United States v. Storm ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 16, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-4179
v. District of Utah
DAVID PAUL STORM, (D.C. No. 1:01-CR-4 TS)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY and McCONNELL, Circuit Judges.
On January 17, 2001, Petitioner David Storm was charged by indictment
with two counts of being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1). At the time of the indictment, Mr. Storm was
incarcerated in a Utah state prison. He was brought before the United States
District Court for the District of Utah on a writ of habeas corpus in May of 2001,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and he subsequently pleaded guilty to the unlawful transportation of firearms by a
previously convicted felon in violation of 18 U.S.C. § 922(g)(1). The court
sentenced him to 110 months’ imprisonment to run concurrently with a previously
imposed state sentence, followed by 36 months’ supervised release.
In January of 2006, Mr. Storm filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. Because he filed his petition after the
one-year statute of limitations expired, the court dismissed it. In the alternative,
the court found that his claims were meritless.
In June of 2007, Mr. Storm filed a petition entitled “Motion to Clarify
Sentence Description On Judgment In A Criminal Case.” He argued that he was
entitled, under the sentence imposed by the federal district court, to credit for his
time served dating back to August 21, 2000—the date he was received into state
custody. The Bureau of Prisons had calculated his credit for time served from
August 14, 2001—the date he was sentenced in federal court. Construing his
motion as a petition under 28 U.S.C. § 2241, the district court dismissed it
without prejudice because it was not filed in the “district where [Mr. Storm] is
currently confined.” R. Vol. I, Mem. & Order, at 2 (internal quotation marks
omitted). Mr. Storm then filed a motion for reconsideration, arguing that he was
not asking for a review of the Bureau of Prison’s calculations, but rather a
“clarification of what ha[d] already occurred during his sentencing hearing,” so
that the “oral sentence imposed by” the sentencing court could be “put[] into
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effect.” R. Vol. I, Motion for Reconsideration, at 1–2. The district court, in a
longer opinion, again denied Mr. Storm’s petition. He now appeals from this
denial.
Before reaching the merits, we must determine how to construe Mr.
Storm’s habeas petition. Though his argument is not entirely clear, we best
understand it as a request for a nunc pro tunc order effectuating what he believes
to be the sentencing court’s oral judgment. His claim, then, is not that his
conviction and sentence were improper, which would fall within 28 U.S.C. §
2255, but that his sentence, as he understands it, is being improperly executed by
the Bureau of Prisons. This falls squarely within § 2241. Davis v. Roberts, 425
F.3d 830, 833 (10th Cir. 2005) (“a challenge to the execution of a sentence should
be brought under 28 U.S.C. § 2241.”). “Requests for sentence credit, or for
recalculation of time yet to serve . . . must be presented to the Attorney General
(or [his] delegate, the Bureau of Prisons), and adverse decisions may be reviewed
by an action under 28 U.S.C. § 2241 . . . .” Romandine v. United States, 206 F.3d
731, 736 (7th Cir. 2000).
A petition brought under 28 U.S.C. § 2241 “must be filed in the district
where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996); see also 28 U.S.C. § 2241(d); United States v. Mittelsteadt, 790 F.2d 39,
41 (7th Cir. 1986); United States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986).
In Mr. Storm’s case, this is the District of Colorado. He filed his § 2241 petition
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in the District of Utah, which lacked jurisdiction to rule on the merits of the
claim. The district court’s original dismissal without prejudice was therefore
appropriate, and so we must vacate the district court’s subsequent response to Mr.
Storm’s motion for reconsideration, which it decided on the merits. The district
court is directed to dismiss the petition without prejudice, so that Mr. Storm can
refile his petition in a court of competent jurisdiction. 1
The judgment of the United States District Court for the District of Utah is
VACATED and the case is REMANDED for further proceedings in accordance
with this opinion.
Entered for the Court,
Michael W. McConnell
Circuit Judge
1
We remind Mr. Storm that he must exhaust his administrative remedies
with the BOP, if he has not already done so.
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