The opinion of the court was delivered by: (Judge Munley)
Before the court is Petitioner Freddy Aguilera Quinjano's objection (Doc. 10) to Magistrate Judge Thomas M. Blewitt's recommendation (Doc. 9) that the petition for a writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2241 be denied. Having been briefed, the matter is ripe for disposition.
Petitioner Freddy Aguilera Quinjano ("Petitioner") is a prisoner at the Schuylkill Federal Correctional Institution in Minersville, Pennsylvania ("FCI Schuylkill"). (Pet. (Doc. 1)).Petitioner is currently serving a life sentence imposed by this court, the Honorable Judge Malcolm Muir, on August 11, 1997, for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and aiding and abetting. (Sentence Monitoring Computation Data for Case No. 4:96cr201-002 (Doc. 7-1 at 7-21)); 21 U.S.C. § 846; 18 U.S.C. § 2.
Petitioner is also serving three terms of imprisonment of various lengths, for Case Numbers 87cr710, 87cr255, and 85cr98-13-G. On July 15, 1988 Petitioner was sentenced by the United States District Court for the Southern District of Florida to a term of thirty years imprisonment with no parole for conspiracy and possession with intent to distribute at least five kilograms of cocaine. (Sentence Monitoring Computation Data for Case No. 87cr710 (Doc. 7-1 at 7-21)); 21 U.S.C. §§ 846, 841(A)(1), 841(B)(1)(A).
On August 16, 1989 Petitioner was sentenced by the United States District Court for the Northern District of New York to a term of thirty years imprisonment with no parole for continuing criminal enterprise, unlawful possession, manufacture, and possession with intent to distribute cocaine. (Sentence Monitoring Computation Data for Case No. 87cr255 (Doc. 7-1 at 7-21)); 21 U.S.C. §§ 848, 841(A). This thirty year term was imposed consecutive to Petitioner's term under Case Number 87cr710, above.*fn1
On June 25, 1990 Petitioner was sentenced by the United States District Court for the Middle District of North Carolina to a term of fifteen years imprisonment for conspiracy to manufacture and possess with intent to distribute cocaine hydrochloride. (Sentence Monitoring Computation Data for Case No. 85cr98-13-G (Doc. 7-1 at 7-21)); 21 U.S.C. §§ 846, 841(A)(1).This fifteen year term was imposed concurrent with Petitioner's term under Case Number 87cr255.
Petitioner's Sentence Monitoring Computation Data indicates that Petitioner's total term in effect for Case Numbers 87cr710, 87cr255, and 85cr98-13-G is sixty years. (Sentence Monitoring Computation Data (Doc. 7-1 at 7-21)). Petitioner is not eligible for parole or a parole hearing under this computation. (Id.) These determinations underlie the petition for a writ of habeas corpus.
By way of letter, the U.S. Parole Commission, responding to Petitioner's letter of October 15, 2010, explains that Petitioner was "sentenced to a non-parolable term" and therefore is ineligible for parole consideration. (Pet'r Ex. E (Doc. 1-2 at 9)). The letter states that "[t]he U.S. Parole Commission has no jurisdiction over inmates serving Federal or D.C. Code "new law" non-[parolable]sentences or state sentences." (Id.)BOP records indicate that Petitioner has not filed an administrative remedy with respect to the computation of his sentence. (Joseph McCluskey Decl., Ex. A., ¶ 8).
On February 25, 2011, the Petitioner filed a petition for a writ of habeas corpus. (Doc. 1). On March 2, 2011, the government was ordered to respond. (Doc. 4). The government responded to the petition and on April 7, 2011 the magistrate judge issued a report and recommendation (Doc. 9). The magistrate judge recommends that the petition be dismissed for the petitioner's failure to exhaust his administrative remedies. (Id.)On April 19, 2011 the petitioner filed his objections to the report and recommendation. (Doc. 10). The government responded on May 6, 2011, bringing the case to its present posture. (Doc. 11).
Because this case is brought under 28 U.S.C. § 2241 ("Section 2241"), the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). Section 2241 "confers jurisdiction on district courts to issue writs of habeas corpus in response to a petition from a state or federal prisoner who 'is in custody in violation of the Constitution or laws or treaties of the United States.'" Coady v. Vaughn, 251 F.3d 480, 484 (3d Cir. 2001). The federal habeas statute also requires that the petitioner be in custody "under the conviction or sentence under attack at the time his petition is filed." Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989)).
Section 2241, unlike other federal habeas statutes, "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." Coady, 251 F.3d at 485. (quoting 28 U.S.C. §§ 2241(a) and (c)(3)). Although the Third Circuit Court of Appeals has yet to clearly define the meaning of "execution" in this context, it has cited approvingly holdings from other circuits finding that a Section 2241 motion properly challenges "'such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type ...