UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN GRANT, :

CIVIL ACTION NO. 3:22-0962

Petitioner :

(JUDGE MANNION)

v. :

WARDEN THOMPSON, :

Respondent :

MEMORANDUM

Petitioner, Brian Grant, an inmate confined in the Allenwood Low 

Security Correctional Institution, White Deer, Pennsylvania, filed the above 

captioned petition for writ of habeas corpus, pursuant to 28 U.S.C. §2241,

challenging the calculation of his release date set by the Federal Bureau of 

Prisons (“BOP”). (Doc. 1). Petitioner believes that “the BOP violated the 

terms of the sentence imposed by U.S. District Judge Cynthia M. Rufe, on 

May 2, 2011, in the United States v. Grant, Criminal No. 09CR000457 

judgment (E.D. Pa. May 2, 2011) by failing to run Grant’s 210-month term 

fully concurrent with: 

120-month (non-relevant conduct) sentence imposed by the 

state of Pennsylvania on March 31, 2008, in Pennsylvania v. 

Grant, Case no. CP-51-CR-0512561-2006 judgment vacated 

and expunged on November 20, 2015, and;

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A 60-month (relevant conduct) sentence imposed by the state of 

Pennsylvania on September 3, 2008, in Pennsylvania v. Grant, 

Case no. CP-46-CR-0005652-2007 judgment. 

(Doc. 1, p. 1). Thus, he “argues that Judge Rufe ordered his federal sentence 

to run fully concurrently with both his Pennsylvania Sentences pursuant to 

Sentencing Guideline 5G1.3(b) and (c), but the BOP failed to comply with 

Judge Rufe’s sentence by refusing to give him credit for all the time he 

served on his relevant conduct Pennsylvania sentence prior to imposition of 

the federal sentence.” Id. For relief, he seeks credit for 968 days “served in 

his ’undischarged relevant conduct’ state offense, bringing his state and 

federal sentences fully concurrent. This Court issued a Memorandum and 

Order dismissing all claims for sentence credit except for Petitioner’s request 

for a sentence adjustment under U.S.S.G. §5G1.3(b); ordering Respondent 

to address that claim in a supplemental response. (Docs. 14-15). Both 

parties have filed supplemental responses, and the remaining claim of a 

sentence adjustment is ripe for disposition.

For the reasons that follow, the Court will deny the remaining claim of 

petitioner’s habeas corpus for lack of jurisdiction. 

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I. Background

The relevant procedural and factual background is set forth in greater 

detail in the Court’s previous Memorandum issued on January 9, 2024 (Doc. 

14), and is fully incorporated herein by reference. Respondent has filed a

Supplemental Response addressing Petitioner’s remaining claim on 

February 22, 2024. (Doc. 19). Petitioner has filed a response thereto on 

March 7, 2024. (Doc. 20). 

II. Discussion

As previewed in this Court’s previous Memorandum, Petitioner’s final

argument is that he is entitled to a §5G1.3(b) adjustment to his federal 

sentence. (Doc. 1, p. 9). He argues that “based on the (November 20, 2015) 

vacatur of his non-relevant conduct state offense, [his] Sentencing Guideline 

application changes from U.S.S.G. 5G1.3(c) to U.S.S.G. 5G1.3(b), thus the 

only remaining undischarged state case is the ‘relevant conduct’ case which 

[Petitioner] was sentenced to 2-5 years on September 3, 2008.” Id. Petitioner 

concludes that “for time already spent in custody for solely relevant conduct, 

the sentence shall be adjusted downward” and that the application of §5G1.3 

“to an undischarged state sentence lies totally within the discretion of the 

district court.” Id. Petitioner claims that he raised this argument before the 

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sentencing court, who, on May 27, 2022, issued an order1 finding that “if 

applicable as a matter of law, ‘section 5G1.3(b) is mandatory,’ and under 

§2241 the ‘reviewing court (or the BOP) can definitively determine the 

amount of an adjustment awarded under section 5G1.3(b).” Id. In response, 

Respondent asserts that Grant’s claim to change the Sentencing Guideline 

application in his case from a §5G1.3(c) to §5G1.3(b) conflates a sentencing 

court’s ability to make a Sentencing Guidelines adjustment with the BOP’s 

authority to credit his sentence under 18 U.S.C. §3585(b). The Court agrees. 

As explained in the Court’s previous Memorandum, the “authority to 

calculate a federal sentence and provide credit for time served ... [belongs] 

to the Attorney General, who acts through the BOP.” Goodman v. 

1 The Eastern District’s May 27, 2022 Order, acting on Petitioner’s 

motion for reconsideration of their May 10, 2022 Order denying Petitioner’s 

“Nunc Pro Tunc Petition” and pro se “Motion for Reduction in Sentence under 

18 U.S.C. §3582,” found that “in his motion [for reconsideration], Grant 

argues that although his sentence was correct at the time of sentencing, the 

post-sentencing vacatur of his prior unrelated state sentence entitles him to 

a downward adjustment under §5G1.3(b) of the Sentencing Guidelines for 

pretrial detention that is now credited to a related state sentence.” See United 

States v. Grant, Criminal No. 09-0457 (E.D. Pa. Docket Sheet at Doc. 85). 

The Court found the relief sought by Petitioner to be properly brought under 

28 U.S.C. §2241, not §2255. Id. 

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Grondolsky, 427 F. App’x. 81, 82 (3d Cir. 2011) (per curiam) (citing United 

States v. Wilson, 503 U.S. 329, 333–35 (1992)). “In calculating a federal 

sentence, the BOP first determines when the sentence commenced and then 

determines whether the prisoner is entitled to any credits toward his 

sentence.” Id. (citing 18 U.S.C. §3585). “This is where the Bureau of Prisons 

comes in—which ultimately has to determine how long the District Court’s 

sentence authorizes it to continue [a prisoner’s] confinement. [A prisoner] is 

free to urge the Bureau to credit his time served in state court based on the 

District Court’s judgment ... [i]f the Bureau initially declines to do so, he may 

raise his claim through the Bureau’s Administrative Remedy Program. And if 

that does not work, he may seek a writ of habeas corpus [under 28 U.S.C 

§2241].” Setser v. United States, 566 U.S. 231, 244 (2012) (internal citations 

omitted). 

On the other hand, §5G1.3 advises a sentencing court (not the BOP) 

how to treat undischarged terms of imprisonments when ordering a federal 

sentence. See Peugh v. United States, 569 U.S. 530, 536 (2013). A claim 

relating to the application of §5G1.3 as a downward adjustment goes to the 

issue of sentencing and is not properly raised in a petition for a writ of habeas 

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corpus under 28 U.S.C. §2241. The Third Circuit case of Savage v. 

Zickefoose is instructive on the issue: 

To the extent that [a Petitioner] alleged that the sentencing court 

should have provided for concurrent federal and state sentences 

under U.S.S.G. §§5G1.3(b) and 5G1.3(c), the District Court 

properly dismissed his claims [under 28 U.S.C. §2241] for lack of 

jurisdiction. A motion filed under 28 U.S.C. §2255 in the 

sentencing court is the presumptive means for a federal prisoner 

to challenge the validity of a conviction or sentence. See Okereke 

v. United States, 307 F.3d 117, 120 (3d Cir. 2002). A petitioner 

can seek relief under §2241 only if the remedy provided by §2255 

is inadequate or ineffective to test the legality of his detention. In 

re Dorsainvil, 119 F.3d 245, 249–51 (3d Cir. 1997). A §2255 

motion is not “inadequate or ineffective” merely because the 

petitioner cannot meet the stringent gatekeeping requirements of 

§2255, Okereke, 307 F.3d at 120, or because the sentencing 

court does not grant relief, Cradle v. United States ex rel. Miner, 

290 F.3d 536, 539 (3d Cir. 2002) (per curiam). Rather, the “safety 

valve” provided under §2255 is extremely narrow and has been 

held to apply in unusual situations, such as those in which a 

prisoner has had no prior opportunity to challenge his conviction 

for a crime later deemed to be non-criminal by an intervening 

change in law. Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 

119 F.3d at 251).

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446 F. App’x 524, 525-526 (3d Cir. 2011).

Here, Grant argues that the vacatur of his prior unrelated State 

sentence “entitles him to a downward adjustment under Section U.S.S.G. 

5G1.3(b) for pretrial detention that is now credited to a related State 

sentence.” (Doc. 20, p. 2). As explained, this request––whether Grant is 

entitled to it or not––goes to the validity of his sentencing and relief may be 

sought under §2241 only if the remedy provided by §2255 is inadequate or 

ineffective. Grant has not made that showing. Furthermore, Grant’s bare 

assertion that he considers his original sentence to be correctly calculated

by the sentencing court does little to change the essence of his request.

As to the Eastern District’s order, finding that “if applicable as a matter 

of law, ‘section 5G1.3(b) is mandatory,’ and under §2241 the ‘reviewing court 

(or the BOP) can definitively determine the amount of an adjustment 

awarded under section 5G1.3(b),” this Court agrees. If Grant was successful 

in seeking a §2241 petition to review this claim because the remedy provided 

by §2255 was inadequate or ineffective, this Court would have jurisdiction 

over the claim. Also true, a reviewing court and the BOP are capable of 

“definitively determining the amount of an adjustment awarded under section 

5G1.3(b)” as was noted by the Third Circuit in Mehta v. Wigen, 597 F. App’x 

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676, 680 (3d Cir. 2015). However, applying a downward adjustment under 

§5G1.3 (as opposed to determining the amount) remains in the purview of 

the sentencing court. Mehta is clear on this point:

U.S.S.G. §5G1.3(b). In applying this provision, a sentencing 

court first calculates the relevant Guidelines range for the instant 

offense. See U.S.S.G. §5G1.3 cmt. n. 2D. The court then 

determines what total prison term would be appropriate. See id.

Finally, the court subtracts from that term the amount of time that 

the defendant has already served on his other, undischarged 

term to arrive at the actual sentence for the instant offense. See 

id. That sentence is then run concurrent with the undischarged 

term. See id.

597 F.App’x at 679-80. Mehta underscores the clear distinction 

between a sentencing court’s ability to apply the provisions of the Sentencing 

Guidelines versus the BOP’s authority under 18 U.S.C. §3585(b) to 

determine whether an inmate is entitled to sentence credits. Id. Accordingly, 

the remaining claim in Petitioner’s §2241 petition is not properly raised in 

such a petition and dismissed for lack of jurisdiction. 

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 III. Conclusion

For the reasons stated above, the remaining claim of the petition for a 

writ of habeas corpus will be DENIED without PREJUDICE for lack of 

jurisdiction. 

A separate Order will be issued.

s/ Malachy E. Mannion 

MALACHY E. MANNION

United States District Judge

DATED: January 2, 2025

22-0962-03

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