UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-7459
DARIN EUGENE JETER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-95-319, CA-97-937-3-17)
Submitted: July 28, 1998
Decided: August 11, 1998
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Darin Eugene Jeter, Appellant Pro Se. Beth Drake, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Darin Eugene Jeter, who was in state custody awaiting disposition
of related state charges, appeared in federal court on February 1,
1996, pursuant to a writ of habeas corpus ad prosequendum, and pled
guilty to being a felon in possession of a firearm. In return, the United
States dismissed a second firearms charge and moved for a downward
departure based on substantial assistance. On April 30, 1996, the dis-
trict court sentenced Jeter to sixty-four months imprisonment. On
May 17, Jeter was returned to state custody.
On October 28, Jeter pled guilty to state charges of burglary and
grand larceny. The state court imposed a sentence of six years on the
burglary charge, gave Jeter credit for time served since October 1995,
and ordered that the burglary sentence run concurrently with the fed-
eral sentence. The court also imposed a five-year sentence on the
grand larceny charge to run consecutive to the federal sentence. How-
ever, because Jeter remained in state custody, his federal sentence had
not yet begun to run. See 18 U.S.C. § 3585(a) (1994) (sentence runs
from the date on which the defendant is received at the prison for ser-
vice of the sentence).
Jeter then filed a motion under 28 U.S.C.A. § 2255 (West 1995 &
Supp. 1998), claiming that he was denied effective assistance of coun-
sel because his attorney had not advised him that his federal sentence
could not run concurrently with his state sentence and that his plea
was involuntary because he did not understand the same. His court
appointed attorney filed a Fed. R. Crim. P. 36 motion seeking correc-
tion of the terms of Jeter's sentence and an order that Jeter's federal
sentence commence on the date he first appeared in federal court.*
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*As a threshold matter, because neither a § 2255 motion nor a Rule 36
motion applies to attacks on the execution of a sentence, the portion of
Jeter's claim seeking credit on his federal sentence will be construed as
a 28 U.S.C. § 2241 (1994) petition. See United States v. Miller, 871 F.2d
488, 490 (4th Cir. 1989).
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On June 13, 1997, the district court granted Jeter partial relief and
amended its judgment and conviction in the case to provide that the
state facility at which Jeter was serving his state sentence was desig-
nated as the place of service of the federal sentence. According to the
terms of the June 13 order, the federal and state sentences would run
concurrently from June 13, 1997, forward.
Jeter filed two motions for reconsideration seeking that the June 13
order be made retroactive so that his federal and state sentences
would be deemed to run concurrently from an earlier date. The district
court denied the motions. Jeter timely appealed. The United States did
not appeal. Because we are unable to determine whether the district
court had authority to decide Jeter's claim that the district court's
June 13 order should be applied retroactively, we vacate and remand
for further consideration.
The district court made no finding as to whether Jeter satisfied the
exhaustion requirement for 28 U.S.C. § 2241 (1994) claims. How-
ever, the Supreme Court has expressly held that a district court does
not have the jurisdiction to make the initial determination to award
sentence credit for time spent in official detention. Rather, the Attor-
ney General, through the Bureau of Prisons, is to make that determi-
nation. Review of the Bureau of Prisons' determination is available
through the administrative process and ultimately, after the exhaus-
tion of administrative remedies, in the district court. See United States
v. Wilson, 503 U.S. 329, 334-35 (1992).
The United States notes that Jeter filed a letter with the district
court asserting that he requested credit for time served in state cus-
tody from the Bureau of Prisons and that his request was denied.
However, the record contains neither this letter nor any documenta-
tion from the Bureau of Prisons. Further, it is unclear whether Jeter's
request was formal or informal and whether he attempted to appeal
the denial. See 28 C.F.R. §§ 542.10-542.16 (1997). In any event, the
district court made no finding on this issue.
While it is true that the United States did not raise this issue below,
exhaustion of administrative remedies in this context is not waivable.
Until the Attorney General makes a sentence credit determination
under 18 U.S.C. § 3585(b) (1994), the case is not ripe for review by
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the district court. See United States v. Jenkins , 38 F.3d 1143, 1144
(10th Cir. 1994) (vacating district court's award of sentence credit
even though the United States did not raise exhaustion as a defense
in district court); United States v. Westmoreland, 974 F.2d 736, 737-
38 (6th Cir. 1992) (reversing order of the district court denying sen-
tence credit where the Bureau of Prisons had not issued a decision,
even though the United States expressly waived exhaustion require-
ments).
Accordingly, the district court's consideration of the case was pre-
mature. We, therefore, grant a certificate of appealability, vacate the
district court's order to the extent it denies Jeter credit towards his
federal sentence for time served before June 13, 1997, and remand the
case to the district court for consideration of whether Jeter exhausted
administrative remedies.
For the reasons discussed above, the district court also incorrectly
granted Jeter's motions in part, ordering that his sentences run con-
currently from June 13, 1997, forward. However, the United States
neither raised the exhaustion requirements below nor appealed the
order of the district court. After consideration of the issue, we decline
to exercise our discretion to correct this error on the unappealed por-
tion of the district court's order.
Finally, we affirm the remainder of the district court's orders which
denied Jeter's ineffective assistance and involuntary guilty plea
claims. An attorney is not ineffective for failing to explain an entirely
collateral consequence of a plea to a defendant. See United States v.
Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988). Because operation of
§ 3585 is collateral to Jeter's sentence, see Cobb v. United States, 583
F.2d 695, 696-97 (4th Cir. 1978) (discussing similar, repealed stat-
ute), counsel was not ineffective. In addition, because he was advised
of all direct consequences of his plea, Jeter's plea was not involun-
tary. Id.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
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