United States v. Ramirez ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10494
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO GALINDO RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:91-CR-33-01
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(October 18, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Gustavo Galindo Ramirez filed a Fed. R. Crim. P. 35 motion
seeking credit for time served while he was detained by state
officials prior to the imposition of his federal sentence.
A motion seeking credit for time served by the mover prior
to the date of the imposition of his federal sentence is not
cognizable under Rule 35. United States v. Garcia-Gutierrez, 835
F.2d 585, 586 (5th Cir. 1988). Because Ramirez's motion is
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-10494
-2-
challenging the manner in which his sentence is being executed
rather than the validity of the sentence imposed, it should be
construed as an action under 28 U.S.C. § 2241. United States v.
Tubwell, 37 F.3d 175, 177 (5th Cir. 1994); see United States v.
Weathersby, 958 F.2d 65, 66 (5th Cir. 1992).
Section 2241 petitions must be filed in the district where
the petitioner is incarcerated. United States v. Gabor, 905 F.2d
76, 78 (5th Cir. 1990). Ramirez was incarcerated in the Western
District of Texas at the time that he filed the motion to reduce
his sentence and he remains incarcerated at that same location.
Therefore, the district court in the Northern District of Texas
did not have jurisdiction to review his § 2241 petition.
Further, Ramirez was required to exhaust his administrative
remedies prior to filing his federal habeas petition. See United
States v. Wilson, 503 U.S. 329, 335-36 (1992); United States v.
Dowling, 962 F.2d 390, 393 (5th Cir. 1992). Ramirez has not
alleged that he has exhausted his administrative remedies and
there is no evidence in the record indicating that he has availed
himself of such remedies. The district court's denial of
Ramirez's motion is AFFIRMED based on that court's lack of
jurisdiction over the § 2241 petition.
AFFIRMED.