United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge.
the Court is Defendant/Petitioner Bryan Scott Freeman's
(“Defendant”) “Ex Parte Motion for a
Modification/Alternative Sentence.” (Doc. No. 41).
Defendant asks the Court to reduce his sentence to reflect
time he served while in State custody.
4, 2009, this Court sentenced Defendant to a term of
imprisonment of 120 months on Count 1 of the Indictment and
31 months on Count 2 of the Indictment, to be served
consecutively. (Doc. No. 35). The Court further ordered
Defendant's 151-month sentence “to be served
concurrently with any sentence imposed in Pushmataha County
District Court case number CF-2008-87.” (Doc. No. 35).
On June 9, 2009, all charges against Defendant in the
Pushmataha County District Court Case Number CF-2008-87 were
dismissed. Therefore, no sentence was imposed against
Defendant in that case. Defendant now argues he should
receive credit for certain time he served in State custody,
from the date of his federal Indictment (October 1, 2008) to
the date he was returned to federal custody (April 1, 2010).
Defendant complains that BOP has improperly denied him this
credit on his sentence.
Court cannot grant Defendant's requested relief, because
this Court lacks jurisdiction to modify Defendant's
sentence. “A district court does not have inherent
authority to modify a previously imposed sentence; it may do
so only pursuant to statutory authorization.”
United States v. Smartt, 129 F.3d 539, 540 (10th
Cir. 1997) (quotation omitted). Although Defendant does not
provide any authority under which the Court may reexamine his
sentence, Defendant's request is in the nature of a
request for writ of habeas corpus under 28 U.S.C. §
2241. See Bradshaw v. Story, 86 F.3d 164, 166 (10th
Cir. 1996) (“A petition under 28 U.S.C. § 2241
attacks the execution of a sentence rather than its validity
. . . .”) (citation omitted); Barden v.
Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990) (finding
petition actionable under § 2241 where federal prisoner
sought to gain credit for time served in state prison)
(citing cases). However, Defendant is not entitled to such
relief. A petition pursuant to § 2241 must be brought in
the district where the prisoner is confined.
Bradshaw, 86 F.3d at 166. Here, Defendant is
incarcerated at the Federal Correctional Institution in Yazoo
City, Mississippi, which is outside of this Court's
jurisdiction. Nor is Defendant eligible for modification of
his sentence under 18 U.S.C. § 3582(c). Defendant also
does not raise any possible grounds for reexamination of his
sentence pursuant to 28 U.S.C. § 2255. Accordingly, this
Court has no authority to modify the sentence imposed on June
the Court did have authority to modify Defendant's
sentence as requested, the Court would nonetheless deny the
motion on the merits. Defendant's Motion refers to 18
U.S.C. § 3585(b), which provides:
(b) Credit for prior custody.-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
(1) as a result of the offense for which the sentence was
(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.
18 U.S.C.A. § 3585. However, Defendant's time served
in State custody was as a result of a revocation filed in the
Pushmataha County District Court in two of Defendant's
other cases on October 1, 2008, the date of the federal
Indictment. See Pushmataha County Case Nos. CF-
2006-124 (Order of Revocation dated Oct. 1, 2008), CF-2006-49
(Order of Revocation dated Oct. 1, 2008). In each of those
cases, Defendant received a two-year sentence at the Oklahoma
Department of Corrections (“DOC”), such sentences
to run concurrently. All time served at DOC was credited to
the revocation sentence, which did not run concurrently with
Defendant's federal sentence. The Bureau of Prisons'
response to Defendant's Central Office Administrative
Remedy Appeal, which Defendant attaches to his Motion,
confirms as much:
Your federal sentence was ordered to run concurrently with
your Burglary charges in Case No. CF-2008-87; however, these
charges were dismissed. Your federal sentence was not ordered
to run concurrent with your Probation Violation in Case No.
CF-2006-49. The prior custody credit from October 1, 2008,
through April 1, 2010, has been applied to your Oklahoma
(Doc. No. 41, at 14 (Administrative Remedy No. 755161-A3
Response)). Under § 3585(b), Defendant is not entitled
to credit for time served that has been credited against
Defendant's “Ex Parte Motion for a