United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Movant's Motion to Vacate,
Set Aside or Correct Sentence [Doc. No. 1] pursuant to 28
U.S.C. § 2255 and filed on October 13, 2013. The United
States of America has responded to the motion [Doc. No. 3].
Movant has not filed any Reply to Response to Motion to
Vacate, Set Aside or Correct Sentence. For the reasons set
forth below, the motion will be denied.
November 28, 2012, Movant was sentenced to 48 months as a
result of his entry of a plea of guilty to one count of the
use of a communication facility to facilitate a drug
trafficking crime, in violation of 21 U.S.C. § 843(b).
No direct appeal was taken by Movant. There is but one issue
asserted by Movant in this §2255 Motion: That Movant
failed to receive jail time credit for a specific period of
FOR RELIEF UNDER 28 U.S.C. §2255
order to state a cognizable claim a federal prisoner may seek
relief on the ground that “the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack…” 28 U.S.C. §2255. Claims based on a
federal statute or rule, rather than on a specific
constitutional guarantee, may be raised “ on collateral
review only if the alleged error constituted a
‘fundamental defect which inherently results in a
complete miscarriage of justice.'” Reed v.
Farley, 512 U.S. 339, 354, S.Ct. 2291, 129 L.Ed.2d 277
(1994) (citations omitted).
speaking the issue of whether a defendant receives credit for
time “spent in state custody pending trial is an issue
“to be determined by the United States Attorney General
after the criminal defendant has begun to serve his sentence
rather than by a federal district court at the time of
sentencing.” United States v. Moore, 978 F.3d
109, 1030-31 (8th Cir. 1992). The Attorney General
has delegated the authority to grant credit for time served
to the Bureau of Prisons. Id at 1031. Under the view
of United States v. Pardue, 363 F.3d 695, 699
(8th Cir. 2004), the credit for time served is
within the purview of the Bureau of Prisons. There are
administrative procedures within the framework of the Bureau
of Prisons which allow for the review of the failure, by the
Bureau of Prisons, to credit the time served. Thus, if there
is still in existence a failure to credit jail time after
exhaustion of the administrative procedures, the specific
failure is subject to review by filing a habeas corpus
petition in the federal district court pursuant to 28 U.S.C.
§2241. Rogers v. United States, 180 F.3d 349,
358 (1st Cir. 1999). There is nothing in the
record and papers filed that suggests, implies, or directly
asserts that movant has utilized, or exhausted his
administrative remedies and might be entitled to proceed
under 28 U.S.C. §2241.
upon the foregoing analysis, Movant has failed to establish
he is entitled any relief and has failed to present any basis
upon which the Court may grant relief.
federal statute governing certificates of appealability
provides that “[a] certificate of appealability may
issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). A substantial showing of the denial
of a constitutional right requires that “issues are
debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further
proceedings.” Cox v. Norris, 133 F.3d 565, 569
(8th Cir. 1997). Based on the record, and the law as
discussed herein, the Court finds that Movant has not made a
substantial showing of the denial of a constitutional right.
IT IS HEREBY ORDERED that this matter is DENIED in all
FURTHER ORDERED that the Court will not issue a ...