United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE
civil action was opened because Benjamin Shane Foster (a
federal inmate confined at the Marianna Federal Correctional
Institution in Marianna, Florida) filed a motion (Doc. # 2)
in his criminal case seeking relief that can be granted only
through a writ of habeas corpus pursuant to 28 U.S.C. §
2241. Foster v. United States, No. 3:07-CR-150-MHT
(M.D. Ala. Aug. 31, 2017) ECF No. 83. That motion was
construed as a petition for such a writ, stricken from his
criminal case, and docketed in this civil action.
(See Doc. # 1.) Mr. Foster has since filed a motion
to amend his petition to change the relief he seeks (Doc. #
5), which he supplemented in response to an order entered by
the Magistrate Judge (Doc. # 7). Because the relief he now
seeks can be granted only in his criminal case and not in
this action, this action is due to be dismissed, and Mr.
Foster’s motion to amend (along with the response he
filed to supplement it) will be docketed in his criminal
petition, Mr. Foster represents that he was sentenced to a
term of imprisonment by this court in Foster v. United
States, No. 3:07-CR-150-MHT (M.D. Ala.), on August 20,
2008, and then subsequently sentenced to a term of
imprisonment by an Alabama state court on October 28, 2008.
(Doc. # 2, at 1.) He apparently served his state-court
sentence first and finished serving that sentence on or about
June 17, 2011, at which point he was delivered into federal
custody. (Doc. # 2, at 1.) Mr. Foster expected to receive
credit toward his federal sentence for the time he served on
his state sentence because he “truly believed that both
this court and the State court” ordered his sentences
“to run in a concurrent time frame.” (Doc. # 2,
according to Mr. Foster, the Federal Bureau of Prisons has
not credited the time he served on his state sentence toward
his federal sentence. His petition suggests that the BOP
initially determined that he began serving his federal
sentence on June 17, 2011 (the day he was delivered into
federal custody) but later conceded that he began serving his
federal sentence on August 20, 2008 (the day that sentence
was imposed) after he successfully appealed the BOP’s
initial determination through the BOP’s Administrative
Remedy Program. Mr. Foster asserts that, despite its
concession, the BOP still has not credited the time he served
on his state sentence toward his federal sentence. That led
him to file a Motion to Clarify Sentence in his criminal case
before this court, Foster v. United States, No.
3:07-CR-150-MHT (M.D. Ala. Aug. 31, 2017) ECF No. 83, which
is now before this court as a petition for a writ of habeas
corpus in this action.
months after this action was opened, Plaintiff filed a motion
to amend his petition to request that this court issue a
recommendation to the BOP for retroactive designation of a
state facility for service of his federal sentence. (Doc. #
5.) He attached to his motion an order issued by the United
States District Court for the Northern District of Florida in
United States v. Anderson, No. 4:12cr59-RH-CAS (N.D.
Fla.). (Doc. # 5, at 2–11.) In that order, the
Anderson court found that a motion for the type of
relief Mr. Foster requests in his motion to amend should be
addressed by the sentencing court in the original criminal
case instead of in a separate habeas action.
Anderson, No. 4:12cr59-RH/CAS, slip op. at 8 (N.D.
Fla. Nov. 29, 2017).
consideration of Mr. Foster’s motion to amend, this
court issued an order requiring him to indicate
“whether he seeks to proceed only on his request for
this court to issue a recommendation to the BOP regarding
retroactive designation of a state facility for service of
the federal sentence imposed by this court, a request which
could proceed before this court in his criminal case.”
(Doc. # 6, at 3.) Mr. Foster filed a response to that order
advising that he “seek[s] for this Court to proceed
only upon [his] request for an issuance of a
recommendation to the Bureau of Prisons for
Retroactive Designation.” (Doc. # 7, at 1.) As the
Anderson court found, a request for such relief is
not proper for review in a 28 U.S.C. § 2241 petition.
Instead, Mr. Foster’s request for such relief should be
presented to the court in Mr. Foster’s criminal case.
short, Mr. Foster has to go back to where he started: The
relief he originally sought in his criminal case can be
granted only in a civil action like this one, but the relief
he now seeks can be granted only in his criminal case.
Accordingly, it is ORDERED as follows:
1. The motion to amend (Doc. # 5) is GRANTED only to the
extent it identifies the relief Mr. Foster now seeks;
2. The original documents containing the motion to amend
(Doc. # 5) and the response Mr. Foster filed on January 18,
2018 (Doc. # 7) will be filed in United States v.
Foster, No. 3:07-CR-150-MHT (M.D. Ala.), and identified
in that case as a request for issuance of a recommendation to
the BOP for retroactive designation of a state facility for
service of his federal sentence;
3. The instant 28 U.S.C. § 2241 petition for habeas
corpus relief (Doc. # 2) is DENIED because Mr. Foster no
longer seeks relief appropriate in such a petition; and
4. This case is DISMISSED with prejudice.
A final judgment will be entered ...