NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SEBASTIAN LEIGH ECCLESTON, :

Civil Action No. 11-1352 (JAP)

Petitioner, :

v. : OPINION

UNITED STATES OF AMERICA, :

Respondent. :

PISANO, District Judge

Petitioner Sebastian Leigh Eccleston, a prisoner currently

confined at the United States Penitentiary at Lompoc,

California, has submitted a petition for a writ of habeas corpus 1

pursuant to 28 U.S.C. § 2241, challenging the calculation of his 2

sentence.

This matter is presently before the Court pursuant to

Respondent’s Motion [9] to Dismiss.

 At the time he submitted his Petition, Petitioner was 1

confined within the District of New Jersey. Accordingly, this

Court retains jurisdiction to decide this matter.

 Section 2241 provides in relevant part: 2

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- . . . (3) He is in custody in

violation of the Constitution or laws or treaties of

the United States . . . .

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I. BACKGROUND

On a date not reflected in the record presented to this

Court, Petitioner was arrested by state authorities in New Mexico

on murder and related charges and was then detained in state

custody. Eccleston v. United States, Civ. No. 09-2654, 2010 WL

44562 (D.N.J. Feb. 3, 2010), aff’d, 390 Fed.Appx. 62 (3d Cir.

2010).

While in state custody, Petitioner was indicted in federal

court on carjacking and related charges. See United States v.

Eccleston, Crim. No. 95-0014, 1997 U.S. App. LEXIS 35615 (10th

Cir. 1997). On March 7, 1996, May 3, 1996, and October 29, 1996,

pursuant to writs of habeas corpus ad prosequendum issued by the

U.S. District Court for the District of New Mexico, U.S. Marshals

brought Petitioner from state custody to proceedings in federal

court and returned him to state custody immediately thereafter.

Specifically, on October 29, 1996, Petitioner was brought to

federal court for sentencing in Criminal Action No. 95-0014

(D.N.M.). On that date, Petitioner was sentenced to an aggregate

term of 417 months’ imprisonment to be followed by three years’

supervised release.

Several hours later, also on October 29, 1996, after being

returned to state authorities, Petitioner was sentenced in state

court following his conviction pursuant to a guilty plea of

murder and conspiracy to commit murder. State of New Mexico v.

2

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Eccleston, Crim. No. 94-3191 (Second Judicial District, County of

Bernalilio, State of New Mexico). In state court, Petitioner was

sentenced to a term of life imprisonment and a consecutive term

of nine years, all to run concurrently with the previouslyimposed federal sentence. See Mot. to Dismiss, Decl. of Kinda

Flagg.

In January 2011, Petitioner’s New Mexico life sentence was

vacated and he was re-sentenced to a term of imprisonment of

sixteen years. On January 28, 2011, the State of New Mexico

released Petitioner from his state sentence. Officials in New

Mexico have advised the Federal Bureau of Prisons that

Petitioner’s sentence was satisfied as of July 9, 2006.

Upon his release from state prison, Petitioner was

transferred to the United States Marshal Service and is now

confined at the United States Penitentiary at Lompoc, California.

Here, Petitioner challenges the calculation of his federal

sentence, asserting that he should have been awarded credit for

various periods of custody prior to the time he entered federal

custody on January 28, 2011. Respondent has moved to dismiss on

the ground that Petitioner has failed to exhaust his

administrative remedies. Petitioner has not filed any 3

opposition to the motion to dismiss.

 Indeed, Petitioner has failed to file any administrative 3

remedies since he entered federal custody. See Mot. to Dismiss,

Decl. of Vanessa Herbin-Smith.

3

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II. ANALYSIS

Although 28 U.S.C. § 2241 contains no statutory exhaustion

requirement, a federal prisoner ordinarily may not bring a

petition for writ of habeas corpus under 28 U.S.C. § 2241,

challenging the execution of his sentence, until he has exhausted

all available administrative remedies. See, e.g., Callwood v.

Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States

Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v.

Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). The exhaustion

doctrine promotes a number of goals:

(1) allowing the appropriate agency to develop a

factual record and apply its expertise facilitates

judicial review; (2) permitting agencies to grant the

relief requested conserves judicial resources; and (3)

providing agencies the opportunity to correct their own

errors fosters administrative autonomy.

Goldberg v. Beeler, 82 F.Supp.2d 302, 309 (D.N.J. 1999), aff’d,

248 F.3d 1130 (3d Cir. 2000). See also Moscato v. Federal Bureau

of Prisons, 98 F.3d 757, 761 (3d Cir. 1996). Nevertheless,

exhaustion of administrative remedies is not required where

exhaustion would not promote these goals. See, e.g., Gambino v.

Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required

where petitioner demonstrates futility); Lyons v. U.S. Marshals,

840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where

it “would be futile, if the actions of the agency clearly and

unambiguously violate statutory or constitutional rights, or if

4

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the administrative procedure is clearly shown to be inadequate to

prevent irreparable harm”).

In general, the BOP Administrative Remedy Program is a

multi-tier process that is available to inmates confined in

institutions operated by the BOP for “review of an issue which

relates to any aspect of their confinement.” 28 C.F.R. 4

§ 542.10. An inmate must initially attempt to informally resolve

the issue with institutional staff. 28 C.F.R. § 542.13(a). If

informal resolution fails or is waived, an inmate may submit a

BP-9 Request to “the institution staff member designated to

receive such Requests (ordinarily a correctional counsel)” within

20 days of the date on which the basis for the Request occurred,

or within any extension permitted. 28 C.F.R. § 542.14. An

inmate who is dissatisfied with the Warden’s response to his BP-9

Request may submit a BP-10 Appeal to the Regional Director of the

BOP within 20 days of the date the Warden signed the response. 

28 C.F.R. § 542.15(a). The inmate may appeal to the BOP’s

General Counsel on a BP-11 form within 30 days of the day the

 “This rule does not require the inmate to file under the 4

Administrative Remedy Program before filing under statutorilymandated procedures for tort claims (see 28 CFR 543, subpart C),

Inmate Accident Compensation claims(28 CFR 301), and Freedom of

Information Act or Privacy Act requests (28 CFR 513, subpart

D),[ or other statutorily-mandated administrative procedures].” 

67 Fed. Reg. 50804-01, 2002 WL 1789480 (August 6, 2002).

5

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Regional Director signed the response. Id. Appeal to the 5

General Counsel is the final administrative appeal. Id. If

responses are not received by the inmate within the time allotted

for reply, “the inmate may consider the absence of a response to

be a denial at that level.” 28 C.F.R. § 542.18.

The Attorney General is responsible for computing federal

sentences for all offenses committed on or after November 1,

1987. United States v. Wilson, 503 U.S. 329 (1992); 18 U.S.C.

§ 3585. The Attorney General has delegated that authority to the

Director of the Bureau of Prisons. 28 C.F.R. § 0.96 (1992).

Computation of a federal sentence is governed by 18 U.S.C.

§ 3585, and is comprised of a two-step determination: first, the

date on which the federal sentence commences and second, the

extent to which credit is available for time spent in custody

prior to commencement of the sentence.

(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.

(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

 Response times for each level of review are set forth in 5

28 C.F.R. § 542.18.

6

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(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.

18 U.S.C. § 3585(a), (b).

The claim presented by Petitioner -- that he should be

awarded credit against his federal sentence for certain periods

of custody prior to January 28, 2011 -- is precisely the type of

claim review of which depends upon the development of an

administrative record. Nothing before this Court suggests that

exhaustion of administrative remedies would be “futile.”

7

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III. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed without prejudice for failure to exhaust administrative

remedies. An appropriate order follows.

S/ Joel A. Pisano 

Joel A. Pisano

United States District Judge

Dated: December 7, 2011

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