Garza

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DERRICK HOUSTON, :

Petitioner : No. 1:23-cv-01483

:

v. : (Judge Kane)

:

WARDEN F. GARZA, :

Respondent :

MEMORANDUM

Currently before the Court is pro se Petitioner Derrick Houston (“Houston”)’s petition for

a writ of habeas corpus under 28 U.S.C. § 2241 in which he claims that the Federal Bureau of

Prisons (“BOP”) failed to apply credit for time he served in pretrial federal confinement prior to

his commencing his federal sentence. For the reasons stated below, the Court will dismiss the

petition.

I. BACKGROUND

A. Houston’s Relevant Criminal History

On February 19, 2001, Houston robbed and assaulted an employee of a package store

located in Mississippi while possessing a firearm. See Houston v. State, 887 So. 2d 808, 811

(Miss. Ct. App. 2004) (“Houston I”); (Doc. Nos. 2 at 1; 13-1 at 4, 10, 12). A jury sitting in the

Lauderdale County Circuit Court in Meridian, Mississippi found him guilty of robbery by use of

a deadly weapon and aggravated assault on June 20, 2022. See Houston I, 887 So. 2d at 812;

Houston v. Kelly, No. 06-cv-00085, 2007 WL 609921, at *1 (S.D. Miss. Jan. 19, 2007)

(“Houston II”); (Doc. No. 13-1 at 4, 10, 12).1 On the same date, Houston was sentenced to an

1 As explained infra, Houston fails to accurately account for his criminal history in his habeas

petition and supporting memorandum of law. For instance, Houston does not mention his

conviction for aggravated assault in his habeas petition or that his robbery conviction involved

his use of a deadly weapon. See (Doc. No. 2 at 1 (describing Mississippi conviction as only a

aggregate term of twenty years’ state incarceration. See Houston I, 887 So. 2d at 811; Houston

II, 2007 WL 609921, at *1; (Doc. No. 13-1 at 4, 13).2 The trial court also determined that

Houston would receive pretrial credit of one hundred and forty-two days of pretrial confinement,

meaning that his sentence effectively commenced on January 29, 2002. See (Doc. No. 13-1 at

13).

While incarcerated pursuant to his Mississippi sentence, Houston pleaded guilty to felony

escape on October 4, 2002, and the Lauderdale County Circuit Court sentenced him to one year

of incarceration, which was to run consecutive to his twenty-year sentence. See (id. at 14–15).

Then, on December 5, 2005, Houston was sentenced to an aggregate term of twenty years’

incarceration by the Warren County Circuit Court in Bowling Green, Kentucky. See (id. at 2,

17–18). This sentence was ordered to run consecutively to his Mississippi sentences, which

Houston was still serving. See (id. at 2, 18).

On October 20, 2006, Houston pleaded guilty to three counts of armed robbery in the

Eighteenth Judicial Circuit Court in the County of Du Page, Illinois. See (id. at 21–22). He was

sentenced to fifteen years’ incarceration, which was to run concurrently to his Mississippi

sentences. See (id. at 21). He was also ordered to receive pretrial custody credit starting on

December 19, 2001. See (id.).

robbery conviction). Overall, the only state-court conviction he describes in his memorandum of

law is his Mississippi robbery conviction. See (id.).

2 Houston asserts that he received an aggregate term of confinement for twenty-one years in his

petition (Doc. No. 2 at 1), which is belied by the records produced by Respondent as well as the

public records relating to his Mississippi criminal case showing that he received a twenty-year

sentence for his robbery and aggravated assault convictions.

On October 8, 2020, while still serving his Mississippi sentences in the Mississippi

Department of Corrections (“MDOC”), a grand jury in the United States District Court for the

Northern District of Mississippi returned a second superseding indictment charging Houston and

several other individuals, all alleged to be members of the Gangster Disciples, with racketeering

conspiracy. See United States v. Houston, No. 19-cr-00065-11 (N.D. Miss. filed Oct. 8, 2020)

(“Houston III”), ECF No. 305; (Doc. No. 13-1 at 24–40).3 Twenty days later, on October 28,

2020, Houston was transferred from Mississippi to the temporary custody of the United States

Marshals Service (“USMS”) through a writ of habeas corpus ad prosequendum to address his

racketeering conspiracy charges in the Northern District of Mississippi. See (Doc. No. 13-1 at 4,

46–48). While still in USMS custody, Houston pleaded guilty to conspiracy to commit

racketeering activity (18 U.S.C. §§ 1962(d), 1963), and the Northern District of Mississippi

sentenced him on October 5, 2022, to an aggregate sentence of two-hundred months’

imprisonment, which was to run concurrently to his Kentucky sentence. See Houston III, ECF

No. 522 at 2. There was no reference to any of Houston’s other state sentences in the criminal

judgment. See id.

On November 4, 2022, Houston was returned to the custody of the MDOC, with his

federal judgment lodged as a detainer. See (Doc. No. 13-1 at 5, 46). On January 24, 2023,

Houston satisfied his Mississippi state sentences, but he was released to the streets instead of

being turned over to the custody of Kentucky authorities to start serving his Kentucky state

sentence. See (id. at 5, 10, 17, 46, 47, 59, 62). He was later arrested and taken into custody by

3 The Court takes judicial notice of the docket in Houston’s underlying federal criminal case.

See Orabi v. Att’y Gen. of the U.S., 738 F.3d 535, 537 n.1 (3rd Cir. 2014) (stating that the court

“may take judicial notice of the contents of another [c]ourt’s docket”); Wilson v. McVey, 579 F.

Supp. 2d 685, 688 n.5 (M.D. Pa. 2008) (taking judicial notice of court docket).

the USMS on February 1, 2023. See (id. at 5, 46, 47). According to the BOP’s inmate locator

(https://www.bop.gov/inmateloc/), Houston has an anticipated release date of November 18,

2033.

B. Procedural History

Houston commenced the instant action by filing a Section 2241 habeas petition and a

supporting memorandum of law, both of which were docketed by the Clerk of Court on

September 7, 2023. (Doc. Nos. 1, 2.)4 On November 15, 2023, the Court issued an Order

which, inter alia, directed Respondent to file a response to Houston’s Section 2241 petition.

(Doc. No. 6.) After receiving two extensions of time to file his response, Respondent timely

filed a response in opposition to Houston’s habeas petition on February 5, 2024. (Doc. No. 13.)

Houston never filed a reply brief in further support of his petition; therefore, his Section 2241

petition is ripe for disposition.

II. LEGAL STANDARDS

A. Section 2241 Habeas Petitions

Section 2241 confers federal jurisdiction over a habeas petition that has been filed by a

federal inmate challenging “not the validity but the execution of [their] sentence.” See Cardona

v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012) (citations and footnote omitted); Woodall v. Fed.

Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (stating that Section 2241 “allows a federal

4 Houston neither remitted the filing fee nor sought leave to proceed in forma pauperis when he

filed his habeas petition; as such, an Administrative Order issued on September 7, 2023,

requiring him to either pay the fee or file an application for leave to proceed in forma pauperis

within thirty days or risk dismissal of the case. (Doc. No. 4.) After more than thirty days passed

without Houston responding to the Administrative Order, the Court issued an Order dismissing

the case without prejudice on October 16, 2023. (Doc. No. 5.) However, on October 27, 2023,

the Clerk of Court received the $5 filing fee. See (Unnumbered Docket Entry Between Doc.

Nos. 5 & 6). Because Houston paid the fee, the Court issued an Order directing the Clerk of

Court to reopen the case. (Doc. No. 6.)

prisoner to challenge the ‘execution’ of his sentence in habeas”). While “the precise meaning of

‘execution of the sentence’ is hazy[,]” the phrase has been interpreted as to “put into effect” or

“carry out.” See Woodall, 432 F.3d at 242, 243 (citation omitted). As a result, a federal inmate

may challenge conduct undertaken by the BOP that affects the duration of the inmate’s custody.

See, e.g., Barden v. Keohane, 921 F.2d 476, 478–79 (3d Cir. 1990) (finding that a federal

inmate’s Section 2241 petition is actionable where the inmate attacks the term of their custody

by challenging the way the BOP is computing their federal sentence).

B. Exhaustion of Administrative Remedies Under Section 2241

Although Section 2241 does not contain an explicit statutory exhaustion requirement, the

Third Circuit Court of Appeals has consistently required a federal inmate to exhaust their

administrative remedies before filing a Section 2241 petition. See Moscato v. Fed. Bureau of

Prisons, 98 F.3d 757, 760 (3d Cir. 1996) (“Federal prisoners are ordinarily required to exhaust

their administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241.”

(citations omitted)). Exhaustion is required “for three reasons: (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.” See id. at

761–62 (citations omitted)). Exhaustion is not required when it would not promote these goals.

See Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981) (“The exhaustion doctrine will not

be applied . . . when none of the basic goals (of the doctrine) would be served.” (citation and

internal quotation marks omitted)). “For example, 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 the administrative procedure is clearly shown to be inadequate to

prevent irreparable harm.’” Brown v. Warden Canaan USP, 763 F. App’x 296, 297 (3d Cir.

2019) (unpublished) (quoting Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988)).

C. The Federal Bureau of Prisons’ Administrative Remedy Program5

The Federal Bureau of Prisons (“BOP”) has a multi-step administrative remedy program

allowing an inmate “to seek formal review of an issue relating to any aspect of [their]

confinement.” See 28 C.F.R. § 542.10(a). First, an inmate should attempt informal resolution of

the issue with the appropriate staff member. See id. § 542.13(b). If informal resolution is

unsuccessful, the inmate may submit a formal written grievance, using the BP-9 form, to the

warden within twenty (20) calendar days “following the date on which the basis for the Request

occurred.” See id. § 542.14(a). The warden is to respond to the request within twenty (20)

calendar days. See id. § 542.18. An inmate dissatisfied with the warden’s response may appeal,

using the BP-10 form, “to the appropriate Regional Director within 20 calendar days of the date

the warden signed the response.” See id. § 542.15(a). Finally, an inmate may appeal from the

Regional Director’s response, using the BP-11 form, to the BOP’s General Counsel “within 30

calendar days of the date the Regional Director signed the response.” See id. The General

Counsel’s response to this appeal is due within twenty (20) calendar days; however, the time for

a response may be extended by twenty (20) days. See id. § 542.18.

5 The Court takes judicial notice of the BOP’s Administrative Remedy Program, which is

available on the BOP’s website at https://www.bop.gov/policy/progstat/1330_018.pdf. See, e.g.,

Baptiste v. Morris, No. 18-cv-01484, 2020 WL 2745739, at *2 n.5 (M.D. Pa. May 27, 2020)

(taking judicial notice of BOP’s Administrative Remedy Program).

III. DISCUSSION

A. The Parties’ Arguments

Houston claims that he is entitled to have the BOP credit him for spending twenty-five

months (from October 2020 until November 2022) in federal pretrial confinement. See (Doc.

Nos. 1 at 6; 2 at 1). He asserts that “[r]elevant” to his petition “is the fact that on or about July

2021[,] the Miss[issippi] Legisters [sic] passed House Bill 2795,” which “gave retroactive

applicability to Miss[issippi] State inmates whom [sic] were serving state sentences for violent

crimes.” See (Doc. No. 2 at 1). Houston claims that this legislation caused his Mississippi state

sentence to be “updated and recalculated to reflect” a fifty percent cut, meaning that his

aggregate twenty-one-year Mississippi sentence was satisfied even before he was transferred

from the custody of the MDOC to the USMS in October 2020. See (id. at 1–2). He also claims

that the twenty-five months he spent in USMS pretrial custody has yet to be applied to any

sentence, and he therefore seeks an order directing the BOP to apply twenty-five months of

pretrial time credit to his current federal sentence. See (id.).

In his response in opposition to Houston’s habeas petition, Respondent argues that the

Court should dismiss the petition because Houston failed to exhaust the BOP’s administrative

remedy procedures before filing his habeas petition insofar as he never filed any administrative

remedy relating to his claim for twenty-five months of time credit. See (Doc. No. 13 at 7–9); see

also (Doc. No. 13-1 at 6, 77–82). Alternatively, Respondent contends that the Court should deny

the petition because the BOP properly calculated Houston’s federal sentence by commencing it

on the date he was first taken into federal custody following his sentencing, i.e., February 1,

2023, and he is not entitled to any credit for time he spent in the custody of the USMS pursuant

to a writ of habeas corpus ad prosequendum. See (id. at 10–14).

B. Analysis

The Court agrees with Respondent that Houston failed to exhaust his administrative

remedies before filing his habeas petition and, as such, will dismiss his petition. Houston

concedes that he failed to exhaust his administrative remedies but claims he did not have to do so

because his “trial counsel and/or the court never even mentioned the 25 months during

sentencing. Therefore, it is not the BOP’s fault[,] and it is [sic] no way possible that the BOP

could apply said time credit without a court first acknowledging [the] 25 months . . . .” See

(Doc. No. 2 at 2).

Houston is mistaken about the BOP’s role in addressing time credit or sentencing-

calculation issues:

While [the petitioner] is correct that the BOP must heed the sentencing court’s

orders, the type of claim he is raising (alleged improper application of prior jail

credit) is the precise type of claim that must be presented to BOP officials before

seeking habeas relief in federal court. Such nuanced and fact-specific sentencing

questions are well within the purview of the BOP, which is best situated to address

(and potentially correct) these issues in the first instance.

See Hamrick v. Warden of FCI-Allenwood Low, No. 23-cv-00567, 2023 WL 7413330, at *1

(M.D. Pa. Nov. 9, 2023); see also Goodman v. Grondolsky, 427 F. App’x 81, 82 (3d Cir. 2011)

(unpublished) (explaining that the “authority to calculate a federal sentence and provide credit

for time served . . . [belongs] to the Attorney General, who acts through the BOP” (citing United

States v. Wilson, 503 U.S. 329, 333–35 (1992))). Furthermore, Houston’s “failure to exhaust his

sentencing-calculation claim deprives this Court of a properly developed record for review.” See

Hamrick, 2023 WL 7413330, at *1 (citing Donnelly v. Fed. Bureau of Prisons, No. 10-cv-03105,

2012 WL 2357511, at *4–5 (D. Minn. May 30, 2012), report and recommendation adopted, 2012

WL 2357490 (D. Minn. June 20, 2012)). Accordingly, the Court will dismiss Houston’s

sentencing-calculation claim due to his failure to exhaust administrative remedies.

The Court notes that even the Court addressed Houston’s claim on its merits, it would

deny the claim.6 “In calculating a federal sentence, the BOP first determines when the sentence

commenced and then determines whether the prisoner is entitled to any credits toward his

sentence.” Goodman, 427 F. App’x at 82 (citing 18 U.S.C. § 3585). A federal sentence

“commences when the defendant is received by the Attorney General for service of [their]

federal sentence.” See Rashid v. Quintana, 372 F. App’x 260, 262–63 (3d Cir. 2010)

(unpublished) (citing 18 U.S.C. § 3585(a)). “As a result, a federal sentence cannot begin to run

earlier than on the date on which it is imposed.” Id.; see also Taylor v. Holt, 309 F. App’x 591,

592–93 (3d Cir. 2009) (unpublished). Stated differently, “the earliest possible date a federal

sentence may commence is the date it was imposed.” See Pitts v. Spaulding, No. 15-cv-00644,

2015 WL 8482041, at *4 (M.D. Pa. Dec. 10, 2015) (internal quotation marks omitted).

6 As Respondent point out, this Court would lack subject-matter jurisdiction to determine

whether Houston was over-incarcerated in the Mississippi Department of Corrections. See (Doc.

No. 13 at 14 n.3). The Court nevertheless notes that Houston’s assertion that he received a

benefit of “cutting” fifty percent from his sentence under Mississippi’s Parole Eligibility Act

(“MPEA”), which was codified at Miss. Code § 47-7-3, and took effect on July 1, 2021, is

questionable.

Although the MPEA’s enactment undoubtedly provided new avenues for parole to previously

ineligible Mississippi state inmates, it specifically excludes individuals like Houston, who were

convicted of robbery with a deadly weapon (as defined in Miss. Code § 97-3-79), see (Doc. No.

13-1 at 13 (indicating that Houston was convicted for violating Section 97-3-79)), from receiving

eligibility for parole “only after having served fifty percent (50%) or twenty (20) years,

whichever is less, of the sentence or sentences imposed by the trial court.” See Miss. Code § 47-

7-3(h)(i). Instead, Houston would have been “eligible for parole only having served sixty (60%)

or twenty-five (25) years, whichever is less, of the sentence or sentences imposed by the trial

court.” See id. Moreover, and most importantly, the MPEA does not affect the length of a

Mississippi prisoner’s original sentence; rather, it merely renders them eligible for parole after a

certain period of incarceration. See id. In other words, Houston would have potentially

benefitted from the MPEA by becoming eligible for parole after serving sixty percent of his

twenty-one-year aggregate sentence; however, it did not “cut” into the total term of his

incarceration. And it appears that Mississippi parole officials determined that Houston was not

suitable for parole insofar as he ultimately served the entirety of his twenty-one-year aggregate

sentence. See (Doc. No. 13-1 at 62).

With those principles in mind, the BOP could not commence Houston’s federal sentence

at any point earlier than its date of imposition on October 5, 2022. See Rashid, 372 F. App’x at

262; see also Proctor v. Finley, No. 19-cv-00630, 2020 WL 618621, at *3 (M.D. Pa. Feb. 10,

2020) (“A federal sentence cannot commence earlier than the date on which it was imposed.”

(citing Rashid, 372 F. App’x at 262)). However, at that point, Houston had not completed his

Mississippi sentence. As such, the USMS returned him to Mississippi authorities so he could

serve out the remainder of his Mississippi state sentence and lodged a detainer for when the

MDOC ultimately released him. Therefore, the BOP could not commence Houston’s sentence

until the USMS arrested him on February 1, 2023.

Moreover, a federal sentence does not begin to run when a federal defendant such as

Houston is produced from state custody pursuant to a federal writ of habeas corpus from non-

federal custody because, in such a situation, the state authorities retain primary custody over the

prisoner. See Holloman v. Warden Fairton FCI, 635 F. App’x 12, 14 (3d Cir. 2015)

(unpublished) (“The production of a defendant pursuant to a writ of habeas corpus ad

prosequendum does not affect the jurisdiction of the sovereign with primary custody over a

defendant.”); Taccetta v. Federal Bureau of Prisons, 606 F. App’x 661, 663 (3d Cir. 2015)

(unpublished) (finding that under the primary custody doctrine, the first sovereign to arrest the

defendant is entitled to have the defendant serve that sovereign’s sentence before one imposed by

another sovereign). The BOP could not apply the months Houston spent in pretrial custody with

the USMS to the term of his federal sentence because Mississippi retained primary custody over

him until he completed his sentence there. Houston also could not receive credit for time served

if it was credited towards another sentence, see 18 U.S.C. § 3585(b), and Houston’s time spent in

federal pretrial custody was credited towards his Mississippi sentence. Accordingly, even if the

Court addressed the merits of Houston’s sentencing-calculation claim, it would deny the claim as

meritless because it appears that the BOP properly calculated his federal sentence.

IV. CONCLUSION

For the reasons stated above, the Court will dismiss Houston’s Section 2241 habeas

petition and direct the Clerk of Court to close this case.

s/ Yvette Kane

Yvette Kane, District Judge

United States District Court

Middle District of Pennsylvania