Falcetta v. United States ( 2021 )

Case: 20-50247 Document: 00516115995 Page: 1 Date Filed: 12/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 3, 2021
No. 20-50247
Lyle W. Cayce
Clerk
Joseph James Falcetta, Jr.,
Petitioner—Appellant,
versus
United States of America,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CV-368
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Per Curiam:*
Federal courts do not have jurisdiction over grievances related to
computation of sentences and sentencing credit until exhaustion of
administrative review by the Bureau of Prisons. United States v. Dowling, 962
F.2d 390, 393 (5th Cir. 1992) (citing United States v. Wilson, 503 U.S. 329,
335–36 (1992)). Joseph James Falcetta, Jr., federal prisoner # 06247-078,
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-50247 Document: 00516115995 Page: 2 Date Filed: 12/03/2021
No. 20-50247
appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition, which
challenged the Bureau’s refusal to grant him sentencing credit toward his
120-month federal sentence for time spent serving his 44-year state sentence.
The district court found it lacked jurisdiction over Falcetta’s petition
because he failed to exhaust administrative remedies before filing the
petition. We agree; the district court’s judgment is AFFIRMED.
I.
In 1996, Falcetta and two others robbed a shuttle bus transporting
Texans to a Louisiana casino. Falcetta and his partners in crime boarded the
bus with shotguns they had modified by sawing off the barrels. Before the
robbers could abscond from the bus, Texas sheriff deputies stopped the bus
and arrested them. A month later, Falcetta was transferred to the custody of
the U.S. Marshals Service. In June 1997, he stood trial and was sentenced by
the Eastern District of Texas to 71 months in prison for armed robbery of a
motor vehicle, under 18 U.S.C. § 2119, and 120 months in prison for
possession of a short barreled shotgun during a crime, under 18 U.S.C.
§ 924(c).
As the Marshals processed Falcetta for service of his federal
sentences, they discovered that Falcetta, under a writ of habeas corpus ad
prosequendum, 1 was still under the primary custody of the sheriff’s office. In
September 1997, Falcetta was returned to the sheriff’s office. In December
1997, Falcetta was sentenced to 44 years of imprisonment by a Texas state
court.
1
A writ of habeas corpus ad prosequendum is “[a] writ used in criminal cases to bring
before a court a prisoner to be tried on charges other than those for which the prisoner is
currently being confined.” Habeas Corpus, Black’s Law Dictionary (11th ed. 2019).
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Case: 20-50247 Document: 00516115995 Page: 3 Date Filed: 12/03/2021
No. 20-50247
In December 2018, while still imprisoned in Texas, Falcetta filed his
petition for a writ of habeas corpus under 28 U.S.C. § 2241. Falcetta alleged
that his initial transfer to the Bureau of Prisons by the U.S. Marshals Service
before his state conviction commenced his federal sentence. He contended
that because the Bureau executed his sentence in 1997, all time served since
then should be credited against his time to be served in federal custody.
Falcetta’s 71-month federal sentence for armed robbery was served
concurrently with his state sentence. But his 120-month federal sentence was
not, because 18 U.S.C. § 924(c)(1)(D)(ii) prevents that sentence from
running concurrently with any other. Roughly two months after filing his
petition, Falcetta was paroled by the state of Texas and transferred to the
custody of the Bureau for service of his federal 120-month sentence. The
district court dismissed Falcetta’s petition, finding, inter alia, that it lacked
jurisdiction to consider it because Falcetta had failed to exhaust
administrative remedies before filing his petition.
II.
We review the district court’s dismissal de novo. Garcia v. Reno, 234
F.3d 257, 258 (5th Cir. 2000). Falcetta presents several errors allegedly
committed by the district court. First, he asserts that the district court
improperly dismissed his petition on the ground that he failed to exhaust his
administrative remedies. Falcetta reasons that because he was a state
prisoner and not in federal custody when he filed his petition, he was not
bound by the Bureau’s administrative remedies program. He alternatively
contends that he exhausted his administrative remedies while his petition
was pending. Next, Falcetta renews his arguments before the district court
related to the merits of his sentencing calculation claim. He avers that the
Government has effectively conceded the merits and has acted in bad faith in
opposing his claim. Finally, he argues that his 18 U.S.C. § 924(c) conviction
is invalid under United States v. Davis, 139 S. Ct. 2319 (2019).
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Falcetta raises his first argument, that as a state prisoner he was not
bound by the Bureau’s administrative process at the time he filed his petition,
for the first time on appeal. Therefore, we decline to address it. See Ray v.
Commissioner, 13 F.4th 467, 476 (5th Cir. 2021). Falcetta also raises his Davis
argument for the first time on appeal, so we likewise decline to address it. Id.We do not address Falcetta’s remaining merits arguments because the
record establishes that the Bureau had not made a final decision on Falcetta’s
sentencing-credit request at the time Falcetta filed his § 2241 petition.
Falcetta’s assertion that he exhausted his administrative remedies is belied
by the documents he submitted in the district court. His evidence of
exhaustion, a letter from an Administrative Remedy Coordinator for the
Bureau, notified Falcetta that he did not include certain necessary documents
in his appeal and invited him to submit them so that his claim could be
considered. This document plainly demonstrates Falcetta did not exhaust
his administrative remedies, but even if it did, it was not generated until
August 30, 2019, almost a year after Falcetta filed his petition. Dismissal for
lack of jurisdiction was thus appropriate. See Pierce v. Holder, 614 F.3d 158,
160 n.1 (5th Cir. 2010).
AFFIRMED.
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