UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

EL PASO DIVISION 3 -6 f4 10: 36 

RUBEN VEGA, § 

Reg. No. 09643-073, § 

Petitioner, § 

§ 

v. § 

§ 

THOMAS E. BERGAMI, Warden, § 

Respondent. § 

T 

EP-20-CV-127-DCG 

MEMORANDUM OPINION AND ORDER 

Ruben Vega seeks Court intervention on his behalf in a pro se "Omnibus Motion." 

Pet'r's Pet., ECF No. 1. He asks the Court to grant him pre-sentencing credit for time served in 

state custody, recommend that he serve the maximum amount of time in a residential re-entry 

center, and order his placement in home confinement due to the COVID- 19 pandemic. Id. at 1. 

His motion, which the Court construes as a petition for a writ of habeas corpus under 28 U.S.C. § 

2241, is dismissed for the reasons discussed below. See Hussain v. Bos. Old Colony Ins. Co., 

311 F.3d 623, 633 n. 39 (5th Cir. 2002) ("[A]s in other areas of pleading, we construe the 

pleading liberally according to its substance rather than its form or label.") 

BACKGROUND 

Vega is a 40-year-old prisoner at the La Tuna Federal Correctional Institution (FCI La 

Tuna) in Anthony, Texas.' https://www.bop.gov/inmateloc/ (search for Reg. No. 09643-073) 

(last visited July 1, 2020). His projected release date is January 3, 2022. Id. 

Vega was arrested by local authorities in South Dakota for a state parole violation on 

September 3,2003. Pet'r's Pet. 17 (Regional Administrative Remedy Appeal), ECF No. 1. 

Anthony is located in El Paso County, Texas, which is within the Western District of Texas. 28 U.S.C. § 

I 24(d)(3). 

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His parole was revoked and he served time in state custody until his release, once again to 

parole, on April 23, 2004. Id. 

Meanwhile, on October 31, 2003, he pled guilty to conspiracy to possess with intent to 

distribute more than 500 grams of methamphetamine in the United States District Court for the 

District of South Dakota. United States v. Vega, 4:03-CR-40081-LLP-1 (D. S. D.). "This was 

not Vega's first drug offense. He had two prior state-court felony convictions for the 

'[u]nauthorized manufacture, distribution, counterfeiting or possession of [a] schedule I or II 

substance,' in violation of South Dakota Criminal Law § 22-42-2." Vega v. Niklin, No. EP-18- 

CV-96-DCG, 2018 WL 1750746, at *1 (W.D. Tex. Apr. 10, 2018) (quoting Vega's petition in 

EP-18-CV-96-DCG). As a result, he was sentenced as a career offender to 262 months' 

imprisonment on January 26, 2004. Id. at *2. 

Vega applied to the Bureau of Prisons (BOP) for pre-sentencing credit toward his federal 

sentence. Pet'r's Pet. 11 (Resp. from Correctional Program Specialist), ECF No. 1. He was 

granted credit for time served from his sentencing on January 26, 2004, until his release on 

parole by state authorities on April 23, 2004, after the BOP Designation and Sentence 

Computation Center (DSCC) contacted the sentencing court and determined "a concurrent 

designation was appropriate." Id. 

Vega now asks the Court to order Thomas E. Bergami, the Warden at FCI La Tuna, to 

give him credit toward his federal sentence, pursuant to 18 U.S.C. § 3585, for the time he served 

in state custody after his arrest on September 3, 2003, until his sentencing by the federal court on 

January 26, 2004. Id. at 4. He further asks the Court to recommend his placement in a prerelease residential reentry center for the maximum amount of time possibletwelve months- 

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under 18 U.S.C. § 3624. Id. at 7-8. Notably, Vega does not claim Bergami denied him 

placement or ordered his residence in such a facility for less than twelve months. He finally 

asks, in the alternative, for the Court to order his placement in home confinement due to the 

COVID-19 pandemic, pursuant to 18 U.S.C. § 3582(c)(1)(A). Id. at 9. 

Vega failed to pay the $5.00 filing fee for a § 2241 petition. However, he was 

represented by a Federal Public Defender in his criminal case. He presumably has limited 

financial resources. He will accordingly be permitted to proceed without prepaying costs or fees 

in this matter. 

APPLICABLE LAW 

A petitioner may attack the manner in which his sentence is being executed in the district 

court with jurisdiction over his custodian pursuant to a petition for a writ of habeas corpus under 

28 U.S.C. § 2241. Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001); 

Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); United States v. Cleto, 956 F.2d 83, 84 (5th 

Cir. 1992). However, "[h]abeas corpus relief is extraordinary and 'is reserved for transgressions 

of constitutional rights and for a narrow range of injuries that. . . if condoned, result in a 

complete miscarriage ofjustice." Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting 

United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). As a result, a petitioner is entitled 

to § 2241 relief only to remedy a restraint of liberty in violation of the constitution, treaties, or 

laws of the United States. UnitedStates v. Hayman, 342 U.S. 205, 211-12 & n.1 1 (1952). To 

prevail, a habeas corpus petitioner must show that he is "in custody in violation of the 

Constitution or laws or treaties of the United States." 28 U.S.C. § 224 1(c). 

During its initial screening of a § 2241 petition, a reviewing court accepts a petitioner's 

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allegations as true. 28 U.S.C. § 2243; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 

(2007). It also evaluates a petition presented by pro se petitioner under more a lenient standard 

than it applies to a petition submitted by counsel. Erickson v. Pardus, 551 U.S. 89, 94 (2007). 

But it must still find "more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action." Twombly, 550 U.S. at 556. It must "award the writ or issue an 

order directing the respondent to show cause why the writ should not be granted, unless it plainly 

appears from the petition and any attached exhibits that the petitioner is not entitled to relief" 

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 

2241 petitions pursuant to Rule 1(b)). 

ANALYSIS 

A. Exhaustion 

An initial issue which a court must address when screening a § 2241 petition is whether 

the petitioner has exhausted his administrative remedies. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 

1994) (per curiam). A petitioner seeking habeas relief must first exhaust all administrative 

remedies which might provide appropriate relief before seeking judicial review. Id.; Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993). Exhaustion means "proper exhaustion," including 

compliance with all administrative deadlines and procedures. Cf Woodford v. Ngo, 548 U.S 81, 

90 (2006) (discussing exhaustion under the Prison Litigation Reform Act). 

The BOP uses a multi-tiered administrative remedy program "to allow an inmate to seek 

formal review of an issue relating to any aspect of his/her own confinement." 28 C.F.R. § 

542.10(a). First, the inmate must attempt to resolve the issue informally with the prison staff 

Id. § 542.13(a). Then, if the inmate cannot resolve the complaint informally, he must file a 

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formal written administrative remedy request on a BP-9 form directed to the prison warden. Id. 

§ 542.14. Any adverse decision by the warden must be appealed to the appropriate regional 

director by filing a BP- 10 form. Id. § 542.15(a). The final step in the administrative review 

process is an appeal to the Office of General Counsel on a BP- 11 form. Id. If an inmate does 

not receive a response within the time allotted, he may consider the absence of a response a 

denial at that level and proceed to the next level. Id. An inmate may seek relief in federal 

court only after he has exhausted all levels of the administrative review process. See Lundy v. Osborn, 555 F.2d 534, 535 (5th Cir. 1977) ("Only after such remedies are exhausted will the 

court entertain the application for relief in an appropriate case."). 

"Exceptions to the exhaustion requirement are appropriate where the available 

administrative remedies either are unavailable or wholly inappropriate to the relief sought, or 

where the attempt to exhaust such remedies would itself be a patently futile course of action." 

Fuller, 11 F.3d at 62 (internal citations omitted). Exceptions may be made only in 

"extraordinary circumstances," and the petitioner bears the burden of demonstrating the futility 

of administrative review. Id. 

Vega had the BOP administrative review process, as described above, available to 

address his claims. He provided evidence that he appealed the decision concerning his presentencing credit to the regional director. Pet'r's Pet. 17 (Regional Administrative Remedy 

Appeal), ECF No. 1. He offered evidence that he asked the DSCC to reconsider its calculation 

of his sentence. Id. at 11 (Resp. from Correctional Program Specialist). He delivered evidence 

that he requested but was denied home confinement at the unit level. Inmate Request to Staff 2, 

ECF No. 2. Notably absent from his documentation was any evidence that he pursued his claim 

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to the Office of General Counsel. Vega conceded he had not exhausted his claims. Id. at 7-8. 

He argued his "failure to exhaust administrative remedies should be excused due to futility. Id. 

at 7. He also suggested the BOP would not timely respond to his claims. Id. 

If Vega had meritorious claims, there is nothing to suggest that the BOP would not have 

afforded him relief through its administrative review process. And if the BOP made an error 

concerning his requests for time credit, residential reentry center placement or home 

confinement, he should give the BOP the opportunity to correct those errors before seeking 

judicial intervention. See Vega v. Thompson, 937 F.2d 217, 219 (5th Cir. 1991) (suggesting an 

agency should be given opportunity to correct its own error before an aggrieved party seeks 

judicial intervention). Indeed, an attempt by Vega to exhaust through the BOP administrative 

review process would clearly not be a patently futile course of action. See Overshown v. Upton, 466 F. App'x 361 (5th Cir. 2012) (citing United States v. Dowling, 962 F.2d 390, 393 

(5th Cir. 1992) ("If a prisoner feels he has been improperly refused credit for time he has served 

in state custody, the prisoner must first exhaust his administrative remedies with the BOP before 

pursuing judicial review of the BOP's computations."); Garza v. Davis, 596 F.3d 1198, 1204 

(10th Cir. 2010) ("BOP memoranda issued on April 14, 2008 and November 14, 2008 

demonstrate [the] BOP recognizes its authority to place inmates in RRCs . . . for periods of time 

exceeding six months and do not reflect any policy of categorical denial.") (quotations and 

citations omitted). While "[i]t is true that exhaustion. . . takes time, . . . there is no reason to 

assume that . . . prison administrators . . . will not act expeditiously." Preiser v. Rodriguez, 411 

U.s. 475, 494-95 (1973). 

Hence, the Court finds Vega has not exhaustedand dismissal of his claims is warranted 

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on that basis alone. See Rivkin v. Tamez, 351 F. App'x 876, 877-78 (5th Cir. 2009) (per 

curiam) (affirming dismissal of prisoner's § 2241 petition for failure to exhaust administrative 

remedies). But even if Vega had properly exhausted, the Court would still not grant him § 2241 

relief. 

B. 18 U.S.C. § 3585 

Vega asks the Court to "order. . . additional credit" for the time he served in state 

custody before his federal sentencing. Pet'r's Pet. 4, ECF No. 1. 

"There is no statutory authority for a district court to award credit against federal 

sentence for time spent in state custody." United States v. Barrera-Saucedo, 385 F.3d 533, 536 

(5th Cir. 2004). "After a district court sentences a federal offender, the Attorney General, 

through the BOP, has the responsibility for administering the sentence." See United States v. Wilson, 503 U.S. 329, 335 (1992) (citing 18 U.S.C. § 3621(a) ("A person who has been 

sentenced to a term of imprisonment. . . shall be committed to the custody of the Bureau of 

Prisons until the expiration of the term imposed")); see also 28 C.F.R. § 0.96 ("The Director of 

the Bureau of Prisons is authorized to exercise or perform any of the authority, functions, or 

duties conferred or imposed upon the Attorney General by any law relating to the commitment, 

control, or treatment of persons (including insane prisoners and juvenile delinquents) charged 

with or convicted of offenses against the United States."). Thus, the Bureau of Prisonsnot the 

judiciaryis responsible for implementing the statutes concerning the computation of a federal 

sentence. 

According to 18 U.S.C. § 3585(a), federal sentence does not commence until the BOP 

receives the defendant into its custody to serve the sentence: 

(a) Commencement of sentence. -- A sentence to a term of imprisonment 

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commences on the date the defendant is received in custody awaiting 

transportation to, or arrives voluntarily to commence service of sentence at, 

the official detention facility at which the sentence is to be served. 

The BOP may grant credit, according to 18 U.S.C. § 3585(b), against a federal sentence for time 

spent in pretrial custody if the time is not credited against another sentence: 

(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. 

When Congress enacted § 3585(b), it "made clear that a defendant could not receive a double 

credit for his detention time." Wilson, 503 U.S. at 337. Even "[t]ime spent by a prisoner in 

federal custody for the purpose of appearing in federal court via a writ of habeas corpus ad 

prosequendum is not counted towards the federal sentence if that time was credited toward [a] 

state sentence." Lopez v. Jeter, 170 F. App'x 894, 895 (5th Cir. 2006) (citing United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985)). 

Vega erroneously maintains he should receive credit toward his federal sentence from the 

time of his arrest for the probation violation on September 3, 2003, until the time of his federal 

sentencing on January 26, 2004. Pet'r's Pet. 4, ECF No. 1. He is mistaken in his belief as the 

time he wants credited toward his federal sentence was previously credited against the state 

sentence imposed upon him after the State of South Dakota revoked his parole. Id. at 17 

(Regional Administrative Remedy Appeal). "There is neither statutory nor jurisprudential 

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authority for the granting of federal prison credit for time served in state custody on an unrelated 

charge prior to a federal charge or federal detainer." United States v. Garcia-Gutierrez, 835 

F.2d 585, 586 (5th Cir. 1988). This includes credit for the time spent "in federal custody 

pursuant to a writ of habeas corpus prosequendum." Trejo v. Warden, 238 F. App'x 12, 13 (5th 

Cir. 2007). 

Vega is not entitled to additional credit toward his federal sentence. Hence, he is not 

entitled to § 2241 relief on his claim. 

C. 18 U.S.C. § 3624 

Vega also asks the Court to recommend his release to a residential re-entry center "as 

soon as practicable." Pet'r's Pet. 5, ECF No. 1. 

The Court observes that two statutes govern the discretion of the BOP to place an inmate 

in a particular facility: 18 U.S.C. § 3621(b), which addresses the imprisonment of a convicted 

person, and the Second chance Act, which provides for post-imprisonment rehabilitation 

services. 

Section 362 1(b) grants the BOP the authority and discretion to designate the place of 

confinement. Under § 362 1(b), the BOP: 

may designate any available penal or correctional facility that meets minimum 

standards of health and habitability established by the Bureau, whether maintained 

by the Federal Government or otherwise and whether within or without the judicial 

district in which the person was convicted, that the Bureau determines to be 

appropriate and suitable. 

18 U.S.C. § 3621(b). In making this determination, the BOP must consider "(1) the resources of 

the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and 

characteristics of the prisoner; (4) any statement by the court that imposed the sentence . . . and 

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(5) any pertinent policy statement issued by the Sentencing Commission[.]" Id. 

The Second Chance Act directs "a shift from policing those on parole to rehabilitating 

them," and places on the "parole system. . . an increasing special obligation to help federal 

offenders successfully reenter into society." United States v. Wessels, 539 F.3d 913, 915 (8th 

Cir. 2008) (Bright, J., concurring). It authorizes funding for drug treatment, job training and 

placement, educational services, and other services or support needed to rehabilitate prisoners 

and reduce recidivism. Id. The Act also addresses placement in a community corrections 

facility such as a halfway house. 18 U.S.C. § 3624(c). It grants the BOP Director the 

discretion to place a prisoner in a community corrections facility for up to twelve months, instead 

of limiting that time to six months as permitted by the prior law. Id. It authorizes the Director, 

"to the extent practicable, . . . to place a prisoner in home confinement for the shorter of 10 

percent of the term of imprisonment of that prisoner or 6 months." Id. It further directs the 

BOP to issue regulations to ensure that placements in community correctional facilities are "(A) 

conducted in a maimer consistent with section 362 1(b) of this title; (B) determined on an 

individual basis; and (C) of sufficient duration to provide the greatest likelihood of successful 

reintegration into the community." Id. § 3624(c)(6). 

The BOP adopted regulations implementing the Second Chance Act, codified at 28 

C.F.R. §S 570.20.22, effective October 21, 2008. Both the statute and the regulations instruct 

the BOP to determine the amount of time a prisoner should spend in residential reentry center 

"on an individual basis." Id.; 28 C.F.R. § 570.22. 

The Supreme Court has consistently held that a prisoner has no constitutional right to be 

confined in any particular placeincluding a halfway house or home confinement. See 

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McKune v. Lile, 536 U.S. 24, 39 (2002) ("It is well settled that the decision where to house 

inmates is at the core of prison administrators' expertise."); Sandin v. Conner, 515 U.S. 472, 478 

(1995) ("the Due Process Clause did not itself create a liberty interest in prisoners to be free from 

intrastate prison transfers."); Meachum v. Fano, 427 U.S. 215, 224 (1976) ("The conviction has 

sufficiently extinguished the defendant's liberty interest to empower the State to confine him in 

any of its prisons."). 

The Attorney Generaland by delegation the BOPhas exclusive authority and 

discretion to designate the place of an inmate's confinement. Moore v. United States Au y Gen., 

473 F.2d 1375, 1376 (5th Cir. 1973); Ledesma v. United States, 445 F.2d 1323, 1324 (5th Cir. 

1971). "[Amy approach that puts the judicial branch in charge of designating the place of 

confinement for a federal prisonerno matter how well justified on utilitarian groundscollides 

with 18 U.S.C. § 4082(b), which gives the Attorney General unfettered discretion to decide 

where to house federal prisoners." In re Gee, 815 F.2d 41, 42 (7th Cir. 1987).2 

Moreover, a petitioner complaining about a BOP assignment is not entitled to judicial 

relief for an alleged "violation of his Fifth Amendment right to due process because 'the failure 

to receive relief that is purely discretionary in nature does not amount to a deprivation of a 

liberty interest." Assaadv. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (quoting Mejia 

Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999) (citing Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981))); accord NativiGomez v. Ashcroft, 344 F.3d 805, 808 (8th 

Cir. 2003); see also Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) ("Since discretionary 

relief is a privilege . . ., denial of such relief cannot violate a substantive interest protected by the 

2 The statutory language in 18 U.S.C. § 4082(b) was re-codified through Pub. L. 94-473, Title 2 II, § 212(a)(2), Oct. 

12, 1984, and is currently found at 18 U.S.C. § 3621(b). 

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Due Process clause."); cf Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) ("[A] 

statute which 'provides no more than a mere hope that the benefit will be obtained. . . is not 

protected by due process.") (alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal 

& Corr. Complex, 442 U.S. 1, 11(1979)). 

Thus, after reviewing Vega's petition and the applicable statutes, the Court finds the BOP 

has exclusive authority and discretion to determine if and when to assign Vega to a residential 

reentry center. The Court further finds that Vega provided no evidence that Bergami acted 

"arbitrarily, capriciously, and in a discriminatory manner," violated the Second Chance Act or 

discriminated against Vega with regard to his placement. 

Furthermore, if and when a prisoner should serve the remainder of a sentence in a 

residential reentry center or home confinement is best left to the discretion, experience, and 

expertise of the BOP. See McKune v. Lile, 536 U.S. 24, 39 (2002) ("It is well settled that the 

decision where to house inmates is at the core of prison administrators' expertise."). "[A]ny 

approach that puts the judicial branch in charge of designating the place of confinement for a 

federal prisonerno matter how well justified on humanitarian groundscollides with 18 

U.S.C. § 4082(b), which gives the Attorney General unfettered discretion to decide where to 

house federal prisoners." In re Gee, 815 F.2d 41, 42 (7th Cir. 1987). 

As a result, the Court will not recommend Vega's placement in a pre-release residential 

reentry center for the maximum amount of time possible or his placement in home confinement. 

0. 18 U.S.C. § 3582 

Finally, Vega asks the Court to grant him "compassionate release" under 18 U.S.C. § 

3582 due to the threat to his health caused by the COVID-19 pandemic. Pet'r's Pet. 1, ECF No. 

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1; Pet'r's Letter 1, ECF No. 2. 

Section 3582 permits the sentencing court to reduce or modify a sentence only in the 

"limited number of circumstances." United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 

1997). These circumstances include when a court finds "extraordinary and compelling reasons 

warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A). A court may grant a motion to modify a 

sentence, however, only where "such a reduction is consistent with applicable policy statements 

issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). Sentencing Guideline § 

1 B 1.13 provides "the court may reduce a term of imprisonment" if it determines that (1) 

"extraordinary and compelling reasons warrant the reduction," (2) "the defendant is not a danger 

to the safety of any other person," and (3) "the reduction is consistent with this policy 

statement." U.S. SENTENCING GUIDELINES MANUAL § lB 1.13 (U.S. SENTENCING C0MM'N 

2019). 

Vega does not contend that the BOP, or anyone else, misconstrued his sentence, wrongly 

extended his sentence, or otherwise erred in the enforcement or execution of his sentence. 

Instead, he asks the Court to modify his sentence and order his compassionate release due to the 

COVID-19 pandemic. "A compassionate release request is not a matter of illegal or 

unconstitutional restraint." Figueroa v. Chapman, 347 F. App'x 48, 50 (5th Cir. 2009). 

Consequently, a petition under § 2241 is not the proper means by which Vega may obtain the 

relief he seeks. 

"Such a request is most appropriately brought as a motion under 18 U.S.C. § 3582." 

Ono v. Pontesso, 162 F.3d 1169 (9th Cir. 1998). If Vega wishes to pursue a compassionate 

release, he may do so by filing a § 3582 motion to modify his sentence in the district where he 

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was sentencedthe District of South Dakota. 18 U.S.C. § 3582(c); Anderson v. United States, 

No. CIV. A. 1:07-CV-942, 2008 WL 1836673, at *2 (E.D. Tex. Apr.23, 2008). This Court 

does not have the authority to grant Vega the relief he requests. 

CONCLUSIONS AND ORDERS 

The Court concludes that Vega has not administratively exhausted his claims. The 

Court additionally concludes that Vega has not met his burden of showing that he is "in custody 

in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 224 1(c). 

Hence, it plainly appears from the petition and attached exhibits that Vega is not entitled to § 

2241 relief. The Court, therefore, enters the following orders: 

fees. 

IT IS ORDERED that Vega is GRANTED leave to proceed without prepaying costs or 

IT IS FURTHER ORDERED that Vega's pro se "Omnibus Motion" (ECF No. 1), 

which the Court construes as a petition for a writ of habeas corpus under 28 U.S.C. § 2241, and 

his civil cause are DISMISSED WITIIOUT PREJUDICE for failure to exhaust. 

IT IS FURTHER ORDERED that all pending motions, if any, are DENIED as moot. 

IT IS FINALLY ORDERED that the Clerk shall CLOSE this case. 

SIGNED this day of July 2020 

1IAVID C. GUtDEREAMA 

UNITED STATES DISTRICT JUDGE 

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