Buchanan v. United States Bureau of Prisons , 133 F. App'x 465 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 18 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
NATHANIEL WAYNE BUCHANAN,
JR.,
Petitioner - Appellant, No. 04-3497
v. (D.C. No. 03-CV-3086-RDR)
UNITED STATES BUREAU OF (D. Kansas)
PRISONS; N. L. CONNOR, Warden,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Petitioner Nathaniel W. Buchanan appeals the district court’s dismissal of
his petition for a writ of habeas corpus under 28 U.S.C. § 2241. His petition
seeks credit on his federal sentence for time served in a state facility on a state
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
sentence. For substantially the same reasons set forth by the district court, we
affirm.
Petitioner, convicted of bank robbery in the United States District Court for
the Middle District of Tennessee, was sentenced November 29, 1979, to two
concurrent 20-year sentences. After he had served three years, the United States
Parole Commission (the Commission) decided to grant him parole. Because of a
detainer submitted by Tennessee, however, he was paroled to the custody of that
state’s Department of Corrections on August 17, 1982, and he served a state
prison sentence until June 6, 1986 (approximately 46 months), when he was
released subject to both federal and state parole supervision. Under the
Commission’s regulations Petitioner’s time in state custody was given the same
parole credit as if he had been released from incarceration. See 28 C.F.R. §§ 2.32
(parole to detainers), 2.52 (revocation of parole).
On August 3, 1989, the Commission revoked Petitioner’s parole for
violating the conditions of parole by driving with a suspended license, which
resulted in two days of jail time. As a result, none of the time already spent on
parole, including the time in state custody, was credited against his sentence. See
28 C.F.R. § 2.52(c)(2). Petitioner was paroled a second time on August 29, 1989,
but he again violated the terms of his parole, and it was revoked after a hearing
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on March 10, 1993. He has been imprisoned ever since, and the Commission has
determined to hold Petitioner until the expiration of his sentence.
On March 8, 2002, Petitioner filed an appeal with the Commission’s
National Appeals Board, arguing that the Commission had waived jurisdiction
over him when it paroled him to the Tennessee state detainer in 1982. The Board
denied the appeal. Petitioner also sought administrative relief through the Bureau
of Prisons, contending in an August 20, 2002, complaint that his sentence
computation was incorrect because he had not been given credit on his federal
sentence for the 46 months he served in state custody. This claim was rejected.
On February 18, 2003, Petitioner filed a § 2241 petition in the
United States District Court for the District of Kansas. He argued that under 18
U.S.C. § 3585(b) he was entitled to credit against his federal sentence for the time
served in state custody. The petition also sought credit for 15 days’ confinement
in county jail awaiting transfer to federal prison and an unspecified 160 days that
he alleged should be credited to his sentence. The district court denied the
petition, concluding that Petitioner failed to exhaust his administrative remedies
as to the 160 days, that the 15 days in county jail had in fact been credited against
his sentence, and that Petitioner was not entitled to credit against a federal
sentence for time served in state custody.
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Petitioner appeals, arguing that he is entitled to credit for the time spent in
state custody and that the district court failed to liberally construe his pro se
petition and consequently erred in its exhaustion ruling. We exercise jurisdiction
under 18 U.S.C § 2253(a) and affirm.
Petitioner’s principal claim is that he is entitled to 46 months’ credit on his
federal sentence for the time served in state custody. This claim is without merit.
See Weeks v. Quinlan, 838 F.2d 41, 45-47 (2d Cir. 1988); Garafola v. Wilkinson,
721 F.2d 420, 426 (3d Cir. 1983). Because Petitioner’s parole revocation was
based on conviction of a new offense punishable by imprisonment, the
Commission was required to order forfeiture of all prior time spent on parole,
including the time in state prison. See DeCuir v. United States Parole Com’n,
800 F.2d 1021, 1023 (10th Cir. 1986).
We also agree with the district court that Petitioner failed to exhaust
administrative remedies as to the unspecified claim for 160 days’ credit.
Petitioner must exhaust the available administrative remedies prior to pursuing
relief under § 2241. See Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986)
(per curiam); Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). Although
Petitioner pursued administrative remedies in his claim for credit for the 46
months, none of his filings make any mention of the 160 days, even if we
construe his pro se pleadings liberally.
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We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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