United States v. Jimmy Lee Stuckey , 33 F. App'x 245 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1398
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Jimmy Lee Stuckey, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 17, 2002
Filed: April 30, 2002
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Before LOKEN, BYE, and RILEY, Circuit Judges.
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PER CURIAM.
In November 2000, Jimmy Lee Stuckey, Jr., was sentenced to 51 months
imprisonment to be served concurrently with an undischarged military sentence. A
year later, Stuckey filed a motion with the district court entitled "NUNC PRO
TUNC." The motion sought jail credit for the time Stuckey spent in custody, prior
to the date he was first sentenced in federal court, for violating the parole on his
military sentence. The district court dismissed the motion as frivolous, and Stuckey
appealed.
We view Stuckey's "NUNC PRO TUNC" motion as a request for habeas relief
under 28 U.S.C. § 2241 filed in the wrong district court (Stuckey is incarcerated in
Beaumont, Texas) and without exhausting the Bureau of Prisons' administrative
remedies. We therefore affirm the district court's dismissal of Stuckey's motion, but
modify the district court's order to reflect a dismissal without prejudice for failure to
exhaust administrative remedies, rather than a dismissal based on frivolity. We
expressly decline to address the merit or lack thereof of Mr. Stuckey's motion, so that
Stuckey remains free to file a § 2241 petition in the proper court after exhausting his
administrative remedies. See United States v. Chappel, 208 F.3d 1069, 1069-70 (8th
Cir. 2000); United States v. Sithithongtham, 11 Fed. Appx. 657, 658 (8th Cir. 2001).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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