United States v. Norman Wynn Leverette, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 3, 2018
• Docket: 17-15410
• Status: Unpublished

Opinion

Case: 17-15410 Date Filed: 05/03/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15410 Non-Argument Calendar ________________________

D.C. Docket No. 5:13-cr-00005-ACC-PRL-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORMAN WYNN LEVERETTE, JR., a.k.a. Norman Wynn Leverette,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(May 3, 2018)

Before TJOFLAT, NEWSOM and BLACK, Circuit Judges.

PER CURIAM: Case: 17-15410 Date Filed: 05/03/2018 Page: 2 of 4

Norman Leverette, a federal prisoner proceeding pro se, appeals the district

court’s denial of his post-judgment motion for credit for time-served. On appeal,

Leverette contends he is entitled to credit for time-served during the 318-day

period between April 15, 2013, and February 27, 2014, the date he received his

sentence in federal court. Leverette also asserts the Bureau of Prisons (BOP) is

violating his Eighth Amendment rights by refusing to award him the requested

credit. After review, we affirm. 1

Section 3585(b)(2) of Title 18 of the U.S. Code provides: “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 sentence commences . . . 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.” But it is the Attorney General through the BOP, not the

district court, that § 3585(b) empowers to compute sentence credit awards after

sentencing. United States v. Wilson, 503 U.S. 329, 333–34 (1992) (“We do not

accept Wilson’s argument that § 3585(b) authorizes a district court to award credit

at sentencing.”).

1 “We review de novo the district court’s interpretation of a statute.” See Rodriguez v. Lamer, 60 F.3d 745, 747 (11th Cir. 1995) (involving a 28 U.S.C. § 2241 petitioner’s claim under 18 U.S.C. § 3585(b) that he was entitled to credit for time-served for pretrial home confinement).

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A prisoner “is free to urge the [BOP] to credit his time served in state court

based on the District Court’s judgment that the federal sentence run concurrently

with the state sentence for the new [federal] charges.” Setser v. United States, 566

U.S. 231, 244 (2012). “If the [BOP] initially declines to do so, he may raise his

claim through the Bureau’s Administrative Remedy Program.” Id. (citing 28

C.F.R. § 542.10 et seq. (2011)). Under that program, an inmate may “seek formal

review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R.

§ 542.10(a). Typically, a prisoner must first request a remedy from the institution

where the prisoner is confined. See 28 C.F.R. §542.14. If the inmate is not

satisfied with the Warden’s response, the inmate may submit an appeal to the

appropriate Regional Director. 28 C.F.R. § 542.15(a). If the inmate is dissatisfied

with the Regional Director’s response, “[a]ppeal to the General Counsel [of the

BOP] is the final administrative appeal.” Id.

Only once a prisoner has been denied administrative relief can he seek relief

from a district court via a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. United States v. Nyhuis, 211 F.3d 1340, 1345 (11th Cir. 2000). “It is no

longer the law of this circuit that exhaustion of administrative remedies is a

jurisdictional requirement in a § 2241 proceeding.” Santiago-Lugo v. Warden, 785

F.3d 467, 474–75 (11th Cir. 2015). However, the “exhaustion requirement is still a

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requirement; it’s just not a jurisdictional one. What its non-jurisdictional nature

means is that a court need not inquire into exhaustion on its own.” Id. at 475.

Leverette has failed to demonstrate that he exhausted the administrative

remedies available to him through the BOP. Therefore, the district court did not

err in concluding it lacked the authority to grant Leverette’s request for credit for

time-served. Accordingly, we affirm.

AFFIRMED.