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U.S. v. XAVIER

United States District Court, S.D. Illinois


June 1, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
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.

20050601

© 1992-2005 VersusLaw Inc.



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