                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 13, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 11-6001
 ERIC WAYNE DOTSON,                            (D.C. No. 5:98-CR-00203-M-1)
                                                       (W. D. Okla.)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Eric Wayne Dotson, a Georgia state prisoner proceeding pro se, appeals the

denial of his “Motion for Order Directing the U.S. Attorney General to


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Immediately Obtain Custody of Defendant.” Construing Dotson’s motion as a

habeas petition pursuant to 28 U.S.C. § 2241, we reverse and remand to the

district court with instructions to vacate its denial of relief and to dismiss the

motion without prejudice.

                                      I. FACTS

      This case requires consideration of the interaction of three separate

sentences imposed against Dotson for a series of armed jewelry store robberies

that occurred in several states from 1997 to 1998. Dotson outlines the following

history of his incarceration.

      The state of Kentucky imposed the first of the three sentences at issue.

Dotson asserts that he entered Kentucky state custody on June 4, 1998. ROA,

Vol. 1 at 29. Dotson was convicted of robbery and sentenced to life

imprisonment in the state of Kentucky on July 12, 1998. ROA, Vol. 2 at 15; see

also ROA, Vol. 1 at 29. According to Dotson, this life sentence was subsequently

reduced to thirty years’ imprisonment. ROA, Vol. 1 at 30.

      Then, on November 4, 1998, a federal grand jury in the Western District of

Oklahoma returned an indictment charging Dotson with one count of interference

with commerce by robbery, in violation of 18 U.S.C. § 1951, one count of using a

firearm during the commission of a crime of violence, in violation of 18 U.S.C. §

924(c)(1), and one count of knowingly transporting at least $5,000 worth of stolen

property in interstate commerce, in violation of 18 U.S.C. § 2314. Id. at 13–15.

                                           2
Pursuant to a writ of habeas corpus ad prosequendum, Dotson was transferred

from Kentucky state custody to federal custody in the Western District of

Oklahoma. ROA, Vol. 2 at 1.

      After a jury trial in the Western District of Oklahoma, Dotson was

convicted on all counts. ROA, Vol. 1 at 16. On December 10, 1999, the district

court sentenced Dotson to a total of 322 months’ imprisonment – 142 months for

robbery, 60 months for using a firearm during the commission of a crime of

violence, and 120 months for knowingly transporting at least $5,000 worth of

stolen goods in interstate commerce, with each term to be served consecutively. 1

Id. at 16–17. The judgment imposing this sentence specified that “all terms of

imprisonment [were] to be served after any other sentence that he [wa]s presently

serving.” Id. at 17. After the district court imposed his federal sentence, Dotson

was returned to Kentucky state custody to continue serving his Kentucky state

sentence. Id. at 29. According to Dotson, “[t]he U.S. Marshal’s Service [then]

lodged a detainer for the [federal] sentence . . . with the state of Kentucky.” Id. at

30.



      1
         Dotson directly appealed his convictions and sentence, and this court
affirmed. United States v. Dotson, 242 F.3d 391 (10th Cir. 2000) (unpublished).
Dotson then filed a motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255, which the district court denied. United States v. Dotson, 28 F.
App’x 801, 802 (10th Cir. 2001) (unpublished). This court declined to grant a
certificate of appealability with respect to the district court’s denial of this
motion. Id.

                                          3
      Dotson was subsequently transferred from Kentucky state custody to

Georgia state custody pursuant to a writ of habeas corpus ad prosequendum. Id.

In the state of Georgia, Dotson was convicted of armed robbery and sentenced to

twenty years’ incarceration on June 16, 2000. Id. He was then returned to

Kentucky state custody to continue serving his Kentucky state sentence. Id.

Dotson asserts that, at that point, the state of “Georgia filed a detainer with the

State of Kentucky.” Id.

      On September 2, 2004, after the state of Kentucky granted him parole from

his Kentucky state sentence, Dotson was transferred to Georgia state custody to

serve his Georgia state sentence. Id. Federal authorities filed a detainer with the

state of Georgia in 2009. Id. at 31. Dotson unsuccessfully pursued several

actions in Georgia state court asserting that he was improperly placed in Georgia

state custody prior to his service of his federal sentence. Aple. Br. at 37–38 (Ex.

2). Dotson remains in Georgia state custody. Aplt. Br. at 2.

      On November 10, 2010, Dotson filed his “Motion for Order Directing the

U.S. Attorney General to Immediately Obtain Custody of the Defendant” in the

Western District of Oklahoma. ROA, Vol. 1 at 29–32. In the motion, Dotson

argued that he was improperly transferred to Georgia state custody after he was

granted parole from his Kentucky state sentence and that, instead, he should have

been placed in federal custody. In support, Dotson asserted that, because the

federal detainer was filed with the state of Kentucky prior to the Georgia state

                                           4
detainer, he should have been placed in federal custody prior to Georgia state

custody. Id. at 30. Further, he contended that his federal and his Georgia state

sentences were to run concurrently. He explained that his federal sentence was to

commence “after any other sentence that he [wa]s currently serving.” Id. at 17.

He reasoned that, because his Georgia state sentence had not been imposed at the

time of his federal sentencing, id. at 30, the federal sentence necessarily was to

run concurrent to his Georgia state sentence. He also noted that his Georgia state

sentence was ordered to run “concurrent to both the Kentucky and federal

sentences.” 2 Id. Thus, Dotson argued that his placement in Georgia state custody

deprived him of his right to serve his federal and Georgia state sentences

concurrently.

      On this basis, Dotson requested that the district court order federal

authorities to immediately place him in federal custody and to award him credit

against his federal sentence for the six years he erroneously spent in Georgia state

custody. Id. at 32. Without analyzing its jurisdiction, the district court

summarily denied Dotson’s motion on December 10, 2010. Id. at 34. The district



      2
        Dotson noted, “[t]he transcript of Georgia sentencing says the sentence is
to be concurrent to both the Kentucky and federal sentences, but the Georgia
court’s final disposition is silent on the matter.” ROA, Vol. 1 at 30. Further, the
government provided documentation suggesting that the Georgia state sentence
was to run consecutive to his federal sentence. Aple. Br. at 64. Thus, it is
unclear whether the Georgia state court intended Dotson’s Georgia state sentence
to run concurrent to his federal sentence.

                                          5
court reasoned that “[Dotson] has not articulated sufficient cause for this Court to

provide the extraordinary relief requested.” Id. Dotson’s notice of appeal from

the district court’s decision was filed on January 4, 2011. Id. at 35.

                                  II. ANALYSIS

      Because Dotson is proceeding pro se, we construe his pleadings liberally.

See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). There are

two ways in which we could construe Dotson’s “Motion for Order Directing the

U.S. Attorney General to Immediately Obtain Custody of Defendant”: (1) as an

application for a writ of mandamus pursuant to 28 U.S.C. § 1361; or (2) as a

habeas petition under 28 U.S.C. § 2241 challenging the execution of his federal

sentence. 3 We conclude that Dotson failed to establish the requisite conditions

for relief under 28 U.S.C. § 1361. However, when construing Dotson’s motion as

a habeas petition under 28 U.S.C. § 2241, we conclude that the district court

should have dismissed the motion without prejudice for lack of jurisdiction.

      A. Petition for writ of mandamus pursuant to 28 U.S.C. § 1361

      We first construe Dotson’s motion as a request for a writ of mandamus

pursuant to 28 U.S.C. § 1361. Under 28 U.S.C. § 1361, “[t]he district courts shall


      3
         Because we construe Dotson’s motion as either a petition for a writ of
mandamus under 28 U.S.C. § 1361 or a habeas petition under 28 U.S.C. § 2241,
rather than a motion in his criminal case, we conclude that Dotson’s notice of
appeal was timely. See Fed. R. App. P. 4(a)(1)(B) (“When the United States . . .
is a party, the notice of appeal may be filed within 60 days after the judgment or
order appealed from is entered.”).

                                          6
have original jurisdiction of any action in the nature of mandamus to compel an

officer or employee of the United States or any agency thereof to perform a duty

owed to the plaintiff.” To be eligible for this relief, a petitioner must establish

“(1) that he has a clear right to relief, (2) that the respondent’s duty to perform

the act in question is plainly defined and peremptory, and (3) that he has no other

adequate remedy.” Rios v. Ziglar, 398 F.3d 1201, 1206 (10th Cir. 2005). We

review de novo whether the conditions for issuing a writ of mandamus are

satisfied. Marquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995). We

conclude that Dotson did not establish the requisite conditions for relief under 28

U.S.C. § 1361.

      Dotson’s argument regarding the order in which the federal and Georgia

state detainers were filed with the state of Kentucky does not evidence a clear

right to relief. “[T]he determination of custody and service of sentence between

[two different sovereigns] is a matter of comity to be resolved by the executive

branches of each sovereign.” Hernandez v. U.S. Att’y Gen., 689 F.2d 915, 917

(10th Cir. 1982). Federal and state authorities have broad discretion to determine

the order in which a prisoner may serve his sentences. See Hall v. Looney, 256

F.2d 59, 60 (10th Cir. 1958) (per curiam). Detainers are filed to assure that a

prisoner is not released from confinement until the jurisdiction asserting a right to

custody has had an opportunity to act. We could locate no authority for Dotson’s

proposition that the sequence in which detainers are filed dictates the order

                                           7
sentences are to be served. Thus, Dotson’s assertion that his federal detainer was

filed prior to his Georgia state detainer does not establish the requisite conditions

for relief pursuant to 28 U.S.C. § 1361.

      With regard to his argument that the federal and Georgia state sentences

were to run concurrently, we conclude that Dotson had another adequate remedy

available to him to pursue relief. As the government argues, Dotson could have

asserted this argument in a habeas petition pursuant to 28 U.S.C. § 2241. This

argument could be characterized as an attack on the execution of his federal

sentence. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“A petition

under 28 U.S.C. § 2241 attacks the execution of a sentence . . . .”); see also

United States v. Eccleston, 521 F.3d 1249 (10th Cir. 2008) (considering a state

prisoner’s argument that he was “entitled to serve his sentence in the custody of

the [Bureau of Prisons] and that his federal and state sentences must be served

concurrently” in a habeas petition under 28 U.S.C. § 2241). Further, Dotson

satisfies the “in custody” requirement for habeas purposes because “a prisoner

may challenge a sentence that was imposed consecutively to his current sentence

but which he has not yet begun to serve.” United States v. Miller, 594 F.3d 1240,

1242 (10th Cir. 2010) (internal quotation marks and alteration omitted). Because

Dotson could have asserted this argument in a petition under 28 U.S.C. § 2241, he

cannot establish the requisite conditions for relief pursuant to 28 U.S.C. § 1361.




                                           8
      B. Habeas petition under 28 U.S.C. § 2241

      We alternatively construe Dotson’s motion asserting that his federal and

Georgia state sentences should run concurrently as a challenge to the execution of

his federal sentence pursuant to 28 U.S.C. § 2241. 4 However, before we reach the

merits, we note that Dotson filed his motion in the wrong federal district. “A

petition under 28 U.S.C. § 2241 . . . must be filed in the district where the

prisoner is confined.” Bradshaw, 86 F.3d at 166 (emphasis added). Dotson is

currently incarcerated in the state of Georgia. Thus, the district court in the

Western District of Oklahoma lacked jurisdiction to consider this argument in a

28 U.S.C. § 2241 petition.

      The “jurisdictional defects that arise when a suit is filed in the wrong

federal district may be cured by transfer under the federal transfer statute, 28

U.S.C. § 1631, which requires a court to transfer such an action if the transfer is

in the interest of justice.” Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir.

2000) (internal quotation marks omitted). “Nonetheless, . . . a court is authorized

[first] to consider the consequences of a transfer by taking a peek at the merits to

avoid raising false hopes and wasting judicial resources that would result from


      4
         We note that, to the extent his motion is construed as a habeas petition
under 28 U.S.C. § 2241 challenging the execution of his federal sentence, Dotson
is not required to obtain a certificate of appealability to appeal the district court’s
denial of relief. See Miller, 594 F.3d at 1241 (explaining that a state inmate
challenging the execution of his federal sentence is not required to obtain a
certificate of appealability).

                                           9
transferring a case which is clearly doomed.” Id. (internal quotation marks

omitted).

      Based on our review of Dotson’s motion and of the record, we conclude

that a transfer is not in the interest of justice. “The exhaustion of available

administrative remedies is a prerequisite for [28 U.S.C.] § 2241 habeas relief . . .

.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). At no point does

Dotson assert, and the record provides no evidence, that he pursued the available

administrative relief within the Bureau of Prisons (BOP) prior to filing his motion

in the district court. According to BOP Program Statement 5160.05 § 8, a BOP

Regional Director may “designate a state institution for concurrent service of a

federal sentence” when “consistent with the intent of the federal sentencing court

or the goals of the criminal justice system.” 5 A prisoner may request that BOP

designate his state prison facility as the place of his federal confinement

regardless of whether he is in state or federal custody. See id. § 9(b)(4)(b) (“This

type of request will be considered regardless of whether the inmate is physically

located in either a federal or state institution.”); see also Eccleston, 521 F.3d at

1252 (discussing the BOP administrative relief that a state inmate pursued with

regard to his undischarged federal sentence). Because Dotson has not pursued



      5
        We note this BOP Program Statement only to suggest an avenue for
exhaustion. We are not ruling on the merits of Dotson’s contention that his
federal and Georgia state sentences are to run concurrently.

                                          10
available administrative remedies, habeas relief pursuant to 28 U.S.C. § 2241

cannot be granted. Thus, we conclude that a transfer of his motion is not in the

interest of justice.

                               III. CONCLUSION

       Construing Dotson’s motion as a habeas petition under 28 U.S.C. § 2241,

we reverse and remand to the district court with instructions to vacate its denial of

the relief requested and to dismiss the motion without prejudice.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Chief Judge




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