Opinion
1:23CV337
10-23-2023
MARTRES DE'JOHN BECOAT, Petitioner, v. K. HECKARD, Respondent.
ORDER AND RECOMMENDATION
Joi Elizabeth Peake, United States Magistrate Judge
Petitioner, a federal prisoner, submitted an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 in which he challenges the calculation of his sentence by the United States Bureau of Prisons. Where a petitioner attacks the execution and not the imposition of a sentence, his petition invokes § 2241. See Setser v. United States, 566 U.S. 231, 244 (2012); see also United States v. Wilson, 503 U.S. 329, 334-35 (1992) (“After a district court sentences a federal offender, the Attorney General, through the BOP, has the responsibility for administering the sentence. . . . Federal regulations have afforded prisoners administrative review of the computation of their credits . . . and prisoners have been able to seek judicial review of these computations after exhausting their administrative remedies.”); United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989); United States v. Harbison, 148 Fed.Appx. 187 (4th Cir. 2005); U.S, v. Burcham, 91 Fed.Appx. 820, 823 n.2 (4th Cir. 2004).
However, Petitioner failed to submit the filing fee or an application to proceed in forma pauperis and also failed to sign his Petition. Therefore, the present Petition will be dismissed without prejudice to re-filing with a proper signature and application to proceed in forma pauperis.
Further, in a § 2241 action challenging the execution of the sentence of a petitioner in physical custody within the United States, the petition should be filed in the district court of the district where the petitioner is in custody. See Kanai v. McHugh, 638 F.3d 251, 255 (4th Cir. 2011) (citing Rumsfeld v. Padilla, 542 U.S. 426, 446-47 (2004)). Petitioner is incarcerated in the Southern District of West Virginia. Accordingly, Petitioner should seek the proper forms from the Clerk of that district and file any § 2241 petition there after exhausting his administrative remedies. The address for the Clerk is: 110 Heber St, Room 119, Beckley WV 25801.
In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation of dismissal without prejudice to filing a signed petition with an application to proceed in forma pauperis.
IT IS THEREFORE ORDERED that In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.
IT IS RECOMMENDED that this action be dismissed sua sponte without prejudice to Petitioner filing a proper petition correcting the defects noted above.