
Standard of Review
writ of habeas corpus provides a remedy for prisoners who
challenge the "fact or duration" of their
confinement and seek "immediate release or a speedier
release from that imprisonment." Preiser v.
Rodriguez, 93 S.Ct. 1827, 1841 (1973). A petition for a
writ of habeas corpus under 28 U.S.C. § 2 241 is the
correct mechanism for challenging the manner in which a
sentence is executed. See Reyes-Requena v. United
States, 243 F.3d 893, 900-01 (5th Cir. 2001); see
also Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.
2001) (comparing collateral attacks upon a conviction or
sentence based on errors at trial or sentencing, which are
governed by 28 U.S.C. § 2255, with habeas corpus
petitions challenging the manner in which a sentence is
executed, which are governed by 28 U.S.C. § 2241) . To
prevail, the petitioner must show that " [h] e is in
custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2241(c)(3).
initial matter, Burns does not seek immediate or speedier
release from confinement. See Preiser, 93 S.Ct. at
1841. As outlined further below, he has not shown that he is
currently in custody in violation of the Constitution.
Therefore, he does not state a claim upon which relief may be
granted under 28 U.S.C. § 2241.
support of his request for relief under § 2241, Burns
complains that the BOP has not designated state prison as the
place of confinement for purposes of serving his concurrent
federal sentence. Burns faults the BOP for failing to do
so and for failing to retain primary custody of him after the
revocation of his parole in state court.
Burns appears to recognize, the United States Attorney
General, through the BOP, has the responsibility for
administering a federal sentence once it has been imposed.
See 18 U.S.C. § 3621(a); United States v.
Wilson, 112 S.Ct. 1351, 1355 (1992). The Attorney
General, through the BOP, also has discretion to designate a
state facility as the place in which a federal prisoner
serves his sentence. See 18 U.S.C. § 3621(b).
Although a district court can recommend the place of
imprisonment, see 18 U.S.C. § 3621(b) (4), that
recommendation is not binding on the BOP because "only
the Bureau of Prisons has the actual authority to designate
the place of incarceration." United States v.
Voda, 994 F.2d 149, 151-52 (5th Cir. 1993) (citations
omitted) (explaining that " [t] he Bureau of Prisons is
given this responsibility because the executive branch and
not the judicial branch is responsible for administering
sentences."). Thus, this court has no authority to
direct the BOP to designate a particular facility for service
of Burns' sentence. See Voda, 994 F.2d at 152;
United States v. Serafini, 233 F.3d 758, 778 n.23
(3d Cir. 2000) ("[A] district court has no power to
dictate or impose any place of confinement
for the imprisonment portion of the sentence.")
(emphasis in original).
extent that Burns requests a transfer from state to federal
custody, the court also lacks authority to force the United
States Marshal or the BOP to take him into federal custody. A
prisoner has no constitutional right to imprisonment in the
facility of his choice. See 01im v. Wakinekona, 103
S.Ct. 1741, 1745 (1983) (holding that a prisoner has "no
justifiable expectation that he will be incarcerated in any
particular prison"). Burns does not demonstrate that a
constitutional violation has occurred with respect to the
administration of his sentence, and he does not otherwise
show that he is entitled to relief under 28 U.S.C. §
Conclusion and Order
it is ORDERED that the Writ of Habeas Corpus
and Motion to Enforce Jurisdiction, Sentence, and Judgment
filed by James ...