                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0278n.06
                            Filed: April 25, 2006

                                           No. 05-1403

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


THOMAS FRANKLIN WOODY,                                   )
                                                         )         ON APPEAL FROM THE
       Petitioner-Appellant,                             )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE EASTERN
v.                                                       )         DISTRICT OF MICHIGAN
                                                         )
HELEN J. MARBERRY, WARDEN,                               )                           OPINION
                                                         )
       Respondent-Appellee.                              )




BEFORE:        MARTIN, NELSON, and COLE, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. Pro se Petitioner-Appellant Thomas Franklin Woody

filed a habeas petition in the judicial district in which he was incarcerated pursuant to 28 U.S.C. §

2241. The district court determined that, while a portion of Woody’s petition properly sought relief

under § 2241, Woody raised claims that should have been brought under 28 U.S.C. § 2255. The

district court concluded that 1) relief under § 2241 was improper because the Bureau of Prisons did

not err in calculating Woody’s sentence and that Woody had not shown that the remedy under §

2255 was inadequate such that he could seek relief for his ostensible § 2255 claims under § 2241,

and 2) that § 2241 offered the incorrect framework to analyze Woody’s § 2255 claims. The district

court then recharacterized Woody’s petition under § 2241 as a petition under § 2255 and determined

that the interest of justice did not require that Woody’s petition be transferred to the Northern
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District of Florida, where Woody properly could have brought his § 2255 petition. Finally, the

district court dismissed Woody’s petition for lack of jurisdiction.

       For the following reasons, we AFFIRM the district court’s judgment as to Woody’s § 2241

claims, VACATE the district court’s jurisdictional holding on Woody’s § 2255 claim and

REMAND for the limited purpose of having the district court comply with the Supreme Court’s

opinion in Castro v. United States, 540 U.S. 375 (2003), and give Woody the opportunity to either

withdraw his petition, have his petition transferred under 28 U.S.C. § 1631 to the appropriate

judicial district, or have his petition construed as one being brought under § 2255 and, therefore, be

denied on jurisdictional grounds.

                                                  I.

       The essential facts of this case are not in dispute. On March 31, 1994, Woody was in state

custody in Florida serving a two and one-half year state prison sentence. Pursuant to a writ of

habeas corpus ad prosequendum, Woody was brought into federal custody. On July 29, 1994,

Woody was sentenced to three concurrent 140-month terms of imprisonment in the United States

District Court for the Northern District of Florida on three counts of bank robbery. The judgments

of sentence indicated that the federal sentences would run concurrently with one another but were

silent as to whether the federal sentences would be concurrent or consecutive to any sentences

imposed in the state courts.

       On August 1, 1995, Woody completed his first state sentence. However, while Woody was

serving this state sentence, “a detainer was placed on him by the Hillsborough County Circuit Court

in Tampa, Florida for a hearing to determine whether to” punish Woody for violating his

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probation/community control status on several felony convictions. On August 3, 1995, two days

after completing his first state sentence, Woody’s community control status was revoked and he was

sentenced to five and one-half years in state prison by the Hillsborough County Circuit Court.

       As the district court summarized:

              Petitioner remained in the custody of the State of Florida until he was
       discharged from his state sentence by the Florida Department of Corrections
       (F.D.O.C.) on November 26, 1997. Petitioner was then transferred to the Bureau of
       Prisons to commence his federal prison sentences.

               On March 19, 2004, petitioner filed a request with the Bureau of Prisons
       [(“B.O.P.”)] to receive approximately twenty eight months credit against his federal
       sentences for the time between August 3, 1995 and November 26, 1997 that he was
       incarcerated in the State of Florida after his probation was revoked . . .. Because the
       judgment in petitioner’s federal sentences had been silent as to whether these
       sentences would be served consecutively or concurrently to any as yet imposed state
       sentences, the B.O.P. contacted the federal judge in this case pursuant to Program
       Statement 5160.05, to ascertain his intent when sentencing petitioner. On June 17,
       2004, Judge Maurice M. Paul wrote the B.O.P.’s Inmate Systems Administrator and
       informed him that his intent was that petitioner’s federal sentences would commence
       only after he had completed his state sentence and “entered into exclusive federal
       custody.”

(Emphasis added).

       At about the same time the administrative procedure was occurring, Woody moved the

Northern District of Florida to clarify which date his federal sentence commenced. On June 23,

2004, the district court denied the motion, stating that Woody’s “federal sentence was meant to run

consecutively to his state sentence, thereby setting the date he entered into exclusive federal custody,

November 26, 1997, as the date his sentence commenced.”

       On July 3, 2004, Woody sought reconsideration in the Florida district court. This motion

was denied on July 21, 2004.

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       On December 9, 2004, pursuant to 28 U.S.C. § 2241, Woody filed a petition for a writ of

habeas corpus in the Eastern District of Michigan, the judicial district in which he was incarcerated

at the time he filed his petition. Woody’s petition basically contained two substantive claims. First,

Woody claimed that the Bureau of Prisons (“BOP”) miscalculated his sentence under federal law.

Second, Woody claimed that the order of the Florida district court ten years after Woody’s federal

conviction and original sentence, which held that Woody’s sentence was to run consecutively to the

yet-to-be-imposed state sentence, violated federal law and the Constitution.

       The district court analyzed Woody’s first claim through the lens of § 2241, and determined

that Woody did not have a cognizable § 2241 claim. The district court then determined that the rest

of Woody’s claims relating to the Florida district court’s 2004 sentencing order should have been

brought pursuant to 28 U.S.C. § 2255 rather than § 2241. The district court determined that Woody

had not met his burden to show that § 2255 provided an inadequate remedy such that § 2241 was

the proper avenue for habeas relief. The district court further determined that it was without

jurisdiction to adjudicate Woody’s § 2255 petition.

       Importantly, while it did not do so explicitly, the district court recharacterized Woody’s pro

se habeas petition as one under § 2255 when it considered transferring Woody’s habeas petition to

the Northern District of Florida because the district court could not transfer a § 2241 petition to

Florida. The district court did this without notice to Woody that the court intended to recharacterize

part of Woody’s motion as a habeas petition brought pursuant to § 2255, and without providing

Woody an opportunity to withdraw his § 2255 claims.




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          Woody timely appealed. On appeal he claims that § 2241 afforded the Eastern District of

Michigan jurisdiction over his habeas petition, that § 2255 was an inadequate remedy to address his

sentencing issues, that the Florida district court erred in changing the conditions of his sentence, and

that the BOP should be required to give him credit for the time served on his second state sentence.

                                                   II.

          We review the denial of § 2241 relief de novo. Rosales-Garcia v. Holland, 322 F.3d 386,

400–01 (6th Cir. 2003). We review the factual determinations of the district court for clear error.

Martin v. Perez, 319 F.3d 799, 802 (6th Cir. 2003).

A. Woody’s § 2241 Claim

          Woody’s petition, in part, raises the issue of how his sentence is being executed. Therefore,

that part of his petition is proper under § 2241. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.

1998).

          The general rule is that the BOP has the authority to determine if a defendant is eligible for

credit for time served in detention prior to sentencing. United States v. Wilson, 503 U.S. 329, 335

(1992); United States v. Crozier, 259 F.3d 503, 520 (6th Cir. 2001) (same). Under § 2241, however,

a court can grant relief when sentencing credits are miscalculated. United States v. Chase, 104 F.

App’x 561, 562 (6th Cir. 2004) (citing McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir.

1993)).

          Woody’s original habeas petition claims that 18 U.S.C. § 3585(b) requires the BOP to credit

him for the time served on his second Florida conviction. However, § 3585(b) only allows credit

for time “that has not been credited against another sentence.” Wilson, 503 U.S. at 334. The time

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that Woody believes that the BOP should credit him was time he served on a state conviction.

Therefore, the BOP did not err in calculating Woody’s sentence. To the extent Woody is arguing

that the BOP should not have relied on the Florida district court’s letter clarifying Woody’s

sentence, that claim is properly brought under § 2255.

        We therefore affirm the district court’s determination denying Woody’s § 2241 claim, as the

BOP properly calculated Woody’s sentence.

B. Woody’s § 2255 Claim

        Under § 2255, a habeas petitioner convicted of a federal crime must move “the court which

imposed the sentence” if he is arguing that the “sentence was imposed in violation of the

Constitution or laws of the United States, or that the court was without jurisdiction to impose such

sentence.” Section 2255 has a safety-valve, however, in which a petitioner may bring a claim under

§ 2241 that, while appearing to be properly brought under § 2255, may be brought under § 2241 if

the remedy afforded under § 2255 is inadequate. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir.

1999); 28 U.S.C. § 2255 (“An application for a writ of habeas corpus in behalf of a prisoner who

is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it

appears that the applicant has failed to apply for relief . . . to the court which sentenced him, or that

such court has denied him relief, unless it also appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.” (emphasis added)). The burden of showing that a

§ 2255 remedy is inadequate lies with the petitioner. In re Gregory, 181 F.3d 713, 714 (6th Cir.

1999). This is a high burden for a petitioner to meet. See United States v. Peterman, 249 F.3d 458,

461 (6th Cir. 2001) (“The circumstances in which § 2255 is inadequate and ineffective are narrow,

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for to construe § 2241 relief much more liberally than § 2255 relief would defeat the purpose of the

restrictions Congress placed on the filing of successive petitions for collateral relief.”).

        On appeal, Woody argues that his remedy under § 2255 was inadequate. He argues that he

was procedurally barred from pursuing a § 2255 remedy because § 2255’s one-year statute of

limitations had expired. Woody contends that he would have had to bring his § 2255 petition within

one year of being sentenced — that he would have had to bring his petition by July 29, 1995.

Therefore, Woody argues, because he did not know about the potential problem with his sentence

until the Florida district court notified the BOP that it intended Woody’s federal sentence to run

consecutive to any yet to be imposed state sentences, he was foreclosed from raising a § 2255

petition.

        Woody’s argument as to the statue of limitations is flawed. The one-year “limitation period

shall run from the latest of– . . . (4) the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255.

The facts pertinent to Woody’s claim that the Florida district court could not alter his sentence ten

years after entering it were not known until June 17, 2004, the date Judge Paul wrote his letter to the

BOP clarifying Woody’s sentence, at the earliest. Therefore, Woody’s habeas petition, filed on

December 9, 2004, could have been timely filed as a § 2255 petition if it had been filed in the proper

jurisdiction.

        Insofar as these claims should have been brought under § 2255 in the Northern District of

Florida, the district court was correct that it did not have jurisdiction. However, this does not end

our inquiry. While the district court never explicitly used the term “recharacterize,” it is clear that

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the district court did, in fact, recharacterize the portion of Woody’s § 2241 petition that should have

been brought under § 2255 as being brought under § 2255. On page eight of its opinion, the district

court stated that Woody’s petition “should have been filed in the Northern District of Florida.”

Further, the district court contemplated transferring Woody’s petition to the Northern District of

Florida, though it ultimately decided that it would not be in the interest of justice to so transfer.1

Because a § 2241 petition could not have been filed in or transferred to the Northern District of

Florida, the district court had to essentially recharacterize a portion of Woody’s § 2241 petition as

being a § 2255 petition prior to reaching these issues.

       There are potentially serious consequences to recharacterizing a § 2241 petition as one being

brought under § 2255 because once a petition is construed as being brought under § 2255, there are

restrictions placed on a petitioner on filing a second or successive § 2255 petition. The Supreme

Court, therefore, pursuant to its “supervisory powers” over the federal judiciary, requires in cases

where a pro se plaintiff’s claim is not brought under § 2255, that the district court prior to

recharacterizing the claim,

       must notify the pro se litigant that it intends to recharacterize the pleading, warn the
       litigant that this recharacterization means that any subsequent § 2255 motion will be
       subject to the restrictions on ‘second or successive’ motions, and provide the litigant
       an opportunity to withdraw the motion . . . . If the court fails to do so, the motion




       1
          The district court determined that, because the Eleventh Circuit allows sentencing courts
to run federal sentences consecutively to state sentences that are yet to be imposed, see United States
v. Andrews, 330 F. 3d 1305, 1306–07 (11th Cir. 2003); United States v. Ballard, 6 F.3d 1502, 1510
(11th Cir. 1993), and that Woody had already filed a motion for reconsideration in the Northern
District of Florida that was denied, it would be futile to transfer Woody’s petition. Therefore, the
district court concluded, it was not in the interest of justice to transfer the petition.

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        cannot be considered to have become a § 2255 motion for purposes of applying to
        later motions the law’s ‘second or successive’ restrictions.

Castro v. United States, 540 U.S. 375, 383 (2003) (emphasis added). The Castro decision was

announced prior to Woody filing his habeas petition. When the district court treated a portion of

Woody’s pro se § 2241 petition as if it were a § 2255 petition, the district court had an affirmative

obligation to inform Woody of the potential consequences attendant to construing this first petition

as one being brought under § 2255. The district court failed to fulfill its obligation to the pro se

habeas plaintiff as required by Castro.

        Because the district court did not issue the Castro warning, this case is remanded to the

district court with the instruction that the district court issue the Castro warning to Woody and order

the district court, if Woody desires, to transfer Woody’s § 2255 petition to the Northern District of

Florida under 28 U.S.C. § 1631. Pursuant to 28 U.S.C. § 1631, a district court is required to transfer

an action in which it lacks jurisdiction to the appropriate federal jurisdiction “if it is in the interest

of justice.” See Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003) (§ 1631 allows transfers of

habeas petitions). The interest of justice would require that Woody’s habeas petition be transferred

because there is the risk that a newly filed § 2255 petition would be considered time-barred.

Further, if the district court had properly warned and notified Woody pursuant to Castro, Woody

would have been able to file a § 2255 petition in the proper district within the one-year statute of

limitations. The district court’s failure to follow the clear directive of the Supreme Court and the

ensuing potential prejudice to Woody’s claim now requires a finding that, if Woody desires, a

transfer of his petition is necessary to comply with § 1631.



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                                               III.

       For the foregoing reasons, we AFFIRM the district court’s judgment on Woody’s § 2241

claims, VACATE the district court’s jurisdictional holding on Woody’s § 2255 claim and

REMAND for the limited purpose of having the district court first give Woody the appropriate

Castro warning, and then give Woody the opportunity to either 1) withdraw his petition, 2) have his

petition transferred under 28 U.S.C. § 1631 to the Northern District of Florida, or 3) have his

petition construed as one being brought under § 2255 and, therefore, be denied on jurisdictional

grounds.




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