Charles Edward Powell, Jr. v. Martha L. Jordan , 159 F. App'x 97 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 13, 2005
No. 05-11543 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-02506-CV-H-S
CHARLES EDWARD POWELL, JR.
Petitioner-Appellant,
versus
MARTHA L. JORDAN, Warden, Federal Correctional
Institution, Talladega AL.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 13, 2005)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Charles Edward Powell, a federal prisoner appeals pro se the
denial, on the merits, of his habeas corpus petition, 28 U.S.C. § 2241, in which he
contends that he has completely served his federal sentences. Powell was arrested
and held on Alabama state charges prior to having his federal probation revoked
and an 18-month sentence imposed on federal charges to run consecutively to any
sentence imposed for the pending state charges. While still imprisoned in
Alabama, Powell pleaded guilty to federal charges and received a 46-month
consecutive federal sentence. Powell argues that the district court’s finding that he
failed to exhaust administrative remedies was incorrect because pursuing an
administrative remedy would have been futile and a waste of resources, he had
attempted preliminary informal inquiries by requesting that his release date be
verified, and his remedies were waived when the warden forwarded his inquiry to
the BOP’s regional administrator. He also argues that he was not required to seek
administrative remedies because he was challenging the manner and condition of
his sentence. On the merits, he argues that the denial of his petition should be
reversed because it was based on the misrepresentation that he was in state custody
at the time of his Alabama arrest, but he was actually under federal custody at the
time because he was serving a term of supervised release. He contends that the
record does not show an agreement between the federal and state government
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regarding whether his federal or state sentence should be served first, and there is
no evidence that the state sought primary custody of him. He argues that the
government and the district court ignored the fact that his state sentence was
ordered to run concurrently to his federal sentence. He also argues that he began to
serve his federal sentence on February 23, 1999, after he received his first federal
sentence and was taken into custody by the United States Marshal (“Marshal”), and
his incarceration in county jail was the practical equivalent to federal incarceration.
Lastly, he argues that there is no proof in the record that the federal court ever
surrendered custody of him to the state and, thus, he is entitled to 638 days credit
against his federal sentence for the total amount of time he spent in state prison.
When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error. LeCroy v. Sec’y, Florida Dept. of Corr., 421 F.3d 1237, 1259
(11th Cir. 2005) (§ 2254 petition). Typically, collateral attacks on the validity of a
federal sentence must be brought under § 2255. Darby v. Hawk-Sawyer, 405 F.3d
942, 944 (11th Cir. 2005). Section 2241 provides a limited, additional basis for
habeas actions brought by federal prisoners. 28 U.S.C. § 2241. Prisoners seeking
relief pursuant to § 2241 are subject to administrative exhaustion requirements.
Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir.) cert. denied, 541 U.S. 1036(2004).
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Title 28 § 542.10 et. seq., of the Code of Federal Regulations sets out the
process by which a federal prisoner can “seek formal review of an issue relating to
any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a). Pursuant to the
procedure, an inmate must first present an issue of concern informally to staff,
unless the informal resolution attempt is waived by the warden, and then must
submit a formal written request (BP-9). Id. at §§ 542.13(a),(b), 14(a). An inmate
who is not satisfied with the warden’s response may submit an appeal on the
appropriate form (BP-10) to the appropriate regional director, and if he is not
satisfied with the regional director’s response, may submit an appeal on the
appropriate form (BP-11) to the general counsel. Id. at § 542.15(a). The only
potentially applicable exception to the formal process is that an inmate who
reasonably believes the issue is sensitive and his safety and well-being will be
placed in danger if the request becomes known at the institution may submit his
complaint directly to the regional director. Id. at § 542.14(d)(1).
Pursuant to 18 U.S.C. § 3585:
(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
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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]f a defendant is in state custody and he is turned over to federal officials
for federal prosecution, the state government’s loss of jurisdiction is only
temporary. The prisoner will be returned to state custody at the completion of the
federal proceedings or the federal sentence if the federal government wishes to
execute it immediately.” Causey v. Civiletti, 621 F.2d 691, 693 (5th Cir. 1980).
The record clearly demonstrates that Powell never pursued the formal
administrative remedy process and, thus, failed to exhaust his administrative
remedies, and no exception applies. Additionally, Powell was not entitled to credit
against his federal sentence for time he spent in federal custody pursuant to two
writs of habeas corpus ad prosequendum, or for time he spent in state prison
serving his state sentence. The record also shows that Powell was given credit on
his federal sentence for time spent awaiting trial on state charges that was not
credited against his state sentence. Therefore, because the district court correctly
denied Powell’s petition, we affirm its judgment.
AFFIRMED.
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