                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 08-2184
                                     ___________

James W. Mathena,                         *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri.
United States of America,                 *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: April 15, 2009
                                 Filed: August 24, 2009
                                  ___________

Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and ROSENBAUM,1
      District Judge.
                             ___________

COLLOTON, Circuit Judge.

       James W. Mathena petitioned for a writ of habeas corpus in the district court
pursuant to 28 U.S.C. § 2241, challenging the execution of his federal sentence. The
district court dismissed the petition as barred by a one-year statute of limitations, and
Mathena appeals. Reviewing the dismissal de novo, we reverse and remand for the
district court to dismiss the petition without prejudice, because Mathena’s petition was
timely, but he failed to exhaust his administrative remedies.

      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
       In June 2003, Mathena was arrested by Missouri law enforcement officers and
charged with possession and distribution of various controlled substances. [App. 49].
While in state custody pending trial on these charges, he was charged with assaulting
another inmate. In December 2003, while still in state custody, a federal grand jury
indicted him for possession of a firearm as a previously convicted felon, and he was
transferred into federal custody pursuant to a writ of habeas corpus ad prosequendum.
He eventually pled guilty to the federal firearms charge, and on May 24, 2004, the
district court sentenced Mathena to 195 months’ imprisonment. Mathena did not
appeal his conviction or sentence.

       Mathena was committed to the custody of the Bureau of Prisons (“BOP”), and
on June 24, 2004, he was delivered to the United States Penitentiary in Leavenworth,
Kansas. The record does not indicate how long Mathena was in the federal
penitentiary or the formal process by which he was returned to state custody, but on
April 11, 2005, Mathena pled guilty in Missouri state court to second-degree assault
and was sentenced to ten years’ imprisonment. According to the state court judgment,
this sentence was to be served concurrent with Mathena’s “Federal sentence currently
serving.” Mathena did not appeal this judgment. Following the imposition of his state
sentence, Mathena remained in state custody to serve out his state sentence.
Sometime after October 23, 2006, he received a copy of the federal detainer against
him, which stated that upon his release from state custody, he would serve his federal
sentence of “195 MONTHS CONSEC.”2

       On December 1, 2006, while still in state custody, Mathena filed a pro se
petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district court. In his


      2
       In his pro se filings in the district court, Mathena asserted these basic facts,
although he did not state the exact date when he received the detainer. Mathena
moved to supplement the record on appeal, submitting a copy of the state court
judgment from April 11, 2005, and the federal detainer dated October 23, 2006. The
government does not object, and we grant Mathena’s motion.

                                         -2-
petition, Mathena asked the court to withdraw the federal detainer or to order that his
federal sentence run concurrent with his state sentence. He argued that allowing his
federal sentence to run consecutive to his state sentence would be inconsistent with
the sentences imposed by the state and federal courts, and would violate the Double
Jeopardy Clause and 18 U.S.C. § 3585.

       The district court dismissed Mathena’s petition as untimely on the ground that
it was not filed within a one-year statute of limitations. See Mathena v. United States,
No. 06-CV-178, 2008 WL 474324 (E.D. Mo. Feb. 14, 2008). Reasoning that Mathena
“became aware of the facts underlying his claim” on April 11, 2005, the date on which
his state court judgment was imposed, the court determined that Mathena had until
April 11, 2006, to file a petition, and that his filing on December 1, 2006, was
untimely. Id. at *1 & n.2. Mathena subsequently completed his state sentence and
was returned to BOP custody to serve his federal sentence.

       On appeal, the parties assume that the one-year statute of limitations set forth
in 28 U.S.C. § 2244(d) applies to a habeas petition under § 2241 filed by a prisoner
in state custody challenging the execution of a federal sentence. We are not sure that
this assumption is correct. Cf. Morales v. Bezy, 499 F.3d 668, 672 (7th Cir. 2007)
(stating that “there is no statute of limitations applicable to a federal prisoner’s filing
a section 2241 habeas petition”); Dulworth v. Evans, 442 F.3d 1265, 1267-68 (10th
Cir. 2006) (holding that § 2244(d) applies to a state prisoner’s habeas petition under
§ 2241 challenging execution of his state sentence). We need not decide this point,
however, because even if § 2244(d) applies, it does not bar Mathena’s petition.

       Section 2244(d)(1) establishes a one-year statute of limitations for filing a
petition for writ of habeas corpus “by a person in custody pursuant to the judgment
of a State court.” The one-year period begins running, as relevant here, on the latest
of “the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review,” or “the date on which the

                                           -3-
factual predicate of the claim or claims presented could have been discovered through
the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(A), (D). The factual predicate
of a claim “could have been discovered” when a petitioner knows or should have
known through due diligence “the vital facts underlying” the claim. Earl v. Fabian,
556 F.3d 717, 725 (8th Cir. 2009) (internal quotation omitted).

        Mathena did not appeal either the federal judgment of May 24, 2004, or the
state judgment of April 11, 2005. The judgments thus became final after ten days, see
Fed. R. App. P. 4(b)(1); Mo. Sup. Ct. R. 30.01(d), and Mathena’s habeas petition filed
on December 1, 2006, was not filed within a year of either judgment becoming final.
As the government now acknowledges, however, Mathena could not have discovered
the factual predicate of his claim until he received the federal detainer sometime after
October 23, 2006. His federal sentence was silent as to whether it was to be served
concurrent or consecutive to the then-pending state charges. The state judgment stated
that his state sentence was imposed concurrent to his federal sentence. Under these
circumstances, Mathena had no reason to suspect that the BOP would calculate his
federal sentence consecutive to his state sentence until he received the federal
detainer. The district court did not explain its contrary conclusion that Mathena
“became aware of the facts underlying his claim” at the time the state judgment was
final, Mathena, 2008 WL 474324, at *1 n.2, and we see no basis for such a
conclusion. Therefore, assuming § 2244(d)(1) applies, Mathena was required to file
his petition within one year of October 23, 2006, and his petition filed on December
1, 2006, was timely.

       Nevertheless, Mathena’s petition must be dismissed because he failed to
exhaust his administrative remedies within the Bureau of Prisons. A prisoner may
bring a habeas action challenging the BOP’s execution of his sentence only if he first
presents his claim to the BOP. United States v. Chappel, 208 F.3d 1069, 1069 (8th
Cir. 2000) (per curiam); Rogers v. United States, 180 F.3d 349, 357 (1st Cir. 1999).
Under BOP procedures, Mathena can raise a claim that his federal and state sentences

                                          -4-
should run concurrently by requesting a nunc pro tunc designation of the Missouri
institution where he served his state sentence as the place to serve his federal sentence.
See BOP Program Statement 5160.05, at ¶ (9)(b)(4) (2003); Fegans v. United States,
506 F.3d 1101, 1104-05 (8th Cir. 2007). If the BOP were to deny Mathena’s request,
he could then seek review of the BOP’s decision by filing a petition for writ of habeas
corpus under § 2241 in the appropriate district court. See Fegans, 506 F.3d at 1103
& n.1; Chappel, 208 F.3d at 1069-70.3 Mathena did not, however, make a nunc pro
tunc designation request to the BOP before filing his habeas petition. Therefore,
Mathena did not exhaust his administrative remedies, and his petition must be
dismissed without prejudice. See Chappel, 208 F.3d at 1069. Because the district
court erroneously dismissed the petition with prejudice, we remand for the district
court to modify the dismissal.

       The judgment of the district court is vacated, and the case is remanded with
directions to dismiss Mathena’s petition without prejudice.
                       ______________________________




      3
       In this case, Mathena did not file his petition in the district where he is
confined or where the BOP has a central or regional office, see Chappel, 208 F.3d at
1069, but this defect did not deprive the district court of subject matter jurisdiction,
see Rumsfeld v. Padilla, 542 U.S. 426, 434 n.7 (2004); Lee v. United States, 501 F.2d
494, 500-01 (8th Cir. 1974) (considering appropriate district for § 2241 petition a
question of “in personam jurisdiction”), and the government waived any objection by
not raising the issue. See Padilla, 542 U.S. at 452 (Kennedy, J., concurring); cf.
Yeldell v. Tutt, 913 F.2d 533, 538-39 (8th Cir. 1990) (holding that defendants waived
argument that court lacked personal jurisdiction).

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