The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Petitioner Louis Cordero filed a pro se motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on August 9, 2012. (ECF 414). His Petition contended that he should be should have been credited by the Sentencing Court for time served on a state conviction that was "relevant conduct" to his federal conviction. The Government filed a Response on November 13, 2012, arguing the Court should dismiss the Petition due to lack of venue and due to an appellate waiver in Cordero's plea agreement, and should deny the Petition on the merits. (ECF 416). Petitioner filed a timely, pro se Reply (ECF 417). By Order of December 21, 2012, the Court appointed private counsel Walter S. Batty, Jr., Esquire, to represent Petitioner. (ECF 419). Mr. Batty informed the Court that due to scheduling conflicts, he would need additional time to provide proper representation to Petitioner and he filed a Motion for Extension of Time or for Leave to Withdraw. (ECF 21). The Court grants Mr. Batty's Motion for Leave to Withdraw. For the reasons set forth below, the Court concludes Cordero's Petition should be considered on the merits, despite the Government's arguments to the contrary, and that the Petition should be GRANTED.
II.Facts and Procedural History
Louis Cordero is currently confined in federal prison in Lexington, Kentucky. He was sentenced to a 144-month term of imprisonment by this Court on December 9, 2005, after pleading guilty to conspiracy to distribute crack cocaine and heroin. Cordero had been facing a mandatory life sentence but it was reduced due to his cooperation with the government. However, the Court chose not to credit Cordero with time served before March 6, 2003 -- the date he entered federal custody -- at the Sentencing Hearing. As part of his plea agreement, Cordero waived his rights to appeal and to file collateral attacks under 28 U.S.C. § 2255.
Cordero nonetheless appealed his sentence to the Third Circuit, which dismissed the appeal on May 7, 2007. He then filed a Section 2441 petition with the District Court for the District of New Jersey, challenging the calculation of his release date by the Bureau of Prisons ("BOP"), which was denied. He filed a Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(2) with this Court, seeking a reduction based on the changes in the crack cocaine guidelines, which was also denied.
In his current Petition, Cordero alleges he should have received credit for time served for one of his state convictions, because the state offense was "relevant conduct" to his federal conviction.
The Government contends the Court should dismiss Cordero's Petition due to improper venue. The venue determination turns on whether Cordero's petition should have been filed under Section 2255 or Section 2241 of Title 28. Under Section 2255, a federal prisoner "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255 (emphasis added). Accordingly, if Cordero's petition was correctly filed under Section 2255, venue in this Court is appropriate. Section 2241 instructs that petitions should be filed in the district court in the place where the prisoner is confined. 28 U.S.C. § 2243 (emphasis added); see also Rumsfeld v. Padilla, 542 U.S. 462, 447 (2006); United States v. Addonizio, 442 U.S. 178, 185 (1979). Accordingly, if Cordero's petition should have been filed under Section 2241, venue would lie in Kentucky, where he is confined presently.
The Court concludes that Cordero's petition was properly filed under 28 U.S.C. § 2255 because he is challenging the validity of his sentence as imposed by this Court, not the manner in which the sentence was executed by the Bureau of Prisons ("BOP"). Often, when a petitioner files a motion for credit for time served, courts will hold that Section 2241 is the proper vehicle. See United States v. Grimes, 641 F.2d 96, 99 (3d Cir. 1981) (holding that when the petitioner requested credit on his federal sentence for time spent in state custody, "the proper avenue . . . [was] under 28 U.S.C. § 2241"); Soyka v. Alldredge, 481 F.2d 303, 304-05 (3d Cir. 1973) (holding a claim for pre-sentence credit brought under 18 U.S.C § 3568, the predecessor statute to 18 U.S.C. § 3585, was cognizable under Section 2241). But the reason courts consider Section 2241 to be the proper avenue in these cases is because the petitioners' challenges concern credit determinations made by the BOP, not by the district court. United States v. Stackpole, 406 F. App'x 586, 586 (3d Cir. 2011) ("Stackpole . . . argued that the Bureau of Prisons improperly refused to modify his sentence to give him credit for time served in state detention. . . . Because Stackpole has challenged the manner in which his sentence was executed (as opposed to the validity of his sentence), he seeks relief that is exclusively available under § 2241."); United States v. Smith, 355 F. App'x 656, 657-58 (3d Cir. 2009) (holding Smith's claim for credit after his sentence was imposed involved "an administrative rather than a judicial responsibility" and was cognizable under § 2241); Grimes, 641 F.3d. at 99 ("[T]his claim, like the previous one, is a challenge to the sentence as executed by the prison and parole authorities and should be made on a petition for a writ of habeas corpus, 28 U.S.C. § 2241, not under 28 U.S.C. § 2255 whose terms cover challenges to sentences as imposed."). Courts deem these motions for credit to be challenges to the execution of the sentence rather than challenges to the sentence's validity, and thus properly filed under Section 2241.
Here, however, Cordero's Petition makes clear that that he is not bringing a challenge to credit calculations made by the BOP, but rather, to the validity of the sentence as imposed by this Court. His petition states: "I was supposed to be sentenced under U.S.S.G. Manual § 5G1.3(b)(2)" because "[t]he instant offense and the offense for which the undischarged term of imprisonment were imposed relate to the same crime and criminal conduct." (Pet. at 6) (ECF 414). He continues: "Under U.S.S.G. Manual 5G1.3(b)(2), the Court should adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guidance range for the instance offense." (Id.) Cordero's challenge resembles those that courts have deemed appropriately filed under Section 2255. E.g. United States v. Hernandez, 2012 WL 3704750, at *1-3 (E.D. Pa. Aug. 28, 2012) (involving challenges to the district court's imposition of a sentence enhancement under the Armed Career Criminal Act); Smith v. Lindsay, 2008 WL 275717, at *2 (M.D. Pa. Jan. 30, 2008) ("Petitioner's claim for credit on his sentence is a challenge to the validity of his sentence because he contends the sentencing judge was obligated to give him the credit. . . . Petitioner should therefore have proceeded in the sentencing court under section 2255.").
Accordingly, Cordero properly filed a Section 2255 petition and venue lies in this Court.
B. Waiver of Appeal and Collateral Attack
Cordero entered a guilty plea on February 25, 2004. His plea agreement contained an appellate and collateral attack waiver, which stated:
In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.
a. Notwithstanding the waiver provision above, if the government appeals from the sentence, then the defendant may file ...