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CLD-373 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-2304

___________

CLEVELAND HOWARD,

Appellant

v.

ARCHIE B. LONGLEY, WARDEN

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. Civ. No. 1-12-cv-00037)

District Judge: Honorable Sean J. McLaughlin

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or

Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6

August 8, 2013

Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

(Opinion filed: August 27, 2013)

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OPINION

_________

PER CURIAM

Pro se appellant Cleveland Howard seeks review of the District Court’s denial of 

his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Because the 

appeal does not present a substantial question, we will summarily affirm.
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Howard is a federal inmate, who filed a habeas corpus petition claiming that the 

Federal Bureau of Prisons (“BOP”) erred in computing his sentence. The relevant facts 

are not in dispute. Howard was arrested in 2004 on state charges related to a robbery 

committed in Cincinnati. He was sentenced to three years in prison in January 2005. In 

October 2005, Howard pleaded guilty to federal conspiracy and firearm charges. One 

conspiracy charge related to the Cincinnati robbery; the remaining conspiracy charges 

related to other robberies. The plea agreement provided that Howard would receive a 

sentence of seventeen years in prison.

On January 11, 2006, Howard was sentenced to a seventeen-year term in federal 

prison. At the hearing, defense counsel asked if the federal sentence would run 

concurrently with the state sentence. After ascertaining that Howard had about eleven 

months left on his state sentence, the District Judge replied that the sentences would run 

concurrently and that the remaining eleven months would thus count toward Howard’s 

federal sentence. The subsequent order reflected this decision by recommending to the 

BOP that a portion of Howard’s sentence be served concurrently with his state sentence. 

Howard, who was appearing in federal court subject to a writ of habeas corpus ad 

prosequendum, was returned to state custody. He remained there until he was released to 

serve his federal sentence on December 12, 2006. The BOP determined that Howard’s 

federal sentence commenced on the day it was imposed, January 11, 2006. The BOP 

gave him one day of prior custody credit and fifty-seven days of credit pursuant to Willis 

v. United States, 438 F.2d 923 (5th Cir. 1971). According to the BOP, Howard has a 

projected release date of September 5, 2020.
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After challenging the computation of his sentence with the BOP, Howard filed a 

habeas corpus petition claiming that all time served on his state sentence should have 

counted against his federal sentence. The District Court denied the petition, concluding 

that Howard’s sentence was correctly computed. After the District Court denied his 

motion for reconsideration,1 Howard appealed.

Howard’s challenge to the BOP’s computation of his sentence is properly brought 

in a § 2241 petition. See United States v. Grimes, 641 F.2d 96, 99 (3d Cir. 1981). We 

have jurisdiction under 28 U.S.C. § 1291. We exercise de novo review over the denial of 

the petition. See Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007). The BOP is 

responsible for computing a federal prisoner’s period of incarceration under applicable 

federal law. See United States v. Wilson, 503 U.S. 329, 334-35 (1992). In calculating 

the sentence, the BOP determines (1) when the federal sentence commenced, and (2) 

whether there are any credits to which the prisoner may be entitled. See 18 U.S.C. 

§ 3585.

In this case, the BOP correctly determined that, pursuant to 18 U.S.C. § 3585(a), 

Howard’s sentence commenced on January 11, 2006, the date it was imposed. In making 

this determination, the BOP relied on guidelines that direct that the sentence for an 

inmate begins on the day it was imposed when the inmate, like Howard, (1) is in the 

primary custody of the state when his federal sentence is imposed, and (2) the court 

 

1 Howard sought reconsideration on the basis that the District Court might not have considered 

his objections to the Magistrate Judge’s Report and Recommendation. The court denied 

reconsideration because it had considered his objections, as reflected in the order denying the 

petition.
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orders the sentence to run concurrently with the state sentence. See Fed. Bureau of 

Prisons, Program Statement 5880.28, Sentence Computation Manual 1-13, 1-32A-33

(1999). This is the earliest possible date that Howard’s sentence could have commenced 

because a sentence cannot start earlier than the day it was imposed. Id. at 1-13; see also

United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980) (“[A] federal sentence cannot 

commence prior to the date it is pronounced, even if made concurrent with a sentence 

already being served.”) Howard nonetheless argues that his federal sentence should have 

commenced before it was imposed – at the start of his state sentence – relying on Barden 

v. Keohane, 921 F.2d 476 (3d Cir. 1990). Barden is of no help, however, because it 

involved the opposite sentencing situation: i.e., Barden’s federal sentence was imposed 

before his state sentence. Id. at 478. Barden thus did not involve the question of whether 

a federal sentence could commence before it was imposed. The simple fact here is that 

Howard received what the sentencing court recommended: the approximately eleven 

months remaining on his state sentence also counted against his federal sentence because 

the BOP ran his sentence concurrently with the state sentence from the day the federal 

sentence was imposed.2

Howard also argues that the sentencing court erred by not applying § 5G1.3 of the 

United States Sentencing Guidelines to adjust his sentence for all time served on the state 

sentence. The District Court concluded that Howard could not bring the claim in a 

 

2 Although Howard does not challenge the BOP’s computation of credits against his sentence, 

we note that he cannot receive credit for the time served on his state sentence prior to the 

commencement of his federal sentence because 18 U.S.C. § 3585(b)(2) does not allow an inmate 

to receive such double credit. See Wilson, 503 U.S. at 337.
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§ 2241 petition. We agree. A challenge under the Sentencing Guidelines goes to the 

validity of a sentence, rather than the execution of a sentence, and is thus inappropriate 

for a § 2241 petition. See United States v. Eakman, 378 F.3d 294, 297 (3d Cir. 2004). 

Howard could have presented this challenge in a motion under 28 U.S.C. § 2255, and he 

has not met the criteria for demonstrating that the remedy provided by § 2255 is 

inadequate or ineffective. See In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997).

 For these reasons, we will summarily affirm the District Court’s orders denying 

Howard’s habeas corpus petition and his motion for reconsideration. See 3d Cir. L.A.R. 

27.4; I.O.P. 10.6.