United States District Court, D. New Hampshire
Luna, pro se Seth R. Aframe, Esq.
REPORT AND RECOMMENDATION
K. Johnstone, United States Magistrate Judge.
Luna, a federal prisoner housed at the Federal Correctional
Institution in Berlin, New Hampshire, following a 2006
conviction in the United States District Court for the
District of Connecticut, has petitioned this court for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. See Doc.
No. 1. The petition challenges the Bureau of Prisons'
(“BOP”) decision denying him credit for time Luna
was incarcerated by the State of Connecticut between 1998 and
2002. Respondent has moved to dismiss the petition, Doc. No.
9, to which petitioner has responded. See Doc. No. 14.
Respondent's motion has been referred to the magistrate
judge for a report and recommendation. See LR 72.1. For the
reasons that follow, the district judge should grant the
to Dismiss Standard
moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The court
therefore accepts the factual allegations in the complaint as
true, construes reasonable inferences in petitioner's
favor, and determines whether the factual allegations in the
complaint state a claim upon which relief may be granted.
Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71
(1st Cir. 2014). Under Rule 12(b)(6) the court may consider
“facts and documents that are part of or incorporated
into the complaint, ” as well as “documents
incorporated by reference in [the complaint], matters of
public record, and other matters susceptible to judicial
notice.” Giragosian v. Ryan, 547 F.3d 59, 65
(1st Cir. 2008) (citations omitted). As petitioner is
proceeding pro se, his pleadings are construed liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
pleaded guilty in 2006 to drug and weapons charges in the
District of Connecticut and was sentenced to thirty
years' incarceration. The indictment in his case noted
that the drug conspiracy at the heart the charges began in or
about December 2002. He was arrested on the federal charges
in March 2005. Luna had previously been incarcerated in
Connecticut after state drug and assault convictions in
September 1998. He was released from state incarceration to
supervised parole in March 2002 and discharged from parole in
September 2002. In 2016, BOP denied Luna's request for
federal sentencing credit for the time he served in state
exhausting his administrative appeals, Luna petitioned this
court for relief. His petition asserts that the BOP should
include the four years he served on the Connecticut state
charges both in its calculation of the time he is serving and
its calculation of good-time credit.
Attorney General, through the BOP, has the responsibility to
administer federal sentences, United States v.
Wilson, 503 U.S. 329, 331, 335 (1992), and the exclusive
authority “to determine when to give a defendant credit
against a sentence for time he has served.” United
States v. Jones, 34 F.3d 495, 499 (7th Cir. 1994)
(citing Wilson, 503 U.S. at 335 and Kayfez v.
Gasele, 993 F.2d 1288 (7th Cir. 1993)).
to 28 U.S.C. § 2241(c)(3), a federal inmate may
challenge the execution of his sentence that is allegedly in
violation of the Constitution, laws, or treaties of the
United States. See Francis v. Maloney, 798 F.3d 33,
36 (1st Cir. 2015) (quoting 28 U.S.C. § 2241(c)(3))
(citation omitted). Such a petition can challenge the
“manner, location, or condition of a sentence's
execution.” Hernandez v. Campbell, 204 F.3d
861, 864 (9th Cir. 2000) (citations omitted). This includes
the “computation of a prisoner's sentence by prison
officials.” Jiminian v. Nash, 245 F.3d 144,
146 (2d Cir. 2001) (citing Chambers v. United
States, 106 F.3d 472, 474-75 (2d Cir. 1997)).
asserts that sections 5G1.3 and 5K2.23 of the United States
Sentencing Guidelines entitle him to a downward departure in
his sentence because his federal incarceration
“resulted from another offense that is relevant conduct
. . . to the offense of conviction.” Doc. No. 1 at 9
(quoting U.S.S.G. § 5G1.3(b). Even assuming for the sake
of argument - as the respondent does - that the conduct
underlying his 1998 Connecticut convictions is relevant to
federal offenses that began in December 2002, Luna's
argument nevertheless fails.
first instance, to the extent Luna claims that the district
court, rather than the BOP, committed a sentencing error,
such a claim is not appropriate for a § 2241 petition.
See Prescod v. Schuykill, 630 Fed.Appx. 144, 147 (3d
Cir. 2015). Petitions that attack the validity, rather than
the execution, of a sentence, generally must be presented to
the sentencing court pursuant to 28 U.S.C. § 2255.
United States v. Barrett, 178 F.3d 34, 49 (1st Cir.
as the First Circuit Court of Appeals has observed,
“[a] defendant's eligibility for [relief under
§ 5G.1.3(b)] is derivative of his eligibility for a
concurrent sentence” under 18 U.S.C. § 3584.
United States v. Ramirez, 252 F.3d 516, 519 (1st
Cir. 2001). That section delineates only two categories of
defendants who qualify for a concurrent sentence: those
subject to “multiple terms of imprisonment . . .
imposed . . . at the same time, ” and those who are
“already subject to an undischarged term of
imprisonment.” Neither of these provisions applies to
Luna. Nothing in the statute authorizes the court to apply
§ 3584 to a third category of defendants, those who have
previously served sentences, now completed, for related
crimes.United States v. Lucas, 745 F.3d
626, 630 (2d Cir. 2014) (noting that federal courts lack the
authority to order that a sentence run concurrently with a