Reed v. United States , 262 F. App'x 114 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 29, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ROGER LEE REED,
Petitioner-Appellant,
No. 07-3252
v. (D.C. No. 05-CR-10156-MLB)
(D. Kan.)
UNITED STATES OF AMERICA,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and ANDERSON, Circuit Judges.
Roger Lee Reed, a federal prisoner proceeding pro se, appeals from the
district court’s orders denying his petitions for relief under 28 U.S.C. § 2241. In
his petitions, Mr. Reed sought credit against his federal sentence for time served
in state custody, which, he asserted, was due solely to a federal detainer. Because
the Attorney General, through the Bureau of Prisons, must first compute credit for
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
time served under 18 U.S.C. § 3585(b), we vacate the district court’s orders and
remand with instructions to dismiss Mr. Reed’s petitions without prejudice for
lack of jurisdiction.
I.
Although some of the following procedural facts are not otherwise evident
from the record provided to us, Mr. Reed has not challenged the summary set out
in the district court’s July 26, 2007, order denying his first § 2241 petition. See
R., doc. 45. 1 Accordingly, we rely on the district court’s summary.
On August 5, 2005, Mr. Reed was arrested and subsequently charged with
an unspecified offense in the District Court of Sedgwick County, Kansas, in Case
No. 05-CR2101. He was also held on a parole violation in another state matter,
Case No. 04-CR2647. He remained in continuous state custody until March 17,
2006, when his probation in Case No. 04-CR2647 was revoked, and he was
sentenced to serve the remainder of the original forty-month term in that case.
He also was sentenced to seventeen months’ custody in Case No. 05-CR2101, to
run consecutively to the sentence in Case No. 04-CR2647.
Meanwhile, on August 23, 2005, Mr. Reed was indicted in the United
States District Court for the District of Kansas for a violation of 18 U.S.C.
1
Although the record transmitted to this court by the district court clerk does
not contain Mr. Reed’s first petition or the district court’s order denying that
petition, we take judicial notice of those documents. See Binford v. United States,
436 F.3d 1252, 1256 n.7 (10th Cir. 2006).
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§ 922(g) as a felon in possession of a firearm. On February 17, 2006, a writ of
habeas corpus ad prosequendum was filed pursuant to which Mr. Reed was
delivered into federal custody on March 31, 2006. He pleaded guilty to the
federal charge on August 15 and was sentenced on November 6 to thirty-six
months’ custody, to run consecutively to the state sentences. He was returned to
state custody on November 11, 2006.
On May 31, 2007, apparently at the conclusion of his state sentences,
Mr. Reed was delivered back to federal custody to await designation by the
Bureau of Prisons (BOP). On July 16, Mr. Reed filed his first § 2241 petition,
arguing that because he was held in state custody and denied bail solely because
of a federal detainer, he was entitled to credit toward his federal sentence under
18 U.S.C. § 3585(b) for all the time he spent in custody since August 5, 2005.
The district court denied the first petition, finding that the BOP had
acknowledged, upon inquiry by Mr. Reed’s probation officer, that Mr. Reed
likely would get credit under § 3585(b) for time served from March 31, 2006,
through November 11, 2006, and again for time in federal custody commencing
on May 31, 2007, while he was awaiting designation. Based on this finding, the
court ruled that “[i]t seems” that Mr. Reed would get credit for some of the time
spent in federal detention, but that if he did not, he could “take the matter up with
the [BOP].” R., doc. 45 at 3.
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On August 10, 2007, Mr. Reed filed his second § 2241 petition, in which
he essentially reiterated the arguments made in his first petition. The district
court treated the second petition as both a motion for reconsideration and a
request that the court order the BOP to give him the credit he requested. The
court denied the second petition without discussion on August 14, 2007, and
Mr. Reed appealed.
II.
We review de novo the denial of Mr. Reed’s § 2241 petitions. See Martin
v. Rios, 472 F.3d 1206, 1207 (10th Cir. 2007). We construe Mr. Reed’s pro se
filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
As relevant here, 18 U.S.C. § 3585(b) provides that “[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 . . . that has
not been credited against another sentence.” The BOP has long been responsible
for computing sentencing credit under § 3585(b) and its predecessor, 18 U.S.C.
§ 3568 (repealed 1987), and that calculation occurs when the BOP imprisons a
defendant. See United States v. Wilson, 503 U.S. 329, 334-35 (1992). Under
Wilson, “only the Attorney General through the Bureau of Prisons has the power
to grant sentence credit in the first instance.” United States v. Jenkins, 38 F.3d
1143, 1144 (10th Cir. 1994). Until the Attorney General, through the BOP,
makes a § 3585(b) determination, the matter is not ripe for district court review,
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and the district court lacks jurisdiction. See id.; United States v. Westmoreland,
974 F.2d 736, 737-38 (6th Cir. 1992).
It is clear that at the time Mr. Reed filed his petitions, the BOP had not
made a sentencing-credit determination. Mr. Reed must first permit the BOP to
compute any sentencing credit. If he is dissatisfied with the result, he may seek
judicial review after exhausting administrative remedies. See Williams v.
O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam) (analyzing exhaustion
requirement under statutory predecessor of § 3585(b)); 28 C.F.R. §§ 542.10 to
542.19 (setting forth the BOP’s Administrative Remedy Program).
Accordingly, we VACATE the district court’s orders of July 26, 2007, and
August 14, 2007, and REMAND the case with instructions to dismiss Mr. Reed’s
petitions without prejudice for lack of jurisdiction.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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