Opinion
98 CR 436 (RCC), 99 Civ. 3497 (RCC).
September 29, 2000
OPINION AND ORDER
Petitioner, Albert Morris, initiated this action pro se on May 13, 1999, for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Petitioner seeks jail time credit for time served in custody prior to his federal sentencing and alleges that his failure to file an appeal on this issue was the result of ineffective assistance of counsel. For the reasons set forth below, Petitioner's motion is denied.
I. BACKGROUND
On March 3, 1997, Petitioner was convicted in New York state court for criminal sale of a controlled substance and conspiracy, and was sentenced to lifetime parole. Petitioner violated the terms of his parole on October 18, 1997, when federal postal inspectors arrested him for mail theft under 18 U.S.C. § 1709. Petitioner was turned over to state custody almost immediately thereafter.
On April 28, 1998, Petitioner was writted into federal custody and subsequently entered a guilty plea on the federal charges. He was returned to state custody on May 26, 1998, and was released on June 11, 1998, pursuant to the conditions of his lifetime parole. Petitioner appeared before this Court on September 23, 1998 and was sentenced to 21 months in prison. Petitioner claims he was improperly denied jail time credit for time served between March 31, 1998, and June 11, 1998. In support of his claim, Petitioner refers to his state certificate of release, which was prepared and signed on March 31, 1998, by the New York State Division of Parole. Although the certificate indicates Petitioner's release date as June 11, 1998, Petitioner claims that he is entitled to credit against his federal sentence for the time spent in custody after his state certificate was prepared and signed.
Petitioner apparently believes that his custody should have terminated on the date that his certificate was signed. However, the certificate clearly sets the date of Petitioner's release as June 11, 1998.
II. DISCUSSION
The court notes as a preliminary matter that the petition is improperly brought under section 2255. Section 2255 addresses whether the sentence "was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ." 28 U.S.C. § 2255. In other words, section 2255 is a mechanism by which a defendant may attack the imposition of his sentence. Challenges to sentence computation, however, question the execution of a sentence and as such should be raised in a motion pursuant to 28 U.S.C. § 2241. See Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997); see also United States v. Kakar, 764 F. Supp. 369, 370 (S.D.N.Y. 1990) (court may only hear section 2255 motions that challenge the imposition of a sentence, not its execution) (citations omitted).However, given Petitioner's pro se status, the court will address the instant petition as if it were brought under the appropriate provision. See United States v. Boccadisi, 468 F. Supp. 419, 420 (E.D.N.Y. 1979) (treating an improperly captioned Section 2255 motion as a Section 2241 motion); see also Chambers, 106 F.3d at 475 ("It is routine for courts to construe prisoner petitions without regard to labeling. . . .").
Despite this re-captioning, Petitioner's motion is nonetheless procedurally barred for an alternate reason. The execution of sentences and the computation of jail time is an administrative function under the authority of the Office of the Attorney General, which has delegated this task to the Bureau of Prisons ("BOP"). See United States v. Wilson, 503 U.S. 329, 335 (1992). The Second Circuit has held that "the district court is without jurisdiction to compute sentencing credit if a prisoner . . . has not sought administrative review" from the BOP. United States v. Whaley, 148 F.3d 205, 207 (2d Cir. 1998). An inmate may not seek jail time credit from the federal courts without first exhausting his administrative remedies pursuant to 28 C.F.R. § 542.10-16.See Martinez v. United States, 19 F.3d 97, 98 (2d Cir. 1994). Here, Petitioner does not claim to have availed himself of these procedures. Nor does he contend that the available administrative remedies are inadequate or should otherwise be waived.
Indeed, the government states that Petitioner has not exhausted his administrative remedies. See Government's Letter-Brief dated May 30, 2000 ("Gov. Brief") at 3.
Moreover, a section 2241 motion must be filed with a court in the district where the petitioner is incarcerated. See Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976). Accordingly, as Petitioner Morris is incarcerated at F.C.I. Allenwood, the U.S. District Court for the Middle District of Pennsylvania is the proper forum to address such a motion and any subsequent petition should be filed there. See Jimenez v. United States, No. 99 Civ. 10798 (SAS), 2000 WL. 28164, at *3 (S.D.N Y Jan. 14, 2000).
Petitioner's allegation of ineffective assistance of counsel appears to be another attempt to place Petitioner's request for jail time credits before the review of this Court. Petitioner alleges that counsel failed to file an appeal of the sentence on this issue, despite Petitioner's direction that he do so. Petitioner contends that this failure constitutes ineffective assistance of counsel in violation of the Sixth Amendment to the Constitution.
To make out a claim for ineffective assistance of counsel, petitioner generally must show that counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by that deficiency. See Roe v. Flores-Ortega, ___ U.S. ___" 120 S.Ct. 1029, 1034 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052 (1984)). Counsel's conduct will be deemed unreasonable if he "disregards specific instructions from the defendant to file a notice of appeal." Id. at 1035.
Here, Petitioner's states in an unsworn affidavit that "[c]ounsel never filed an appeal despite my request for him to do so." Petitioner's Affidavit at ¶ 8. Petitioner's declaration is contradicted, however, by counsel's denial that such a request was made. See Gov. Brief at 4. Moreover, counsel has submitted his correspondence with Petitioner, which does not contain any reference to such a request. See Id. (attachments). Given Petitioner's failure to provide any substantiation for his allegation, the petition does not warrant further review by this Court. See Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991) (on collateral review "defendant must produce something more than a bare, unsubstantiated, thoroughly self-serving" statement) (cited in United States v. Castillo, 14 F.3d 802, 805 (2d Cir. 1994)); Nix v. United States, No. 00-CV-2829, 2000 WL 1228992, at *4 (E.D.N.Y. July 21, 2000) (finding that self-serving statements by petitioner and his mother in sworn affidavits were insufficient to justify a hearing on the issue of whether petitioner requested an appeal).
Moreover, the court notes that Petitioner suffered no prejudice from any alleged failure to appeal on the issue of jail time credits. As discussed above, the federal courts do not have jurisdiction to determine whether Petitioner is entitled to credits for time spent in custody. See United States v. Montez-Gaviria, 163 F.3d 697, 700-01 (2d Cir. 1998) (ordering district court to strike judgment regarding jail time credits as court had exceeded its authority). Therefore, the Court of Appeals was without power in any event to provide the requested relief.
III. CONCLUSION
For the foregoing reasons, Petitioner's motion is denied.