Letterman

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BRIAN L. LETTERMAN, )

)

Petitioner, )

)

vs. ) Case No. 3:22-cv-2817-DWD

)

THOMAS LILLARD, Warden, FCI )

Greenville, )

)

Respondent. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Before the Court is Petitioner’s Amended Petition for a Writ of Habeas Corpus

under 28 U.S.C. § 2241. (Doc. 8). Respondent filed a Response in Opposition to that

Amended Petition. (Doc. 16). As explained below, the Amended Petition is DENIED.

I. BACKGROUND

Petitioner, while an inmate at FCI Greenville, filed his Amended Petition (Doc. 8),

noting he was sentenced in the United States District Court for the Western District of

Missouri on April 26, 2022. (Doc. 8, pg. 1).1 Petitioner states, on or about May 22, 2019, he

1The Court observes, when Petitioner filed this action, he was an inmate at FCI Greenville. Since

the Court has received no Notice of Change of Address from Petitioner, as required by the advisement at

Doc. 5, the docket continues to reflect that Petitioner is located at FCI Greenville. However, the Bureau of

Prisons (“BOP”) website indicates Petitioner is an inmate at Atwater USP. The issue is inconsequential,

though, since “[w]hether the court has jurisdiction over the custodian is determined at the time the petition

is filed.” Ross v. Mebane, 536 F.2d 1199, 1201 (7th Cir. 1976) (citing Smith v. Campbell, 450 F.2d 829, 831-832

(9th Cir. 1971); Harris v. Ciccone, 417 F.2d 479, 480 n. 1 (8th Cir. 1969), certiorari denied, 397 U.S. 1078

(1970); Bishop v. Med. Superintendent of Ionia State Hosp., 377 F.2d 467, 468 (6th Cir. 1967)); see also Roeding v.

Warden of FCI Greenville, No. 19-cv-959, 2021 WL 3631150, *1 (July 13, 2021) (according with this principle

and further stating: “[T]he Court retains jurisdiction over this matter because jurisdiction was proper in

this District when Petitioner filed his Petition.”). Accordingly, the Court retains jurisdiction in this case.

was arrested for the crime related to the underlying federal case, then “loaned” to the

State of Missouri to resolve an outstanding parole violation. (Doc. 8, pg. 6). According to

Petitioner, on September 1, 2022, the BOP “failed to accredit 36 months of qualified non-

federal presentence time…toward service of [his] federal sentence—time spent in

Missouri state custody on [the] related…state sentence/parole violation,” as was

intended by the sentencing court. (Doc. 8, pgs. 2, 6, 10-12). Petitioner indicates he

initiated, without success, three administrative appeals of this decision. (Doc. 8, pgs. 2-3).

The Court entered an Order for the Service of Process on Respondent, finding the

Amended Petition survived a preliminary review. (Doc. 9). Respondent filed a Response

in Opposition to the Amended Petition, arguing: (1) Petitioner did not exhaust his

administrative remedies before filing this action; and (2) in any event, Petitioner’s

sentence has been properly calculated. (Doc. 16, generally). Petitioner did not file a Reply

in Support of the Amended Petition. (Doc. 9). The Amended Petition is resolved below.

II. ANALYSIS

Upon review of the parties’ submissions, the Court concludes it must agree with

both of Respondent’s arguments. First, Respondent is correct that Petitioner did not fully

exhaust his administrative remedies. Petitioner clearly attempted, at least initially, to

appeal the denial of his request for relief. (Doc. 8, pgs. 2-3). However, his appeals were

unsuccessful due to procedural deficiencies. (Doc. 16-1, pgs. 3-4) (Declaration of Ms.

Danielle Matz, who is employed by the BOP as the Administrative Remedy Clerk at FCI

Greenville). Rather than continue trying, he decided not to perfect a full administrative

appeal. See 28 C.F.R. § 542.15(a) (“Appeal to the General Counsel is the final

administrative appeal.”); (Doc. 16-1, pg. 4) (“Nothing further has been received from

Letterman regarding this issue. Accordingly, the Office of General Counsel has not

received a properly completed appeal with respect to this issue.”) (internal citation

omitted). It is also notable, again, that Petitioner did not file a Reply in Support of his

Amended Petition, in which he could have rebutted this first argument. These

circumstances, by themselves, would warrant a denial of the Amended Petition along

with a dismissal of this action without prejudice. See Richmond v. Scibana, 387 F.3d 602,

604 (7th Cir. 2004) (“A common-law exhaustion rule applies to § 2241 actions.”);

accord Mays v. Dart, 453 F. Supp. 3d 1074, 1088 (N.D. Ill. 2020).

In any event, though, the Court agrees with Respondent’s second argument, which

pertains to the merits of the Amended Petition. After Petitioner was arrested by the

Springfield, Missouri Police Department on May 22, 2019, the State of Missouri revoked

his parole. U.S. v. Letterman, No. 19-cr-3153-3, Doc. 125 (W.D. Mo. April 26, 2022); (Doc.

16-2, pgs. 2, 9-10) (Declaration of Ms. Juannetta Hayes, who is employed by the BOP as a

Management Analyst at the Designation and Sentence Computation Center). Petitioner

was then reincarcerated in the Missouri Department of Corrections. (Doc. 16-2, pgs. 2, 9-

10). It was not until November 6, 2019, that Petitioner was federally indicted in the

Western District of Missouri. Letterman, No. 19-cr-3153-3, Doc. 1 (W.D. Mo. Nov. 6, 2019);

(Doc. 16-2, pgs. 2, 13-17). That court issued a writ of habeas corpus ad prosequendum on

December 3, 2019, which authorized the United States Marshals Service to take temporary

custody of Petitioner to facilitate his Initial Appearance and Arraignment in federal court.

Letterman, No. 19-cr-3153-3, Doc. 19 (W.D. Mo. Dec. 3, 2019); (Doc. 16-2, pgs. 2, 25, 27-29).

Clearly, though, as a matter of fact and law, Petitioner remained in the primary

custody of the State of Missouri at that time. See Jake v. Herschberger, 173 F.3d 1059, 1061

n. 1 (7th Cir. 1999) (“Because the receiving sovereign merely obtains limited jurisdiction

over the ‘borrowed’ prisoner [pursuant to a writ of habeas corpus ad prosequendum], the

prisoner is still under the jurisdiction of the sending sovereign, and is considered to be in

the custody of the sending sovereign not the receiving sovereign.”); Letterman, No. 19-cr-

3153-3, Doc. 1-3 (W.D. Mo. Nov. 6, 2019); (Doc. 16-2, pgs. 2, 5, 9-10, 22, 51). And, in light

of the fact that Petitioner was serving his sentence in the State of Missouri before his

federal sentence on April 26, 2022, which was to run concurrent to the undischarged term

of Petitioner’s sentence in the State of Missouri, the BOP is expressly prohibited from

crediting the 36 months at issue toward his federal sentence. See 18 U.S.C. § 3585(b) (“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 (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.”) (Emphasis

added); Letterman, No. 19-cr-3153-3, Docs. 126 & 127 (W.D. Mo. April 26 and 27, 2022);

(Doc. 16-2, pgs. 3, 31-36, 41-43, 50-51). Petitioner was returned to the custody of the

Missouri Department of Corrections on May 5, 2022, with the Judgment from the Western

District of Missouri lodged as a detainer. (Doc. 16-2, pgs. 3, 27). He was taken into the

exclusive and primary custody of the BOP on June 24, 2022. (Doc. 16-2, pgs. 3, 38).

Under these circumstances, the Court concludes the BOP was correct to compute

Petitioner’s federal sentence from April 26, 2022, when it was laid down by the Western

District of Missouri, and to designate the Missouri Department of Corrections as the

facility for initial service of the federal sentence. See 18 U.S.C. § 3585(b); see also 18 U.S.C.

§ 3621(b) (“The Bureau may designate any available penal or correctional facility that

meets minimum standards of health and habitability established by the [BOP], whether

maintained by the Federal Government or otherwise and whether within or without the

judicial district in which the person was convicted, that the Bureau determines to be

appropriate and suitable.”) (Emphasis added); Taylor v. Lariva, 638 Fed. App’x 539, 541

(7th Cir. 2016) (“Under § 3621, the BOP may designate nunc pro tunc a state prison that

once housed an inmate as the place of confinement for the inmate’s federal sentence,

effectively allowing the state and federal sentences to run concurrently. And the BOP has

‘wide discretion’ over that designation.”) (internal citations omitted); (Doc. 16-2, pgs. 42-

43) (quoting BOP Program Statement 5880.28, Sentence Computation Manual (CCCA of

1984), for the following proposition: “Upon receipt of the judgment and commitment

from the U.S. Marshals’ Service that orders the federal sentence to be served concurrently

with the non-federal sentence, the RISA shall, in accordance with 18 U.S.C. § 3621(b),

designate the non-federal facility as the place to serve the federal sentence and complete

the other procedures required by the Program Statement on Designation of State

Institution for Service of Federal Sentence, for executing this type of concurrent

sentence.”). Based on these same authorities, it is inconsequential that Petitioner was

taken into primary federal custody on June 24, 2022. To put it even more simply,

Respondent is correct that it was impossible for Petitioner to begin his federal sentence,

and for that federal sentence to run concurrent with a state sentence, before the federal

sentence was imposed. See Matlock v. Sproul, No. 22-cv-2999, 2023 WL 2810286, *2 (7th

Cir. April 6, 2023) (“A sentence does not begin before it is imposed, and we are aware of

no statute authorizing a judge to set retroactive starting dates.”); see also Manuel v. Terris,

803 F.3d 826, 828 (7th Cir. 2015) (“[T]he state having already given him that credit against

his state sentence, the [BOP] was forbidden by 18 U.S.C. § 3585(b) to credit that period

against his federal sentence as well.”); (Docs. 16, pgs. 8-10; 16-2, pg. 4).

III. CONCLUSION

Petitioner’s Amended Petition is DENIED. This action is DISMISSED with

prejudice. The Clerk of the Court is DIRECTED to enter judgment and to close the case.

SO ORDERED.

Dated: March 24, 2026 s/ David W. Dugan

______________________________

DAVID W. DUGAN

United States District Judge