DLD-293 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3051
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DARYL SAVAGE,
Appellant
v.
DONNA ZICKEFOOSE, Warden
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 09-cv-06418)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 22, 2011
Before: FISHER, BARRY and VAN ANTWERPEN, Circuit Judges.
(Filed: September 30, 2011)
_________
OPINION
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PER CURIAM
Daryl Savage, a federal prisoner who is currently confined at FCI-Fort Dix,
appeals pro se from an order of the United States District Court for the District of New
Jersey dismissing for lack of jurisdiction his habeas petition filed pursuant to 28 U.S.C.
§ 2241. For the following reasons, we will summarily affirm the judgment of the District
Court.
In August 2003, while on parole from a Maryland conviction, Savage was arrested
by the Baltimore Police Department for drug and firearms offenses. Although the state
dismissed the charges in favor of federal prosecution, Savage remained in state custody to
serve a sentence for violating his parole. While serving that state sentence, Savage was
convicted in the United States District Court for the District of Maryland of one count of
felon in possession of a firearm and one count of felon in possession of ammunition. 18
U.S.C. § 922(g)(1). On December 21, 2004, he was sentenced to 180 months of
imprisonment. Savage asserts that the sentencing court did not specify whether his
federal sentence was to run concurrently or consecutively with his then-running state
parole violator term. That term was completed on May 31, 2005, at which time Savage
was taken into federal custody to begin serving his federal sentence.
The United States Court of Appeals for the Fourth Circuit denied Savage‟s direct
appeal. United States v. Savage, 161 F. App‟x 256 (4th Cir. 2006). In 2007, Savage filed
a motion under 28 U.S.C. § 2255. The District Court denied that motion, and the Fourth
Circuit dismissed Savage‟s appeal. United States v. Savage, 272 F. App‟x 244 (4th Cir.
2008). Savage next unsuccessfully pursued a sentence reduction under 18 U.S.C.
§ 3582(c)(2).
In the meantime, Savage challenged the calculation of his sentence through the
federal Bureau of Prisons‟ (“BOP”) administrative remedy program. In particular, he
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alleged that the BOP should have credited his federal sentence for the time he spent
serving his state parole violator sentence. In rejecting Savage‟s argument, the BOP relied
on 18 U.S.C. § 3585(b), which expressly prohibits the BOP from crediting a federal
sentence with time that has already been credited toward another sentence.
Savage filed the present § 2241 petition in December 2009, alleging that his
federal sentence should have been calculated to run concurrently with his state parole
violator term. The District Court dismissed the petition for lack of jurisdiction, holding
that Savage could not challenge his sentence under § 2241. Savage filed two motions for
reconsideration, which the District Court denied. Savage appealed.
To the extent that Savage alleged that the sentencing court should have provided
for concurrent federal and state sentences under U.S.S.G. §§ 5G1.3(b) and 5G1.3(c), the
District Court properly dismissed his claims for lack of jurisdiction. A motion filed
under 28 U.S.C. § 2255 in the sentencing court is the presumptive means for a federal
prisoner to challenge the validity of a conviction or sentence. See Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002). A petitioner can seek relief under § 2241 only
if the remedy provided by § 2255 is inadequate or ineffective to test the legality of his
detention. In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). A § 2255 motion is not
“inadequate or ineffective” merely because the petitioner cannot meet the stringent
gatekeeping requirements of § 2255, Okereke, 307 F.3d at 120, or because the sentencing
court does not grant relief, Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d
Cir. 2002) (per curiam). Rather, the “safety valve” provided under § 2255 is extremely
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narrow and has been held to apply in unusual situations, such as those in which a prisoner
has had no prior opportunity to challenge his conviction for a crime later deemed to be
non-criminal by an intervening change in law. Okereke, 307 F.3d at 120 (citing In re
Dorsainvil, 119 F.3d at 251). We agree with the District Court that Savage‟s situation is
not the rare one rendering § 2255 inadequate or ineffective. Indeed, challenges to the
application of the Sentencing Guidelines are properly considered under § 2255. See
United States v. Eakman, 378 F.3d 294, 297 (3d Cir. 2004) (explaining that a prisoner
attacking the validity of his sentence, as opposed to the execution of his sentence, must
proceed under § 2255).
Although the District Court concluded that Savage alleged only errors in
sentencing, we do not read his pro se submissions so narrowly. Haines v. Kerner, 404
U.S. 519, 520 (1972). Instead, Savage‟s § 2241 petition and his motions for
reconsideration demonstrate that he also challenged the BOP‟s failure to credit his federal
sentence with the entire period he spent serving his state parole violator term. Although
such a claim is cognizable under § 2241, Ruggiano v. Reish, 307 F.3d 121, 126-27 (3d
Cir. 2002), Savage‟s arguments are without merit.
The authority to calculate a federal sentence and provide credit for time served has
been delegated to the Attorney General, who acts through the BOP. United States v.
Wilson, 503 U.S. 329, 333-35 (1992). In calculating a sentence, the BOP first determines
when the sentence commenced and then determines whether the prisoner is entitled to
any credits toward his sentence. See 18 U.S.C. § 3585. Section 3585(b), which governs
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when a prisoner receives credit for prior custody, expressly prohibits the BOP from
crediting a federal sentence with time that has already been credited toward another
sentence. Id. (requiring credit for time served “that has not been credited against another
sentence”); Wilson, 503 U.S. at 337 (“Congress made clear [in § 3585(b)] that a
defendant could not receive a double credit for his detention time.”). Accordingly,
because the time that Savage served in state custody was credited toward his parole
violator sentence, he is not also entitled to have that time credited toward his federal
sentence.1 Rios v. Wiley, 201 F.3d 257, 272-73 (3d Cir. 2000).
For the foregoing reasons, we conclude that no substantial question is presented by
this appeal. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court‟s
judgment.
1
In support of his claims, Savage submitted to the District Court portions of the
presentence report and the sentencing hearing transcript. He suggests that these
documents demonstrate that the sentencing court erred in not applying §§ 5G1.3(b) and
5G1.3(c) of the Sentencing Guidelines. Of course, as noted above, a challenge to the
sentencing court‟s application of the Guidelines is not cognizable in a § 2241 petition. In
any event, however, there is no indication that application of §§ 5G1.3(b) and 5G1.3(c)
was permissible or intended. United States v. Garcia-Hernandez, 237 F.3d 105, 110 (2d
Cir. 2000) (holding that “[w]hen a criminal defendant is imprisoned as a result of his
violation of the terms of his parole, the „offense‟ that „results‟ in his imprisonment is, for
the purposes of § 5G1.3(b), the underlying prior offense of conviction, not the conduct
violative of his parole conditions.”); United States v. Fifield, 432 F.3d 1056, 1061-63 (9th
Cir. 2005) (stating that “[t]he present case falls under § 5G1.3(c), not § 5G1.3(b)” where
the petitioner “committed the federal offenses while he was serving a five-year period of
probation” for underlying prior offenses involving conduct that was not relevant to the
federal offenses); Blood v. Bledsoe, 648 F.3d 203, *2 (3d Cir. 2011) (noting that “if the
Delaware court intended to fashion a sentence that would effectively „credit‟ Blood with
the disputed time, it would have explicitly granted a downward departure in accordance
with § 5G1.3(c) of the United States Sentencing Guidelines.”).
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