Charles Edward Powell, Jr. v. Martha L. Jordan ( 2005 )


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  •                                                          [DO NOT PUBLISH]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).
    3
    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
    4
    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.
    5
    

Document Info

Docket Number: 05-11543; D.C. Docket 03-02506-CV-H-S

Judges: Carnes, Dubina, Per Curiam, Pryor

Filed Date: 12/13/2005

Precedential Status: Non-Precedential

Modified Date: 8/2/2023