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United States v. Barber

United States District Court, S.D. Alabama, Northern Division

June 14, 2019

UNITED STATES OF AMERICA
v.
GERALD BARBER, Defendant

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court is defendant Gerald Barber's pro se “Motion to Receive Jail Credit.” (Doc. 115).[1] Barber is presently incarcerated at Federal Correctional Institution McDowell, located in Welch, West Virginia. He is serving a prison term of 120 months, followed by an eight-year term of supervised release. (Doc. 83, Judgment).[2]

         In the motion, Barber recounts the history of his custody while his federal charges were pending. He notes that the United States successfully petitioned the Court for a Writ of Habeas Corpus Ad Prosequendum in order to prosecute Barber, who was then detained in Marengo County Jail. (Doc. 3, Petition for Writ of Habeas Corpus). Barber contends that the Bureau of Prisons (“BOP”) has calculated his jail time to begin when he was sentenced, on April 23, 2018. He submits that this calculation was in error. He requests that the Court grant his motion and award him credit for the time served prior to his sentencing hearing.

         Two major impediments inhibit this Court from considering his motion. The first is that this Court is not authorized to compute credit awards towards sentencing. Only the BOP may do so. The second impediment is that because Barber is incarcerated outside this judicial district, this district is not the proper place to challenge the BOP's calculation.

         The relevant statute concerning credit for time served provides:

(b) Credit for prior custody.--A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences--
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.

18 U.S.C. § 3585(b). The Eleventh Circuit has held, when addressing a similar motion brought by an inmate challenging his credit, that:

The Attorney General through the BOP, and not the district courts, is authorized, under 18 U.S.C. § 3585(b), to compute sentence credit awards after sentencing. Dawson v. Scott, 50 F.3d 884, 889 (11th Cir. 1995). The Attorney General delegated his authority in this area to the BOP. United States v. Lucas, 898 F.2d 1554, 1555-56 (11th Cir. 1990). We have held that the granting of credit for time served is in the first instance an administrative, not a judicial, function. United States v. Flanagan, 868 F.2d 1544, 1546 (11th Cir. 1989). The district court, therefore, cannot circumvent the Attorney General's initial discretion concerning whether to credit a defendant's time in custody prior to sentencing. Lucas, 898 F.2d at 1555.

U.S. v. Berrio, 428 Fed. App'x 944 (11th Cir. 2011) (emphasis added). Therefore, Congress vested the authority to calculate credit with the BOP, not this Court.

         Second and finally, this Court is not the appropriate venue to challenge the BOP's calculation, even if Barber had properly exhausted his administrative remedies.[3] As the Eleventh Circuit has held, a claim concerning credit for time served “should be filed as a writ of habeas corpus pursuant to 28 U.S.C. § 2241 . . . .” Id. And a § 2241 petition “may be brought only in the district court of the district in which the inmate is incarcerated.” Fernandez v. United States, 941 F.2d 1488, 1495 (11th Cir. 1991). In this case, Barber is incarcerated in West Virginia, not in a facility located in the Southern District of Alabama. Consequently, this Court lacks jurisdiction to address Barber's motion.

         Based on the foregoing, Barber's “Motion to Receive Jail Credit[, ]” (Doc. 115), is DISMISSED for lack of jurisdiction. The ...


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