United States District Court, D. New Jersey
September 12, 2005.
WILLIAM TURCIOS, Petitioner,
JONATHAN C. MINER, Warden, Respondent.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Petitioner William Turcios, a prisoner currently confined at
the Federal Correctional Institution at Fairton, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241.*fn1 The respondent is Warden Jonathan C.
Miner. Because it appears from a review of the Petition that
Petitioner is not entitled to issuance of the writ, the Court
will dismiss the Petition without prejudice. See
28 U.S.C. § 2243.
Petitioner asserts that he is presently detained beyond the
proper end of his sentence, because he is not being given correct
credit for detention served prior to the commencement of his
sentence. Petitioner seeks credit for time during which he was
detained in state custody on two separate sets of charges arising
out of the same incident that gave rise to the federal charges.
In addition, Petitioner seeks credit for time spent in state
legal custody, but in federal physical custody pursuant to a writ
of habeas corpus ad prosequendum. Following imposition of the
federal sentence, Petitioner was returned to state custody where
the prosecutor dismissed certain charges, Petitioner pleaded
guilty to others, and the state court sentenced him to time
served. Petitioner contends that the language of the federal
Judgment and Commitment Order supports his arguments.
Petitioner states that he has not exhausted his administrative
remedies. (Petition at 2.)
Here, Petitioner asks this Court to determine what credit he
should receive for time served and to order his release. II. STANDARDS FOR A SUA SPONTE DISMISSAL
United States Code Title 28, Section 2243 provides in relevant
part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97
, 106 (1976); Haines v. Kerner, 404 U.S. 519
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116
, 118 (3d Cir. 1998); Lewis
v. Attorney General, 878 F.2d 714
, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552
, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912
(1970). Nevertheless, a federal
district court can dismiss a habeas corpus petition if it appears
from the face of the petition that the petitioner is not entitled
to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996);
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied,
490 U.S. 1025
(1989). See also 28 U.S.C. §§ 2243, 2254, 2255.
The Attorney General is responsible for computing federal
sentences for all offenses committed on or after November 1, 1987, United States v. Wilson, 503 U.S. 329 (1992) and
18 U.S.C. § 3585, and the Attorney General has delegated that
authority to the Director of the Bureau of Prisons,
28 C.F.R. § 0.96 (1992).
Computation of a federal sentence is governed by
18 U.S.C. § 3585, and is comprised of a two-step determination of, first, the
date on which the federal sentence commences and, second, the
extent to which credit is awardable for time spent in custody
prior to commencement of the sentence.
(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 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.
18 U.S.C. § 3585(a), (b).
"Multiple terms of imprisonment imposed at different times run
consecutively unless the Court orders that the terms are to run
concurrently." 18 U.S.C. § 3584(a). A federal court's authority
to order that terms of imprisonment imposed at different times shall run concurrently is limited, however, to
cases in which the federal term of imprisonment is imposed on a
defendant who is already subject to an undischarged term of
imprisonment. 18 U.S.C. § 3584(a). Where a state sentence has not
yet been imposed, a federal court has no authority to order that
its term of imprisonment shall run concurrently with a term of
imprisonment that may be imposed in the future with respect to
pending state charges. See Romandine v. United States,
206 F.3d 731, 737 (7th Cir. 2000); United States v. Quintero,
157 F.3d 1038 (6th Cir. 1998); United States v. Smith,
101 F.Supp.2d 332, 342-47 (W.D. Pa. 2000); United States v.
McBride, 2000 WL 1368029 (E.D. Pa. Sept. 13, 2000). Cf.
Barden v. Keohane, 921 F.2d 476, 484 (3d Cir. 1990) (noting
that "the sentencing court not only was unable to order
concurrency because it sentenced Barden before the state did but
was actually powerless to do so"). Contra United States v.
Williams, 46 F.3d 57, 58-59 (10th Cir.), cert. denied,
516 U.S. 826 (1995).
The BOP, in the exercise of its discretion, also has authority
to designate as a place of federal confinement, nunc pro
tunc, the facilities in which Petitioner served his state
sentence. See Barden, 921 F.2d at 480-83 (a defendant is
entitled to "fair treatment" on his application for a nunc
pro tunc designation); 18 U.S.C. § 3621(b).*fn2 The decision
of the BOP is subject to judicial review only for abuse of
discretion. Barden, 921 F.2d at 478.
Here, however, Petitioner states that he has not exhausted his
administrative remedies.*fn3 Although 28 U.S.C. § 2241
contains no statutory exhaustion requirement, a federal prisoner
ordinarily may not bring a petition for writ of habeas corpus
under 28 U.S.C. § 2241, challenging the execution of his
sentence, until he has exhausted all available administrative
remedies. See, e.g., Callwood v. Enos, 230 F.3d 627, 634
(3d Cir. 2000); Arias v. United States Parole Comm'n,
648 F.2d 196, 199 (3d Cir. 1981); Soyka v. Alldredge, 481 F.2d 303, 306
(3d Cir. 1973). The exhaustion doctrine promotes a number of
(1) allowing the appropriate agency to develop a
factual record and apply its expertise facilitates
judicial review; (2) permitting agencies to grant the
relief requested conserves judicial resources; and
(3) providing agencies the opportunity to correct
their own errors fosters administrative autonomy.
Goldberg v. Beeler, 82 F.Supp.2d 302
, 309 (D.N.J. 1999),
aff'd, 248 F.3d 1130 (3d Cir. 2000). See also Moscato v.
Federal Bureau of Prisons, 98 F.3d 757
, 761 (3d Cir. 1996).
Nevertheless, exhaustion of administrative remedies is not
required where exhaustion would not promote these goals. See,
e.g., Gambino v. Morris, 134 F.3d 156
, 171 (3d Cir. 1998)
(exhaustion not required where petitioner demonstrates futility);
Lyons v. U.S. Marshals, 840 F.2d 202
, 205 (3d Cir. 1988)
(exhaustion may be excused where it "would be futile, if the
actions of the agency clearly and unambiguously violate statutory
or constitutional rights, or if the administrative procedure is
clearly shown to be inadequate to prevent irreparable harm");
Carling v. Peters, 2000 WL 1022959, *2 (E.D. Pa. 2000) (exhaustion not required where delay would
subject petitioner to "irreparable injury").
Similarly, exhaustion of administrative remedies is not
required where the issue presented involves only statutory
construction, because there is no need for an administrative
agency to develop a factual record or to apply its expertise with
respect to the circumstances presented. See Bradshaw v.
Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981) (citing U.S. ex re.
Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656, 659 (3d
Cir. 1973), rev'd on other grounds, 417 U.S. 653 (1974)).
Here, Petitioner alleges no facts that would suggest that
exhaustion would be futile or otherwise excused. To the contrary,
the disposition of Petitioner's claim necessarily rests upon
resolution of a number of factual issues. In addition, there may
be opportunity for exercise of discretion. Accordingly, the
Petition must be dismissed for failure to exhaust administrative
For the reasons set forth above, the Petition will be dismissed
without prejudice. An appropriate order follows.
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