United States District Court, D. South Dakota
Lawrence L. Piersol, United States District Judge.
defendant, Dana Boswell ("Boswell"), has filed two
letters asking the Court to assist him with getting credit
for time spent in custody on a California state court
sentence prior to commencement of the federal sentence which
was imposed by this Court on July 13, 1999. (Docs. 1255,
1256.) The Court will construe Boswell's letters as
motions. Boswell includes a copy of a letter to him from the
Bureau of Prisons (BOP) dated October 19, 2017, indicating
that because the state sentence was imposed before the
federal sentence was imposed, and also due to the fact that
the federal judgment does not state whether Boswell's
federal sentence is to be served concurrently or
consecutively to his undischarged state sentence, 18 U.S.C.
§ 3584 requires his federal sentence to be served
consecutively. (Doc. 1256.)
issue of concurrent or consecutive sentences was not raised
to the Court at the sentencing, nor was that issue raised in
the Presentence Report. Had it been raised, the Court would
have ordered that the federal sentence be served concurrently
to Boswell's undischarged state sentence.
is aware, based on a prior Order of this Court (doc. 1243),
that after sentencing this Court does not have authority to
determine credit for time served. In United States v.
Wilson, 503 U.S. 329 (1992), the Supreme Court held that
the determination of credit for time served under 18 U.S.C.
§ 3585(b) is a matter vested exclusively in the BOP, not
the sentencing court. Id. at 334-35. In United
States v. Pardue, 363 F.3d 695 (8th Cir. 2004), the
defendant Pardue argued that the district court had erred in
failing to accredit him with time served under 18 U.S.C.
§ 3585(b). Id. at 699. The Eighth Circuit
refused to entertain this argument, noting that the
determination of credit for time served under § 3585(b)
is a matter vested exclusively in the Bureau of Prisons.
Id. "A district court cannot apply section
3585(b) when sentencing, because computing 'the credit
must occur after the defendant begins his
sentence.'" Id. (quoting Wilson,
503 U.S. at 333).
Boswell is dissatisfied with the BOP's decisions
regarding credit for time served, he may file a petition for
relief in the district where he is confined under 28 U.S.C.
§ 2241 after exhausting his administrative remedies with
the BOP. See United States v. Tindall, 455 F.3d 885,
888 (8th Cir. 2006) (federal prisoner may petition under 28
U.S .C. § 2241 after exhausting administrative remedies
within the BOP if he objects to the BOP's calculation of
credits to his sentence).
cites to Setser v. United States, 566 U.S. 231
(2012), where the Supreme Court held that a district court
has discretion to make a federal sentence run concurrently or
consecutively to a yet-to-be-imposed state sentence, which is
not the issue here because Boswell's state sentence had
already been imposed prior to imposition of his federal
sentence. In any event, this Court is now aware that it could
have, but did not, order Boswell's federal sentence to
run concurrently with his undischarged state sentence.
See 18 U.S.C. § 3584(a). To the extent Boswell
is seeking to have this Court amend the Judgment in his
criminal case to state that his federal sentence is to run
concurrently with his state sentence, that request should
have been brought by a petition filed pursuant to 28 U.S.C.
§ 2255, as it is an attack on the Judgment
itself. See Noble v. Fondren, 2009 WL
4723357 at *7 (D.Minn. Dec. 2, 2009); see also Watson v.
United States, 2006 WL 1428295 at *3-4 (D.Minn. May 23,
2006) (concluding that the court was barred by 28 U.S.C.
§ 2255 from entertaining petitioner's habeas
petition under § 2241, which asserted that the
sentencing court intended to apply § 5G1.3 by
recommending credit for time served, as an attack on the
sentence applied by the sentencing court).
2016, Boswell attempted to file a successive § 2255
motion based on other grounds, see CIV 16-4085, and
he is aware that the Antiterrorism and Effective Death
Penalty Act (AEDPA) curtailed the filing of second and
successive § 2255 motions. Specifically, the AEDPA
amendment to § 2244 provides, in pertinent part:
(a) No circuit or district judge shall be required to
entertain an application for a writ of habeas corpus to
inquire into the detention of a person pursuant to a judgment
of a court of the United States if it appears that the
legality of such detention has been determined by a judge or
court of the United States on a prior application for a writ
of habeas corpus, except as provided in section 2255.
28 U.S.C. § 2244(a). The limited exception for second or
successive § 2255 motions states:
(h) A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court
of appeals to contain-
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
fact finder would have found the "movant guilty of the
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). A prisoner may not escape these
limitations on second or successive § 2255 motions by
purporting to invoke some other rule or procedure. See
United States v. Patton, 309 F.3d 1093, 1094 (8th Cir.
2002) (affirming decision which denied defendant's
petition under Rule 12(b)(2) of the Federal Rules of Criminal
Procedure because the Eighth Circuit has "consistently
held that inmates may not bypass the limitation on successive
habeas petitions" by attempting to invoke some other
has not obtained leave from the Eighth Circuit to file a
second or successive § 2255 motion in order to challenge
the Judgment in his criminal case. Thus, this Court has no
authority to consider Boswell's request to amend the
Judgment to state that his federal sentence should run
concurrently with his state sentence. Accordingly, IT IS