United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of the Report and
Recommendation [Doc. No. 19] issued by United States
Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C. §
636(b)(1)(B) and (C). Judge Purcell recommends that the
Amended Petition for Writ of Habeas Corpus Under 28 U.S.C.
§ 2241 be either dismissed for failure to exhaust
administrative remedies or denied because Petitioner is not
entitled to the relief he seeks. Petitioner has filed a
timely written objection [Doc. No. 20]. Thus, the Court must
make a de novo determination of portions of the
Report to which a specific objection is made, and may accept,
modify, or reject the recommended decision in whole or in
part. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
a federal prisoner who appears pro se, seeks habeas
relief under § 2241 regarding the administration by
Bureau of Prisons (“BOP”) of two concurrent
federal prison sentences. Specifically, Petitioner seeks a
determination that he has fully served and discharged an
18-month federal prison sentence imposed March 3, 2017, and
amended April 3, 2017 (No. 5:17-CR-008-01-C in the Northern
District of Texas), and that he is currently serving a
concurrent 96-month federal sentence imposed February 24,
2017, in a separate case (No. 5:16-CR-061-01-C in the
Northern District of Texas). The determination would not
result in Petitioner's release, but it could affect his
ability to benefit from certain BOP programs, such as the
early release program available to inmates who complete the
Residential Drug Abuse Program or RDAP. In the Report, Judge
Purcell finds that the common law requirement to exhaust
administrative remedies applies and that Respondent's
Motion to Dismiss [Doc. No. 13] should be granted.
Alternatively, Judge Purcell finds that the relief Petitioner
seeks (a determination that he has discharged the 18-month
sentence) is not available because federal law requires the
aggregation for administrative purposes of multiple terms of
imprisonment that are ordered to run concurrently or
consecutively. See 18 U.S.C. § 3584(c).
objects only to the latter finding. Regarding exhaustion,
Petitioner expressly admits - as he did when opposing
Respondent's Motion to Dismiss - that he has not
exhausted administrative remedies. See Obj. at 1-2
(repeating almost verbatim his Resp. Br. [Doc. No. 16] at
1-3). Liberally construing Petitioner's arguments, he
asserts that exhaustion should not be required because he is
not seeking the traditional habeas remedy of speedier release
from confinement; in fact, he only filed a § 2241
petition after being directed to do so by the presiding
judge. Instead, Petitioner emphasizes that he
seeks only a judicial resolution of the question of whether
BOP is correctly administering his sentences by applying 18
U.S.C. § 3584(c) to aggregate them and treating his
18-month sentence as “current, ” even though it
has been fully served; BOP's alleged misapplication of
the statute causes the offenses of conviction in
Petitioner's earlier case (one of which involved a
firearm) to affect his eligibility for certain programs and
possible benefits that are available to federal inmates
without such “current” convictions. See
Obj. at 2.
careful review of Petitioner's objection, independent
examination of the case record, and de novo
consideration of the issues, the Court concurs in Judge
Purcell's administrative exhaustion analysis. The Court
finds that the relief Petitioner seeks - judicial resolution
of a challenge to BOP's administration of his concurrent
federal sentences - is available, if at all, under §
2241. “A petition under 2 8 U.S. C. § 2241 attacks
the execution of a sentence rather than its validity and must
be filed in the district where the prisoner is
confined.” Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996); see Brace v. United States, 634
F.3d 1167, 1169 (10th Cir. 2011). A § 2241 petition is a
proper means to challenge BOP's administration of
aggregate sentences. See, e.g., Manni
v. English, 727 Fed.Appx. 530, 532 (10th Cir. 2018)
(unpublished); Deutsch v. Gallegos, 141 Fed.Appx.
745, 746-47 (10th Cir. 2005) (unpublished).
Court further finds that because it plainly appears, and in
fact Petitioner fully admits, he has not exhausted
administrative remedies, the Petition should be dismissed.
“The exhaustion of available administrative remedies is
a prerequisite for § 2241 habeas relief, although . . .
the statute itself does not expressly contain such a
requirement.” Garza v. Davis, 596 F.3d 1198,
1203 (10th Cir. 2010). Although there may be narrow
exceptions to the exhaustion requirement, none are implicated
here. See id. at 1203-04. Therefore, the proper
disposition of this matter is the “dismissal of
Petitioner's § 2241 habeas petition without
prejudice.” See Brown v. Wands, 463 Fed.Appx.
806, 808 (10th Cir. 2012) (unpublished). Accordingly, the
Court does not reach the merits of Petitioner's claim.
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 19] is ADOPTED in part, as set forth herein.
Respondent's Motion to Dismiss [Doc. No. 13] is GRANTED
in part, and the Amended Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 [Doc. No. 5] is DISMISSED
without prejudice for lack of administrative exhaustion.
Judgment shall be entered accordingly.
IS SO ORDERED.
 Although Petitioner emphasizes that
the two criminal cases are unrelated, the 18-month sentence
was imposed upon revocation of a term of supervised release
that Petitioner was serving in an earlier case (No.
2:03-CR-087-J) for violating the condition that he not commit
another crime, which he did by pleading guilty to the offense
charged in No. 5:16-CR-061-C. See No. 5:17-cr-008-C,
Mot. Revoke Supervised Release, 3/3/17 Order (granting
 Petitioner initiated this action by
filing a “Petition for Judicial Relief” in the
sentencing court, which opened a civil case as Venzor v.
Bureau of Prisons, No. 5:19-CV-0049-C (N.D. Tex.). The
presiding judge construed the filing as a § 2241
petition and directed Petitioner to pay the $5 filing fee and
to file an amended petition using a form provided by the
clerk. After Petitioner complied, the action was transferred
to this judicial district, where Petitioner is
 Similarly, in opposition to
Respondent's Motion, Petitioner phrased his claim to be
“that the BOP record does not accurately reflect the
judge's sentencing order, therefore denying Petitioner
the opportunity to seek relief whether through the
RDAP program or any future programs or laws including the
First Step Act.” See Resp. Br. at 5 (emphasis
in original). He stated that he seeks a judicial resolution
of the issue of “whether statute 18 U.S.C. §
3584(c) for aggregating multiple sentences, overrides a
federal judge's sentencing order by extending a much
lesser sentence to the full term of the greater
sentence.” Id. at 6. “Petitioner argues
that the BOP's broad and liberal use/interpretation of
statute 18 U.S.C. § 3584(c) is misapplied, ” and
“that two unrelated sentences with greatly differing
lengths should be aggregated only until the lesser sentence
is fully served.” Id.
 Unpublished opinions are cited in this
Order pursuant to Fed. R. App. P. 32.1(a) and 10th Cir. ...