United States District Court, E.D. California
ORDER DENYING MOTION TO VACATE, CORRECT, OR SET ASIDE
SENTENCE (DOC. NO. 26)
Marlon Hernaldo Mejia-Lopez is a federal prisoner proceeding
pro se pursuant to 28 U.S.C. § 2255 with a motion to
vacate, set aside, or correct his prison sentence. (Doc. No.
is a citizen of Mexico. (Doc. No. 22 at 2.) On April 18,
2016, movant entered a plea of guilty before this court to
one count of violating 8 U.S.C. § 1326(a) and (b)(2),
for being a deported alien found in the United States without
having obtained permission to re-enter. (Doc. No. 20.)
Pursuant to that guilty plea, this court sentenced movant to
a term of forty-six months in the custody of the United
States Bureau of Prisons with that term to run consecutive to
any undischarged term of imprisonment. (Doc. No. 25 at 2.)
September 27, 2016, movant filed the motion for relief under
§ 2255 now pending before the court. (Doc. No. 26.)
hand written submission, movant requests that his sentence be
reduced to account for fifteen months he previously spent in
custody. (Doc. No. 26 at 1.) Movant contends that he was
granted such credit on his sentence imposed earlier in state
court but not with respect to his later federal sentence
which was imposed to run consecutive to any undischarged term
courts are always under an independent obligation to examine
their own jurisdiction, . . . and a federal court may not
entertain an action over which it has no jurisdiction.”
Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir.
2000) (citations omitted); see generally Fed. R.
Civ. P. 12(h)(3). To determine whether it has jurisdiction
over an application for relief brought by a federal prisoner,
the court must first determine whether the request for relief
is properly brought pursuant to 28 U.S.C. § 2241 or
§ 2255. See Canterbury v. United States, No. CV
13-07216 JFW (AN), 2014 WL 117097, at *2 (C.D. Cal. Jan. 10,
2014); see also Hernandez, 204 F.3d at 865.
28 U.S.C. § 2255, a federal prisoner can challenge his
federal conviction or federal sentence by filing a motion
with the sentencing court. See 28 U.S.C. §
2255. However, a prisoner challenging the manner of the
execution of his sentence must generally proceed under 28
U.S.C. § 2241 in the district of his confinement.
See Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir.
2008); Hernandez, 204 F.3d at 864. For example, a
prisoner who contends that he was entitled to a downward
departure under federal sentencing guidelines, challenges the
legality of his current sentence. See Canterbury,
2014 WL 117097, at *2. Such a request is properly filed under
§ 2255 in the sentencing court. Hernandez, 204
F.3d at 864. However, a prisoner who contests the denial of
time served credits challenges the execution of his sentence
rather than the sentence itself. See United States v.
Wilson, 503 U.S. 329, 333-34 (1992); United States
v. Checchini, 967 F.2d 348, 349 (9th Cir. 1992);
United States v. Bedenfield, No. CR S-05-125 MCE
GGH, 2010 WL 744776, at *1 (E.D. Cal. Mar. 3, 2010). This is
because the district court lacks authority at the time of
sentencing to award credit for time served, since the
prerogative to grant credits in the first instance rests with
the Attorney General, acting through the Bureau of Prisons
(“BOP”). See Wilson, 503 U.S. at 334
(“[W]e conclude that § 3585(b) does not authorize
a district court to compute the credit at
sentencing.”); United States v. Peters, 470
F.3d 907, 909 (9th Cir. 2006) (“The district court
lacked authority under 18 U.S.C. § 3585(b) to grant
Peters credit for the time he had served after his
arrest.”); 18 U.S.C. § 3585(b). Thus, a request
for the award of credits for time served can be presented by
a federal prisoner only by way of a petition for habeas
corpus filed pursuant to 28 U.S.C. § 2241. See
Tucker v. Carlson, 925 F.2d 330, 331- 32 (9th Cir.
1991); United States v. Espinoza, 866 F.2d 1067,
1071 (9th Cir.1988) (“A claim . . . for credit against
a federal sentence for time spent in custody prior to
sentencing cannot be raised under 28 U.S.C. §
2255.”); Canterbury, 2014 WL 117097, at *2.
movant requests that this court “correct the 46 mos.
Term of commitment to reflect to proper jail-time
accreditations of 15 mos.” (Doc. No. 26 at 1.) Though
characterized as a motion brought under § 2255, the
court may construe the filing as a petition under § 2241
seeking an order requiring the BOP to award movant custody
credits pursuant to 18 U.S.C. § 3585(b).See Ceja-Licea
v. United States, Nos. 11cv2973 BEN, 11cr1961 BEN, 2012
WL 10688, at *1 (S.D. Cal. Jan. 3, 2012) (construing a motion
filed under 28 U.S.C. § 2255 as a petition for relief
under § 2241); see also Zichko v. Idaho, 247
F.3d 1015, 1020 (9th Cir. 2001) (noting a court's
“duty to construe pro se pleadings liberally”).
The motion before the court also indicates that, at least as
of the time of its filing, movant was incarcerated at Wasco
State Prison in Wasco, California, which is within the
territorial jurisdiction of the Eastern District.
See 28 U.S.C. § 84.As such, this court would be
the appropriate venue for movant's application for
relief, construed as a habeas petition. See 28
U.S.C. § 2241(d).
a prisoner must exhaust his federal administrative remedies
prior to filing a habeas corpus petition under 28 U.S.C.
§ 2241. See Martinez v. Roberts, 804 F.2d 570,
571 (9th Cir. 1986); see also Laing v. Ashcroft, 370
F.3d 994, 997 (9th Cir. 2004). This exhaustion requirement is
prudential rather than jurisdictional, and is thus subject to
waiver. See Brown v. Rison, 895 F.2d 533, 535 (9th
Cir.1990), overruled on other grounds by Reno v.
Koray, 515 U.S. 50, 54-55 (1995); see also Craig v.
Norwood, No. ED CV 07-1126-VBF (PJW), 2008 WL 2178596,
at *1-2 (C.D. Cal. Feb. 11, 2008). Specifically,
“[e]xhaustion of administrative remedies is not
required where the remedies are inadequate, inefficacious, or
futile, where pursuit of them would irreparably injure the
plaintiff, or where the administrative proceedings themselves
are void.” United Farm Workers of America v. Ariz.
Agr. Emp. Rel. Bd., 669 F.2d 1249, 1253 (9th Cir. 1982)
(citation omitted); (explaining that the exhaustion
requirement in § 2241 cases prudential rather than
jurisdictional, and is thus subject to waiver). “When a
petitioner does not exhaust administrative remedies, a
district court ordinarily should either dismiss the petition
without prejudice or stay the proceedings until the
petitioner has exhausted remedies, unless exhaustion is
excused.” Leonardo v. Crawford, 646 F.3d 1157,
1160 (9th Cir. 2011).
it appears from the face of his motion that movant has failed
to pursue his administrative remedies with respect to his
claim that he is entitled to the award of custody credits on
his federal sentence for time previously served. (Doc. No.
26.) Moreover, he has not alleged that any recognized
exception to the exhaustion requirement applies in his case.
(Id.) Movant has therefore failed to satisfy the
exhaustion requirement and cannot maintain an action under 28
U.S.C. § 2241 at this time. Accordingly, his motion will
be denied. See Martinez, 804 F.2d at 571 (9th Cir
the foregoing, the motion to vacate, set aside, or correct
his sentence (Doc. No. 26) is denied, and this action is
dismissed. The dismissal is without prejudice to movant
filing a habeas corpus petition pursuant to § 2241 after
exhausting his administrative remedies made available to him
by the Bureau ...