United States District Court, S.D. Illinois
June 1, 2005.
UNITED STATES OF AMERICA, Plaintiff,
FRANKLIN XAVIER, Defendant.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
Before the Court is a motion for an order to attribute jail
credits filed by Defendant Franklin Xavier in this closed
criminal case. (Doc. 56.) Xavier is currently an inmate at
Leavenworth Penitentiary in Kansas and is serving a 60 month
sentence for his conviction in the above-captioned case. (Doc.
45.) Xavier's present motion contests the Federal Bureau of
Prisons' (BOP) calculation of his sentence and specifically seeks
subtraction of the time he spent in jail awaiting trial from the
time he has left to serve. (Doc. 56.)
The Court DENIES Xavier's motion based on lack of
jurisdiction. (Doc. 56.) Claims regarding sentencing credits
constitute challenges to the execution rather than to the
validity of a sentence and must be construed as petitions for
writ of habeas corpus under 28 U.S.C. § 2241. See Clemente v.
Allen, 120 F.3d 709, 705 (7thp> Cir. 1997) (stating
"challenges to the computation of a sentence must be brought under 28 U.S.C. § 2241"). As a de facto § 2241
petition, Xavier's sentence computation issue must be raised in
the district court in the district where petitioner is confined
and his custodian is located. 28 U.S.C. § 2241(a); Samirah v.
O'Connell, 335 F.3d 545 (7thp> Cir. 2003) (stating "[i]f [a
petitioner] is to proceed under § 2241, he must name his
custodian as respondent and file the petition in a district court
that has jurisdiction over his custodian; otherwise, the district
court would lack jurisdiction"). Since Xavier is currently
confined at Leavenworth Penitentiary in Kansas, he must file a
proper § 2241 petition in that district.
IT IS SO ORDERED.
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