The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner was arrested by the Fort Worth Texas Police Department on August 25, 1993, for aggravated robbery. See Hazelton Declaration, Exhibit 1, ¶ 3 and Exhibit 2, attached to Answer. On November 4, 2003, Petitioner was indicted in the United States District Court for the Northern District of Texas, for one count of bank robbery, three counts of obstruction of commerce by robbery, and four counts of using and carrying a firearm during a crime of violence. Exhibit 1, § 3.
On November 10, 1993, a writ of habeas corpus ad prosequendum was issued for the production of Petitioner from Tarrant County, Texas, to the Northern District of Texas for arraignment on the federal charges.
Petitioner was transported temporarily from Tarrant County by the United States Marshals ("USM") on November 17, 1993. Id., ¶ 5 and USM Form 129, Northern District of Texas, Exhibit 3.
Primary jurisdiction of Petitioner remained with the state. Exhibit 1, ¶ 5. On February 16, 1994, Petitioner was convicted on all charges in the Northern District. Exhibit 1, ¶ 6 and Judgment in a Criminal Case, Exhibit 4.
The state charge for aggravated robbery was dismissed on November 19, 1993; however, a state parole violators warrant was issued and executed on August 26, 1993, and his parole was revoked on December 17, 1993. Exhibit 1, ¶ 5 and Texas Department of Criminal Justice Data Sheet, Exhibit 5.
On May 6, 1994, Petitioner was sentenced in the District Court to a term of 802 months on the federal charges. Exhibit 1, ¶ 6 and Exhibit 4. The District Court did not indicate whether the federal term was consecutive or concurrent to the state term. Id.
On May 10, 1994, Petitioner was returned to custody of the State of Texas. Exhibit 1, ¶ 7. Petitioner completed his state term for the parole violation on October 6, 2006, and was released from state custody. Id.; Exhibit 7. Petitioner then began serving his federal sentence on October 6, 2006. Exhibit 1, ¶ 7 and USM Form 129, Exhibit 6. Petitioner's projected release date is September 3, 2064, via good conduct time. Exhibit 8, Sentencing Monitoring Computation Data.
Petitioner filed the instant federal petition for writ of habeas corpus on May 13, 2008. Respondent filed an answer to the petition on September 12, 2008, and Petitioner filed a traverse on September 30, 2008.
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or constitutionality of his conviction must bring a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). To receive relief under 28 U.S.C. § 2241 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not necessarily unconstitutional, manner. See e.g. Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 1995) (contending time spent in state custody should be credited toward federal custody); Jalili, 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parole). A ...