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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA 

PANAMA CITY DIVISION

CORNELIUS DEWAYNE TAYLOR,

 Petitioner, 

vs. Case No. 5:10cv194/RS/CJK 

UNITED STATES BUREAU OF PRISONS,

 Respondent.

REPORT AND RECOMMENDATION

This cause is before the Court upon petitioner’s amended petition for writ of

habeas corpus filed under 28 U.S.C. § 2241. (Doc. 7). Respondent filed an answer,

submitting relevant administrative and judicial records. (Doc. 14). Petitioner replied. 

(Doc. 17). The matter is referred to the undersigned magistrate judge for report and

recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After

careful consideration, the undersigned concludes that the amended petition should be

denied because petitioner failed to properly exhaust his administrative remedies and,

alternatively, because petitioner’s claims do not warrant habeas relief under § 2241.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner is a federal inmate confined at the Federal Correctional Institution

in Marianna, Florida. (Doc. 7, p. 1). Petitioner is serving a 119-month sentence for

Possession with Intent to Distribute Crack Cocaine, imposed by the United States

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District Court for the Southern District of Alabama in United States v. Taylor, Case

Number 1:07cr71-CB. (Doc. 7, p. 2; Doc. 14, Kitka Decl., Attach. 3). In this habeas

proceeding, petitioner claims the BOP failed to correctly compute his sentence (the

BOP refused to credit petitioner’s sentence for time he served in state custody from

September 28, 2006 to December 30, 2007). (Doc. 7, pp. 3-3a). Petitioner also

claims he should be resentenced under the amended sentencing guidelines for crack

cocaine. (Id., pp. 4-4a). As relief, petitioner seeks “Credit for time served in state

custody to be run concurrent with federal sentence. To be resentenced under new

guidelines of 18/1 in order to correct a manifest injustice.” (Id., p. 6). 

The record evidence establishes the following facts. On September 28, 2006,

petitioner was arrested by the Mobile County Alabama Sheriff’s Department for

selling narcotics. (Doc. 14, Kitka Decl. ¶4 and Attach. 1 ¶ 12). On October 6, 2006,

the State of Alabama issued a Petition to Revoke Probation in Mobile County

Alabama Circuit Court case number CC1998-3008. (Doc. 14, Kitka Decl. ¶ 5 and

Attach. 1 ¶ 38). Petitioner’s state probation was revoked on December 14, 2006. 

(Kitka Decl. ¶ 6 and Attach. 1 ¶ 38). On January 8, 2007, petitioner was sentenced

in Mobile County Circuit Court case number CC1998-3008 to 5 years in state prison

with credit for 207 days served. (Kitka Decl. ¶ 7 and Attach. 1 ¶ 38 and Attach. 5). 

On April 4, 2007, petitioner was charged in a 4-count indictment filed in

federal court (Southern District of Alabama Case Number 1:07cr71-CB) with

Conspiracy, Distribution and Possession of Cocaine. (Kitka Decl. ¶ 8 and Attach. 1

¶ 1). The offense conduct was alleged to have occurred from January 1, 2005 until

the date of indictment. (Id.). On May 16, 2007, petitioner was produced on a Writ of

HabeasCorpus ad Prosequendum for his appearance in Southern District of Alabama

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Case Number 1:07cr71-CB. (Kitka Decl. ¶ 9 and Attach. 2). On October 23, 2007,

petitioner entered a guilty plea in Case Number 1:07cr71-CB to Possession with

Intent to Distribute Crack Cocaine, in violation of 21 U.S.C. § 841(a)(1). (Kitka

Decl. ¶ 10 and Attach. 3). Petitioner was convicted of the Possession offense (the

other counts were dismissed), and sentenced to 144 months imprisonment followed

by 3 years of supervised release. (Id.). At sentencing, the court made a

recommendation to the Bureau of Prisons(“BOP”) that petitioner “be given credit for

time already served in federal custody,” and that the time be determined by the BOP. 

(Id.). The sentencing court did not order that petitioner’s federal sentence run

concurrent with his state sentence. Petitioner was returned to Mobile County,

Alabama on December 15, 2007, in satisfaction of the Writ of Habeas Corpus ad

Prosequendum. (Kitka Decl. ¶ 11 and Attach. 4). The United States Marshal Service

(“USMS”) placed a detainer on petitioner at that time. (Kitka Decl., Attach. 4). 

On December 30, 2007, petitioner satisfied his state court sentence in Mobile

County, Alabama case number CC1998-3008. (Kitka Decl. ¶ 12 and Attach. 5). 

However, petitioner remained in Mobile County detention pending the state court

charges for which he was arrested on September 28, 2006. (Id.). On February 12,

2008, petitioner’s state court charges in Mobile County, Alabama were dismissed. 

(Kitka Decl. ¶ 13). Because petitioner had completed his Probation Violation

sentence in state court case number CC1998-3008, petitioner was turned over to

federal custody on February 12, 2008, pursuant to the USMS detainer. (Kitka Decl

¶13 and Attach. 4). 

On March 12, 2008, staff at the BOP Designation and Sentence Computation

Center (“DSCC”) in Grand Prairie, Texas, contacted staff at the Mobile County

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Sheriff’s Department and the Alabama Department of Corrections, to obtain

information about petitioner’s prior custody credit. (Kitka Decl. ¶ 14 and Attach. 5). 

DSCC staff determined that all the time petitioner spent in detention from the date

of his arrest on September 28, 2006, until the expiration of his state sentence on

December 30, 2007, was credited to petitioner’s Alabama Probation Violation

sentence. (Id.). 

On August 15, 2008, the Southern District of Alabama sentencing judge

granted petitioner’s motion for sentence reduction based on the 2008 amendments to

the sentencing guidelines, and reduced petitioner’s federalsentence from144 months

to 119 months. (Doc. 14, Kitka Decl., Attach. 7). The amended sentence was less

than the amended guideline range. (Id.). On June 25, 2009, staff at the DSCC

prepared a sentence computation, commencing petitioner’s 119-month federal

sentence on December 30, 2007. (Doc. 7, Attach., p. 7). Petitioner was given no jail

credit. 

On July 22, 2009, petitioner submitted a BP-9, Request for Administrative

Remedy to his institution, requesting credit for time spent in state custody. (Doc. 14,

Kitka Decl. ¶ 18 and Attach. 13). The BOP evaluated whether petitioner was eligible

for a retroactive (nunc pro tunc) designation of a state detention facility as the place

for service of petitioner’s federal sentence, under Barden v. Keohane, 921 F.2d 476

(3 Cir. 1990). (Kitka Decl. ¶ 18 and Attachs. 13, 14). On July 28, 2009, staff at the

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DSCC completed a Barden Request Information Worksheet. (Id.). The BOP

declined to consider a nunc pro tunc designation and found that Barden did not apply,

because petitioner’s state sentence was imposed before petitioner’s federal sentence

was imposed. (Id.). 

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On September 24, 2009, petitioner submitted an informal complaint asserting

that he was entitled to jail credit from June 15, 2006 to October 23, 2007. (Doc. 7,

Attach., p. 6). Petitioner’s attempt at informal resolution was unsuccessful. On

September 25, 2009, petitionersubmitted a Requestfor AdministrativeRemedy to the

warden of his institution seeking jail credit for June 15, 2006 to October 23, 2007,

claiming he was entitled to credit for “all the time spent in official detention. Nunc

Pro Tunc from the date of arrested [sic] until sentencing.” (Id., Attach., p. 5). The

warden denied relief, explaining:

This isin response to your Administrative Remedy dated September 29,

2009, in which you request that you receive (Nunc Pro Tunc)

designation – prior custody credit from the date of arrest until

sentencing.

The credit which you request is precluded under Title 18 U.S.C. 3585(b)

at this time. Your request has been forwarded to the Designation and

Sentence Computation Center (DSCC) for a review. You will be

advised of the Bureau ofPrisons’s determination upon completion of the

review.

The relief you seek can not be granted at this level.

If dissatisfied with this response, you may appeal this decision to the

Southeast Regional Director, Federal Bureau of Prisons. . . . Your

appeal must be received in the Regional Director’s Office within 20

calendar days of the date of this response.

(Doc. 7, Attach., p. 4). The warden’s response was dated Noveber 3, 2009. (Id.). On

November 12, 2009, petitioner appealed by submitting a Regional Administrative

Remedy Appeal. (Id., p. 3). The Regional Director denied relief, explaining:

You state you are entitled to prior custody jail credit fromJune 15, 2006,

to October 13, 2007. As reilef, you request a nunc pro tunc designation

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to award this credit.

As you were previously informed, the credit you request is precluded

under Title 18 U.S.C. § 3585(b). Your request has been forwarded to

the Designation and Sentence Computation Center for review and

determination in accordance with Bureau of Prisons’ ProgramStatement

5160.05, Designation of State Institution for Service of Federal

Sentence. You must continue the administrative remedy process in

order to be advised of the status of the determination.

Accordingly, your Administrative Remedy Appeal response is for

informational purposes only. If dissatisfied with thisresponse, you may

appeal to the Bureau of Prison, Office of General Counsel. . . . Your

appeal must be received in the Office of the General Counsel within 30

calendar days from the date of this response.

(Id., Attach., p. 2). The Regional Director’s response was dated December 4, 2009.

(Id.). On January 14, 2010, petitioner submitted a Central Office Administrative

Remedy Appeal to the General Counsel, claiming that he was entitled to jail credit

under Barden and 18 U.S.C. § 3585(b), fromJune 15, 2006 to October 23, 2007. (Id.,

Attach. p. 1). Petitioner’s appeal was received on January 26, 2010, and rejected as

untimely. (Kitka Decl. ¶ 30).

On October 29, 2010, staff at the DSCC prepared another sentence

computation, commencing petitioner’s 119-month federal sentence on February 12,

2008, the date petitioner was received into exclusive federal custody. (Kitka Decl.

¶ 15 and Attach. 6). DSCC staff reviewed documentation from the Alabama

Department of Corrections and determined that petitioner was entitled to 43 days jail

credit for the period December 31, 2007 through February 11, 2008, because that was

time petitioner spent in custody as a result of the state charge for which petitioner was

arrested after the commission of petitioner’s federal offense, but for which petitioner

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did not receive credit against another sentence (because the state charge was

ultimately dismissed). (Kitka Decl. ¶ 29 and Attachs. 9, 11). Petitioner was not given

credit for the period September 28, 2006 to December 30, 2007, which is what

petitioner now seeks. 

DISCUSSION

Exhaustion

Respondent asserts that the amended petition should be dismissed, because

petitioner failed to properly exhaust his administrative remedies with the BOP before

seeking habeasrelief in this Court. (Doc. 14, pp. 8-9, 16-17). Prisoners must exhaust

administrative remedies before habeasrelief can be granted, including relief under 28

U.S.C. § 2241. Skinner v. Wiley, 355 F.3d 1293, 1295 (11 Cir. 2004) (holding that th

exhaustion is required “in all habeas cases,” including those brought under § 2241). 

The exhaustion requirement isjurisdictional. Winck v. England, 327 F.3d 1296, 1300

n.1 (11 Cir. 2003) (recognizing that although there is no statutory requirement that th

a federal inmate exhaust his administrative remedies prior to filing a § 2241 petition,

exhaustion isjurisdictional in the Eleventh Circuit); United States v. Lucas, 898 F.2d

1554, 1555-56 (11 Cir. 1990) (holding that a federal district court does not have th

jurisdiction to consider a defendant’s claim that he is entitled to sentence credit under

18 U.S.C. § 3585(b) if the defendant failsto exhaust his administrative remedies with

the BOP before seeking judicial relief); see also United State v. Berrio, 428 F. App’x

944 (11 Cir. 2011) (same). The exhaustion requirement applies to prisoners th

challenging the computation of their jail-time credit. Lucas, supra; United States v.

Nyhuis, 211 F.3d 1340, 1345 (11 Cir. 2000) (“A claim for credit for time served is th

brought under 28 U.S.C. § 2241 after the exhaustion of administrative remedies.”);

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see also United States v. Wilson, 503 U.S. 329, 335-36, 112 S. Ct. 1351, 1355, 117

L. Ed. 2d 593 (1992) (noting that federal prisoners may seek judicial review of the

BOP’s jail-time credit determinations after exhausting their administrative remedies).

TheBOP provides a four-level administrative grievance procedure for prisoner

complaints. 28 C.F.R. § 542.10-542.19. Each of these steps is generally required to

satisfy the exhaustion requirement. The prisoner must first seek resolution of his

issue through an informal grievance. 28 C.F.R. § 542.13(a). If not satisfied with the

response, the inmate may file a formal written complaint with the warden of his

institution. Id. at § 542.14. The warden’s response may be appealed to the Regional

Director, 28 C.F.R. § 542.15(a). The Regional Director’s response may be appealed

to the General Counsel for the BOP. 28 C.F.R. § 542.15(a). The prisoner’s appeal

to the General Counsel must be submitted within 30 calendar days of the date the

Regional Directorsigned his response. 28 C.F.R. § 542.15(a). A remedy request that

does not meet program requirements may be rejected by an administrative remedy

coordinator at any level and returned to the inmate. 28 C.F.R. § 542.17. 

The Regional Directorsigned the response to petitioner’s appeal on December

4, 2009. (Doc. 7, Attach. Regional Administrative Remedy Appeal No. 558234-R1,

Response). Petitioner signed/submitted hisAppeal to the GeneralCounsel on January

14, 2010. (Doc. 7, Attach. Central Office Administrative Remedy Appeal). 

Respondent’s evidence establishes, and petitioner does not dispute, that petitioner’s

Appeal to the General Counsel wasrejected as untimely. (Doc. 14, Kitka Decl. ¶ 30). 

Petitioner’s failure to properly exhaust his sentence credit claim precludes habeas

review. See, e.g. Skinner, supra (dismissing federal prisoner’s §2241 petition

challenging disciplinary proceeding because prisoner failed to exhaust his

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administrative remedies prior to filing suit); Watkins v. Haynes, 445 F. App’x 181

(11 Cir. 2011) (dismissing federal prisoner’s § 2241 petition challenging finding that th

prisoner assaulted prison staff member; prisoner failed to submit an appeal to the

regional office within 20 days of the warden’s response and his failure to do so, or to

request an extension of time, constituted a failure to exhaust administrative remedies

precluding habeas review under 28 U.S.C. § 2241). 

Respondent’s evidence further establishes, and petitioner admits,that petitioner

did not exhaust the administrative remedy procedures concerning his claim that his

sentence should be further reduced under the amended guidelines for crack cocaine. 

(Doc. 14, Kitka Decl. ¶ 30; Doc. 7, p. 4). Petitioner’s failure to exhaust his

administrative remedies preludes habeas review of this issue. 

Merits

Even if petitioner properly exhausted his administrative remedies, his petition

should be denied. The Attorney General, through the BOP, has the responsibilty for

administering a federal defendant’s sentence and possesses the exclusive authority

to compute sentence credit awards after sentencing. United States v. Wilson, 503 U.S.

at 334-35, 112 S. Ct. at 1354-55 (holding that after a defendant is sentenced, it falls

to the BOP to determine whether the defendantshould receive credit under 18 U.S.C.

§ 3585(b) for time spent in custody before the sentence “commenced”); Rodriguez v.

Lamer, 60 F.3d 745, 747 (11 Cir. 1995). Prior custody credit is governed by 18 th

U.S.C. § 3585, which provides:

(a) Commencement of sentence. – A sentence to a term of

imprisonment 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.

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(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.

Id. (emphasis added). In enacting § 3585(b), Congress “made clear that a defendant

could not receive a double credit for his detention time.” Wilson, 503 U.S. at 337,

112 S. Ct. at 1356; Dawson v. Scott, F.3d 884, 886 (11 Cir. 1995) (same). th

The record establishes that petitioner’s federal sentenced commenced on

February 12, 2008, the date petitioner’s state sentence expired and petitioner was

turned over to the USMS for service of his federal sentence. See also, e.g., Butler v.

Warden, FCC Coleman-Medium, No. 10-15960, 2011 WL 5964607 (11 Cir. Nov.

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28, 2011) (holding that federal prisoner’s federal sentence was properly calculated

beginning on the date he wasturned over to federal authorities after having served his

state sentence; when the federal government takes possession of a state prisoner

pursuant to a writ of habeas corpus ad prosequendum, the state’s custody is not

interrupted, and the prisoner’s federal sentence does not begin to run until he is

turned over to federal authorities after having served his state sentence) (citing

Causey v. Civiletti, 621 F.2d 691, 693 (5 Cir. 1980), and United States v. Evans, 159

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F. 3d 908, 912 (4 Cir. 1998)). The record further establishes that the BOP’s most

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time credit for the period December 30, 2007 through February 11, 2008. (Doc. 14,

Kitka Decl. ¶ 29 and Attach. 9). Petitioner’s assertion in his reply that he did not

receive such credit is conclusively rebutted by the record. (Doc. 16). The record also

establishes, and petitioner does not dispute, that the Alabama Department of

Corrections credited petitioner’s state Probation Violation sentence in Case Number

CC1998-3008 for the time petitioner spent in custody from September 28, 2006

through December 30, 2007. (Kitka Decl. ¶ 14 and Attach. 5). Because § 3585(b)

expressly precludes the BOP from granting credit for time “credited against another

sentence,” the BOP did not err in giving effect to this plain language and not giving

petitioner credit for that time served. See Leal v. Tombone, 341 F.3d 427, 430 (5th

Cir. 2003) (holding that the BOP was not required to credit prisoner’s state custody

time toward his federal sentence where that time was credited against the prisoner’s

state sentence); United States v. Dennis, 926 F.2d 768, 770 (8 Cir. 1991) (same);see

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also Scruggs v. Adkinson, 423 F. App’x 858, at *3 (11 Cir. 2011) (holding that

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federal prisoner was not entitled to credit toward his federal sentence for 10 months

served in pre-trial detention in state court, because that time was credited toward

prisoner’s state sentence). Petitioner is not entitled to habeas relief on his sentence

credit claim.

As to petitioner’s claim that he is entitled to a reduction of his sentence based

on retroactive sentencing guidelines amendments concerning crack cocaine, the

record establishes that the BOP recalculated petitioner’s sentence after the sentencing

court reduced petitioner’s sentence from 144 months to 119 months under the 2008

amendments to the sentencing guidelines. Petitioner fails to demonstrate that the

BOP’s recalculation of his sentence after the reduction was improper. To the extent

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petitioner claims that his sentence should be further reduced under the 2010

amendments to the guidelines, habeas relief under 28 U.S.C. § 2241 is unavailable. 

On December 1, 2011, petitioner moved the sentencing court under 18 U.S.C. §

3582(c)(2) for a sentence reduction under the 2010 amendments to the guidelines.

(See United States v. Taylor, Case No. 1:07cr71-CB, Doc. 38). On December 23,

2011, the sentencing court denied the motion, concluding that petitioner “is not

eligible for a reduction ofsentence based on Amendment 750 because the amendment

does not have the effect oflowering the defendant’s applicable guideline range.” (See

United States v. Taylor, Case No. 1:07cr71-CB, Doc. 40). The BOP was not required

to recalculate petitioner’s sentence, because petitioner’s sentence was not further

reduced by the 2010 amendments. Petitioner cannot use this habeas proceeding to

appeal the sentencing court’s order, or to obtain a sentence modification under 18

U.S.C. § 3582 or 28 U.S.C. § 2255. See Sawyer v. Holder, 326 F.3d 1353, 1365 (11

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Cir. 2003) (“Typically, a petitioner collaterally attacks the validity of his federal

sentence by filing a petition under 28 U.S.C. § 2255.”); Wofford v. Scott, 177 F.3d

1236, 1244 (11 Cir. 1999) (setting out the requirements a federal prisoner must meet th

in order for the “savings clause” of 28 U.S.C. § 2255 to open the portal for a claim

to proceed under § 2241). Petitioner is not entitled to habeas relief on his sentence

reduction claim. 

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Accordingly, it is respectfully RECOMMENDED:

That the amended petition for writ of habeas corpus filed under 28 U.S.C. §

2241 (doc. 7) be DENIED, and that the Clerk be directed to close the file.

At Pensacola, Florida, this 26th day of March, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy thereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636;

United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

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