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United States of America v. Jhon J. Murillo


August 17, 2012


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:


On March 30, 2012, pro se*fn1 defendant Jhon J. Murillo ("Defendant") filed this motion requesting that the court "issue a judgment to the [Bureau of Prisons ("BOP")]" to credit him with time served in pre-trial detainment in Brooklyn, New York, between July 8, 2008 and his sentencing date, October 6, 2010. (See Letter from Def., Mar. 19, 2012, Dkt. Entry 86.) The Government argues that the motion should be denied as procedurally deficient or, in the alternative, denied on the merits. (See Letter from Government, Apr. 12, 2012, Dkt. Entry 87.) For the reasons set forth below, the court finds that Defendant's motion is procedurally deficient and, thus, the motion is denied.

A claim that the BOP miscalculated credit for time served should be brought as a habeas corpus petition under 28 U.S.C. § 2241 ("Section 2241"). See Roccisano v. Menifee, 293 F. 3d 51, 57 (2d Cir. 2002) ("Under § 2241, a prisoner may challenge the execution of his sentence, such as calculations by the Bureau of Prisons of the credit to be given for other periods of detention, or decisions to deny parole, or conditions of confinement." (emphasis original) (citations and internal quotation marks omitted). However, even if the court were to treat efendant's interpreting them to raise the strongest arguments they suggest. See Weixel v. Bd. of Educ. of N.Y., 287 F. 3d 138, 146 (2d Cir. 2002).

Defendant's motion as a Section 2241 petition, it would be deficient because, among other reasons, Defendant does not allege that he has exhausted his administrative remedies.

The Attorney General, through the BOP, is responsible for the custody of federal prisoners. See 18 U.S.C. § 3621(a); United States v. Wilson, 503 U.S. 329, 331 (1992). Moreover, it is the Attorney General who computes the amount of credit due a defendant for time served, if any, during presentence custody. Wilson, 503 U.S. at 334-35. Prisoners may pursue administrative review of the computation of their credits. See 28 C.F.R. §§ 542.10-542.19; Wilson, 503 U.S. at 335. Only after exhausting their administrative remedies may prisoners seek judicial review of the challenged computations. See Wilson, 503 U.S. at 335-36.

To appropriately exhaust administrative remedies, an inmate must follow a multi-level grievance procedure established by the BOP's Administrative Remedy Program. See 28 C.F.R. §§ 542.10-542.19; see also U.S. v. Lovaglio, 2007 WL 2752369, at *1 (E.D.N.Y. Sept. 20, 2007). Here, Defendant has not described the results of any administrative review of his claim, let alone that such review was exhausted. Accordingly, Defendant's motion is denied without prejudice to bringing a Section 2241 petition once he has exhausted his administrative remedies.*fn2


For the foregoing reasons, Defendant's motion is denied. As Defendant has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. See 28 U.S.C. § 2253. The court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this order would not be taken in good faith, and, therefore, in forma pauperis is denied for the purpose of an appeal.


DORA L. IRIZARRY United States District Judge

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