United States District Court, D. Arizona
Larry D. Brown-Bey, Petitioner,
J.T. Shartle, Warden, Respondent.
Honorable Bruce G. Macdonald United States Magistrate Judge.
pending before the Court is Petitioner Larry D.
Brown-Bey's pro se First Amended Petition Under
28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person
in Federal Custody (“Amended Petition”) (Doc.
10). Respondent has filed his Return and Answer to
Petitioner's Petition for a Writ of Habeas Corpus Under
28 U.S.C. § 2241 (“Response”) (Doc. 21).
Petitioner filed his Response to the Respondent's Return
and Answer to Petitioner's Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241 (“Reply”)
(Doc. 24). The Petition is ripe for adjudication.
initial matter, Petitioner named Louis Winn, Warden of the
United States Penitentiary-Tucson (“USP-Tucson”)
as the Respondent. See Amended Petition (Doc. 10).
The Court takes judicial notice, however, that Louis Winn is
no longer warden of USP-Tucson. As such, the Court will
substitute the new Warden of USP-Tucson, J. T. Shartle, as
Respondent pursuant to Rule 25(d) of the Federal Rules of
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
this matter was referred to Magistrate Judge Macdonald for
Report and Recommendation. The Magistrate Judge recommends
that the District Court deny the Amended Petition (Doc. 10).
FACTUAL AND PROCEDURAL BACKGROUND
is an inmate currently incarcerated at the United States
Penitentiary (“USP”) in Terre Haute, Indiana.
See Fed. Bureau of Prisons (“BOP”)
Inmate Locater, https://www.bop.gov/inmateloc/ (last
visited April 27, 2017). On November 8, 1999, Petitioner was
sentenced by the Superior Court of the District of Columbia
on six (6) counts of First Degree Child Sex Abuse and one (1)
count of Escape. Answer (Doc. 21), Borrego Decl. (Exh.
“1”), Superior Ct. of the Distr. of Columbia,
Case No. F8202-96, Judgment and Commitment/Probation Order
(Attach. “2”) at 1. On the same date, the
Superior Court for the District of Columbia also sentenced
Petitioner for a second Escape conviction. Id., Exh.
“1, ” Superior Ct. of the Distr. of Columbia,
Case No. F2442-98, Judgment and Commitment/Probation Order
(Attach. “3”) at 1. Petitioner's November
1999 sentence included three (3) consecutive twelve (12) to
thirty-six (36) year terms of imprisonment and two (2)
consecutive twenty (20) month to five (5) year sentences.
Id., Exh. “1, ” Attach. “2”
at 1 & Attach. “3” at 1. On December 3, 1999,
the Superior Court of the District of Columbia sentenced
Petitioner to a third twenty (20) month to five (5) year
sentence for a violation of the Bail Reform Act, and ordered
the sentence “to run consecutive to any other sentence
that defendant is currently serving.” Id.,
Exh. “1, ” Superior Ct. of the Distr. of
Columbia, Case No. F3021-97A, Judgment and
Commitment/Probation Order (Attach. “4”) at 1.
combined Petitioner's minimum and maximum terms for each
consecutive sentence to arrive at a single expiration full
term date (“EFT”), mandatory release date
(“MRD”), and parole eligibility date
(“PED”). Response (Doc. 21), Borrego Decl. (Exh.
“1”), United States Department of Justice
(“U.S. DOJ”), Federal Bureau of Prisons
(“BOP”), Program Statement P5880.33, Chapter 20
(Attach. “6”) at 4. Petitioner's combined
minimum term is thirty-six (36) years and sixty (60) months
and his combined maximum term is one hundred twenty-three
(123) years. See Response (Doc. 21), Exh. “1,
” District of Columbia Dept. of Corrections Face Sheet
No. 2, Case Nos. F8202-96, F2442-98 & F3021-97 (Attach.
“5”). Petitioner was credited with 568 days of
time served. Id., Exh. “1, ” Attach.
“5” at 3. Petitioner also earned seventy-five
(75) days of extra good time DC education credit awards
(“DCEGT”) by earning his Graduate Equivalency
Diploma (“GED”). Id., Borrego Decl.
(Exh. “1”), Sentence Monitoring Good Time Data
(Attach. “7”) at 1. Petitioner's mandatory
release date, his maximum consecutive sentences minus any
credit time and DCEGT, is projected to be February 2, 2121.
See Response (Doc. 21), Exh. “1, ”
Attach. “1” at 5. His parole eligibility date,
Petitioner's minimum consecutive sentences minus any
credit time and DCEGT, is February 3, 2039. Id.,
Exh. “1, ” Attach. “1” at 5.
filed his initial petition (Doc. 1) on April 21, 2014, which
was subsequently amended pursuant to Order of the Court.
See Order 4/29/2014 (Doc. 6); Order 5/22/2014 (Doc.
9). Petitioner asserts that BOP has miscalculated his
sentence, and that as “a D.C. prisoner from the
Superior Court of the District of Columbia  has the
expectation that he will be seen by the USPC after he has
completed one third of his original sentence.” Reply
(Doc. 24) at 6; see also Amended Petition (Doc. 10)
courts are always ‘under an independent obligation to
examine their own jurisdiction, ' . . . and a federal
court may not entertain an action over which it has no
jurisdiction.” Hernandez v. Campbell, 204 F.3d
861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990)). “Generally,
motions to contest the legality of a sentence must be filed
under § 2255 in the sentencing court, while petitions
that challenge the manner, location, or conditions of a
sentence's execution must be brought pursuant to §
2241 in the custodial court.” Id. at 864.
Therefore, before proceeding to any other issue a court must
establish whether a habeas petition is filed pursuant to
§ 2241 or § 2255 to determine whether jurisdiction
is proper. Id. at 865.
Petitioner does not claim that the sentencing court imposed
an illegal sentence; rather, he seeks relief with respect to
the BOP's calculation of his parole eligibility. Thus,
Petitioner is challenging the manner, location, or condition
of the execution of his sentence. When a petitioner
challenges the “manner in which his sentence was
executed, ” the action is “maintainable only in a
petition for habeas corpus filed pursuant to 28 U.S.C. §
2241.” Tucker v. Carlson, 925 F.2d 330, 331
(9th Cir. 1991); see also Tablada v. Thomas, 533
F.3d 800 (9th Cir. 2008) (section 2241 petition proper to
challenge BOP's calculation of good conduct time);
Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003)
(“a prisoner may seek a writ of habeas corpus under 28
U.S.C. § 2241 for ‘expungement of a disciplinary
finding from his record if expungement is likely to
accelerate the prisoner's eligibility for
parole'”) (quoting Bostic v. Carlson, 884
F.2d 1267, 1269 (9th Cir. 1989)); Weinstein v. U.S.
Parole Comm'n, 902 F.2d 1451, 1452 (9th Cir. 1990)
(“The district court had jurisdiction pursuant to 28
U.S.C. § 2241 to review a claim by a federal prisoner
challenging a decision of the United States Parole
Commission”). Challenges brought pursuant to §
2241 must be brought in the custodial court. At the time of
filing the Petition, Petitioner was incarcerated at
USP-Tucson in Arizona. Accordingly, this Court has
jurisdiction over this matter. See Francis v. Rison,
894 F.2d 353, 354 (9th Cir. 1990).