Opinion
Case No.: 00-74834
June 18, 2001
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Salvador Santos-Montero, a federal prisoner currently confined at the Federal Correctional Institution in Milan, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is currently serving consecutive six-month and twenty-four-month sentences for two counts of eluding examination and inspection by an immigration officer in violation of 8 U.S.C. § 1325(a). Petitioner's sentences were imposed on April 29, 1999, by the United States District Court for the District of Oregon. Petitioner is currently scheduled for good conduct time release on November 8, 2001.
Petitioner filed the pending application for a writ of habeas corpus in the United States District Court for the District of Oregon on October 12, 2000. On October 18, 2000, the District Court for the District of Oregon issued an order transferring the petition to this Court. Santos-Montero v. U.S. Dist. Ct. Dist. of Oregon, No. 00-1390 (D. Or. Oct. 18, 2000).
Petitioner argues that he is incarcerated in violation of his constitutional rights because the Bureau of Prisons has failed to give him credit for time served between February 5, 1999 and August 12, 1999. On July 10, 2000, Petitioner filed an "Inmate Request to Staff Member" requesting an explanation as to why time spent in custody from February 5, 1999 to August 12, 1999 was not credited toward his federal sentence. On August 14, 2000, a Bureau of Prisons Staff Member responded that the time in custody from February 5, 1999 to August 12, 1999 was credited toward Petitioner's state sentence. On February 5, 1999, Petitioner was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum from a Washington state prison where he was serving a state sentence. After imposition of his federal sentence, Petitioner was returned to state custody. Petitioner remained in state custody until conclusion of his state sentence on August 12, 1999, whereupon he was returned to federal custody.
A federal habeas corpus petitioner must exhaust administrative remedies before seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. Little v. Hopkins, 638 F.2d 953, 954 (6th Cir. 1981). Petitioner bears the burden of establishing exhaustion. Prather v. Rees, 822 F.2d 1418, 1420 n. 3 (6th Cir. 1987). In the instant case, Petitioner has failed to establish exhaustion of his administrative remedies. Petitioner contends that he exhausted his administrative remedies by contacting his former attorney for assistance and by filing an Inmate Request to Staff Member. Based upon the record before the Court, Petitioner has not pursued any other administrative remedies with respect to his claim.
An administrative remedy is available for Petitioner to challenge the computation of his sentence under 28 C.F.R. § 542.10-542.16. See Alton v. Bogan, No. 94-2354, 1995 WL 364184 (6th Cir. June 16, 1995). A prisoner may submit a complaint to institutional staff. If the problem is not resolved, 28 C.F.R. § 542.13(a) (b) allow a prisoner to file a formal request for administrative remedy with the warden of the prison. Thereafter, a prisoner may file an appeal to the Regional Director and General Counsel in the central office. 28 C.F.R. § 542.14. Petitioner has failed to sustain his burden of demonstrating exhaustion.
Furthermore, Petitioner's contention is without merit. 18 U.S.C. § 3585 provides that a defendant shall be given credit for any time he has spent in official detention "that has not been credited against another sentence." Petitioner's custody from February 5, 1999 to August 12, 1999 was credited against his state sentence. Therefore, Petitioner is not entitled to credit for such time on his federal sentence.
For the reasons stated above,
IT IS ORDERED that Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is DISMISSED.