* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 3 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
PHAP NGOC NGUYEN,

Petitioner-Appellant,
v. J. W. BOOKER, JR.,

Respondent-Appellee. No. 97-3338 (D.C. No. 97-CV-3382-RDR)

(D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , McKAY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner Phap Ngoc Nguyen, a federal inmate proce eding pro se and in forma pauperis, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. Petitioner was indicted on first state and then fed eral charges in 1993. He has been transferred back and forth between state and f ederal custody several times to stand trial and to serve his sentences. He asse rts that the Bureau of Prisons (BOP) has improperly extended his federal sentence by causing him to serve it piece-meal with state confinement. The district co urt interpreted petitioner’s claim as one seeking credit for time served, and di smissed the petition without prejudice for failure to exhaust administrative rem edies. We have jurisdiction under 28 U.S.C. § 1291. The Attorney General, through the BOP, has long borne the responsibility for calculating presentence confinement credit toward federal offenders’ sentences, first under 18 U.S.C. § 3568 (now repeal ed), and now under 18 U.S.C. § 3585(b). See United States v. Wilson , 503 U.S. 329, 331-35 (1992). For decades, “[f]ederal regulations have afforded priso ners administrative review of the computation of their credits, and prisoners hav e been able to seek judicial review of these computations after exhausting theiradministrative remedies.” Id. at 335 (citations omitted). These are “well-estab lished procedures,” which Congress did not intend to change when it replaced § 3568 with § 3585(b). Id. at 336.-3-

Petitioner admits that he did not exhaust his admin istrative remedies. It was therefore correct for the district court to dismiss his § 2241 petition without prejudice for failure to exhaust. However, the district court should not have based the dismissal on the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). A petition challenging the execution o f a sentence under 28 U.S.C. § 2241 is distinguished from a suit challenging con ditions of confinement. See McIntosh v. United States Parole Comm’n , 115 F.3d 809, 811-12 (10th Cir. 1997). Petitioner’s § 2241 petition does not fall within PLRA’s language barring suits challenging prison conditions before administrative remedies have been exhausted. See 42 U.S.C. § 1997e(a). The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court
Monroe G. McKay Circuit Judge