United States v. Robert Dowling

GLD-022 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2690
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UNITED STATES OF AMERICA
v.
ROBERT DOWLING, Appellant
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On Appeal from the District Court
for the District of the Virgin Islands
(D.C. Crim. No. 07-cr-00044-001)
District Judge: Honorable Harvey Bartle, III
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
October 25, 2012
Before: FUENTES, FISHER and ROTH, Circuit Judges
(Opinion filed : November 28, 2012)
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OPINION
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PER CURIAM.
Robert Dowling entered a plea of guilty in the District Court for the Virgin Islands
to a charge of simple possession in violation of 21 U.S.C. § 844. See D.V.I. Crim. No.
07-cr-00044. In an amended sentencing judgment entered October 27, 2011, the District
Court sentenced Dowling to be imprisoned for a total term of
8 months to be served consecutively to his 81 months
sentence in criminal #2005-031. His sentence in criminal
#2005-31 and criminal #20[0]7-0044 are to run concurrently
with his sentence in criminal #2000-016. The defendant is to
receive credit for time served on sentence in criminal #05-
0031 for the period of 4/21/05–7/3/2005 and March 30, 2007.
Docket #129, D.V.I. Crim. No. 07-cr-00044.
Dowling is confined at FCI-Morgantown in West Virginia. In April 2012, he filed
in the District Court for the Virgin Islands a pro se pleading titled “Motion to Enforce
Sentence Imposed.” According to Dowling, the Bureau of Prisons (“BOP”) has
calculated his sentence as having a projected release date in July 2015, whereas Dowling
believes that, to comply with the terms of the District Court’s sentencing judgment, he
must be released from custody in June 2013. 1 Dowling asked the District Court to order
the BOP to recalculate his release date.
The government opposed Dowling’s motion, arguing, inter alia, that Dowling’s
challenge to the BOP’s sentence computation must be brought in a habeas corpus petition
under 28 U.S.C. § 2241. The District Court agreed and dismissed Dowling’s motion. It
explained that, because Dowling disputes the BOP’s computation of his term of
imprisonment, his motion is properly characterized as a challenge to the execution of his
sentence under § 2241. Further, because Dowling is confined in West Virginia, the
District Court for the Virgin Islands lacks jurisdiction over his petition. The District
1
Dowling relied upon the Court’s original sentencing judgment rather than its
amended judgment in making the argument presented in his “Motion to Enforce
Sentence.” We will assume that Dowling would make the same argument regarding
calculation of his release date under the terms of the amended judgment, which was
entered to correct a clerical mistake in the original judgment.
2
Court added that Dowling appeared not to have fully exhausted administrative remedies
with the BOP prior to filing suit. Dowling timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. “We review de novo the
District Court’s dismissal of a habeas petition on jurisdictional grounds.” Cardona v.
Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012).
We agree with the District Court that Dowling’s pro se motion is properly treated
as a § 2241 habeas petition. Where, as here, a defendant attacks the BOP’s calculation of
the sentence as “somehow inconsistent with a command or recommendation in the
sentencing judgment,” id. at 537, the claim is properly pursued in a § 2241 proceeding.
See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009) (“A challenge to the BOP’s
execution of a sentence is properly brought under 28 U.S.C. § 2241.”); Rios v. Wiley,
201 F.3d 257, 270 (3d Cir. 2000) (holding that § 2241 relief was warranted in light of
“the BOP’s failure to implement the sentence imposed by the sentencing court”); see also
Soyka v. Alldredge, 481 F.2d 303, 304 (3d Cir. 1973) (explaining that § 2241 is the
proper vehicle where the “essence of [the] petition involves the computation of time
served on [petitioner’s] sentence”).
A petition under § 2241 “is brought in the district where the prisoner is confined.”
United States v. Kennedy, 851 F.2d 689, 690 (3d Cir. 1988); see Burkey, 556 F.3d at 146(same). Dowling is confined at FCI-Morgantown, and the judicial district encompassing
that institution is the Northern District of West Virginia. The District Court for the
Virgin Islands, therefore, properly declined to exercise jurisdiction over Dowling’s
3
habeas petition. Dowling must seek relief in the appropriate district court.
Because Dowling’s appeal presents no substantial question, see 3d Cir. LAR 27.4
and I.O.P. 10.6, we will summarily affirm the District Court’s order.
4