                                                 [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________             FILED
                                                U.S. COURT OF APPEALS
                           No. 09-15696           ELEVENTH CIRCUIT
                                                     AUGUST 13, 2010
                       Non-Argument Calendar
                                                       JOHN LEY
                     ________________________
                                                        CLERK

             D. C. Docket Nos. 09-00200-CV-OC-10-GRJ


CURTIS LEE WATSON,



                                                  Petitioner-Appellant,

                              versus

UNITED STATES OF AMERICA,

                                                 Respondent-Appellee.

                     ________________________

                           No. 09-15697
                       Non-Argument Calendar
                     ________________________

             D. C. Docket No. 09-00112-CV-OC-10-GRJ

CURTIS LEE WATSON,



                                                  Petitioner-Appellant,
                                         versus

WARDEN, FCC COLEMAN - USP-1,

                                                                 Respondent-Appellee.

                            ________________________

                    Appeals from the United States District Court
                         for the Middle District of Florida
                          _________________________

                                   (August 13, 2010)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Curtis Lee Watson is a federal prisoner under a criminal sentence imposed

by the Superior Court for the District of Columbia. Watson pro se appeals the

district court’s dismissal with prejudice of his two habeas corpus petitions, filed

pursuant to 28 U.S.C. § 2241. The district court’s dismissal orders found Watson’s

§ 2241 petitions were “frivolous, successive and an abuse of the writ” because the

district court “repeatedly has advised Petitioner that there is no jurisdiction to

entertain his Petitions unless Petitioner can show that his local remedies are

inadequate and ineffective to test the legality of his detention.” The district court

cited the jurisdiction-stripping provision in D.C. Code § 23-110(g). After review,

we vacate and remand for further proceedings consistent with this opinion.

                                            2
                                I. BACKGROUND

      Before discussing Watson’s § 2241 petitions, it is helpful to set forth his

convictions and the D.C. Code § 23-110(g) relied upon by the district court.

A.    Convictions and Sentences

      In 1978 in the D.C. Superior Court, Watson was convicted of first degree

murder and carrying a pistol without a license, for which he was sentenced to a

mandatory-minimum 20-year term, and two counts of assault with the intent to kill,

for which he was sentenced to two consecutive five-year terms, for a total thirty-

year sentence. Watson began serving his sentence in D.C.’s Lorton Correctional

Facility (“Lorton”). In 1988, Watson pled guilty to a charge of escape and was

given a five-year sentence. In 2001, D.C.’s Lorton prison was closed, and Watson

was transferred to the custody of the Bureau of Federal Prisons (“BOP”). Watson

is currently housed at Federal Correctional Complex (“FCC”) Coleman in the

Middle District of Florida. Watson claims he has completed his thirty-year D.C.

sentence and should be released.

B.    D.C. Code § 23-110(g)

      Prisoners who are convicted and sentenced by the D.C. Superior Court may

seek collateral review pursuant to D.C. Code § 23-110, which is comparable to the

review authorized by 28 U.S.C. § 2255. See Swain v. Pressley, 430 U.S. 372, 375-



                                          3
78, 97 S. Ct. 1224, 1226-28 (1977); Alston v. United States, 590 A.2d 511, 513

(D.C. 1991).1 Under § 23-110(g), federal courts are without jurisdiction to

entertain collateral challenges to a conviction or sentence imposed by the D.C.

Superior Court unless the prisoner has shown that the remedy under § 23-110 is

“inadequate or ineffective to test the legality of the detention.” D.C. Code § 23-

110(g); accord Swain, 430 U.S. at 377-78 & n.10, 97 S. Ct. at 1227-28 & n.10;

Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998) (stating that this

provision is a “safety-valve”). However, § 23-110(g) does not bar federal court

review of a 28 U.S.C. § 2241 petition challenging the length, as opposed to the

legality, of the prisoner’s sentence. Blair-Bey, 151 F.3d at 1043; Alston, 590 A.2d

at 514.

C.         Six Prior § 2241 Petitions Challenging BOP’s Calculations



       1
       Section 23-110 states in relevant part:
      (a) A prisoner in custody under sentence of the Superior Court claiming the right to
      be released upon the ground that (1) the sentence was imposed in violation of the
      Constitution of the United States or the laws of the District of Columbia, (2) the
      court was without jurisdiction to impose the sentence, (3) the sentence was in excess
      of the maximum authorized by law, (4) the sentence is otherwise subject to collateral
      attack, may move the court to vacate, set aside, or correct the sentence.
      ....
      (g) 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 by the Superior Court or by any Federal or State court if it appears that
      the applicant has failed to make a motion for relief under this section or that the
      Superior 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.
D.C. Code § 23-110(a), (g).

                                                4
       Between 2003 and 2008, Watson filed six § 2241 petitions challenging the

BOP’s calculation of his sentence upon transfer to FCC Coleman and the

determination of his parole eligibility date. These six § 2241 petitions challenging

the BOP’s calculations were dismissed as follows: (1) a 2003 petition dismissed

without prejudice for failure to exhaust administrative remedies with the BOP; (2)

two 2004 petitions dismissed with prejudice on the grounds that the issues

presented would be determined pending the district court’s resolution of the 2003

petition; (3) a 2004 petition dismissed without prejudice for failure to prosecute;

(4) a 2005 petition dismissed without prejudice because Watson still had not fully

exhausted his administrative remedies with the BOP; and (5) a 2008 petition

dismissed without prejudice for failure to pay the filing fee. The merits of

Watson’s challenge to the BOP’s calculations were never addressed in the district

court’s first six dismissals.

D.     Seventh § 2241 Petition Challenging Escape Conviction

       In 2008, Watson filed a seventh § 2241 petition that touched on his parole

eligibility. However, the gravamen of this claim related to Watson’s 1988

conviction for escape while housed at Lorton. Watson claimed he was innocent of

the escape charge and was set up because, while a trustee at Lorton, he refused to

go along with a scheme to bring drugs into the prison. Watson alleged that he was



                                           5
not advised at the time he pled guilty to the escape charge that it would affect his

parole eligibility date.

       The district court dismissed this seventh § 2241 petition as frivolous,

successive and an abuse of the writ. The district court noted that Watson had filed

twelve cases since 2001 “most of which have pertained to the same conviction and

sentence.” The district court cited three prior cases in which Watson challenged

the constitutionality of his murder conviction on the ground that he was not

presented with an indictment. These three earlier cases had been dismissed with

prejudice as improper attacks on the validity of Watson’s conviction and sentence.2

In dismissing the seventh § 2241 petition, the district court stated that it did not

have jurisdiction to entertain the petition unless Watson showed that his “local

remedies were inadequate or ineffective to test the legality of his detention” and

cited D.C. Code § 23-110(g). Watson’s seventh petition did not challenge the

BOP’s calculation of his parole eligibility and release dates.

E.     Two § 2241 Petitions on Appeal

       In 2009, Watson filed the two § 2241 petitions at issue in this appeal. In


       2
         In the first of these prior cases, the district court dismissed Watson’s § 2241 petition
with prejudice as an improper attack on the legality of his conviction and sentence. The district
court noted that Watson had not alleged or established that his local remedies were inadequate or
ineffective. In the second cited case, the district court dismissed the petition with prejudice as
frivolous, successive and an abuse of the writ. The third cited case, the district court dismissed
with prejudice Watson’s petition for a writ of error coram nobis.

                                                6
these § 2241 petitions, Watson alleged that the BOP had miscalculated his release

date and parole eligibility when he was transferred to federal custody.3 According

to Watson, the BOP’s calculations violated BOP Program Statement 5880.32,

which governs the computation of sentences for D.C. inmates. Watson attached a

copy of a motion for a corrected “face sheet,” dated August 10, 2008, which he

said he had filed with the D.C. Superior Court, but for which he had received no

response. Watson contended he had exhausted his administrative appeals and

attached a copy of an administrative remedy report indicating that Watson had filed

multiple administrative claims that his parole eligibility date and thirty-year prison

term are incorrectly calculated.

       Prior to service on and response from the government, the district court

dismissed Watson’s § 2241 petitions with prejudice. The district court stated that

Watson repeatedly had been advised that the district court lacked jurisdiction

absent a showing that the remedies afforded by D.C. Code § 23-110 were

inadequate or ineffective to test the legality of Watson’s detention. The district

court identified the same three prior cases in which Watson challenged the



       3
         Watson filed these two § 2241 petitions within a few days of each other, one in the
Middle District of Florida and the other in the U.S. District Court for the District of Columbia.
The latter was then transferred to the Middle District of Florida. Both § 2241 petitions generally
alleged that the BOP had miscalculated Watson’s parole eligibility and release dates in violation
of BOP policy.

                                                7
constitutionality of his murder conviction. However, as pointed out above, Watson

did not challenge the BOP’s calculation of his release and parole eligibility dates in

these three prior cases. Watson filed this consolidated appeal.

                                     II. DISCUSSION

       Because the assessment of jurisdiction lies at the heart of the district court’s

conclusion that Watson’s current § 2241 petitions were frivolous, successive and

an abuse of the writ, we first address whether the district court lacked jurisdiction

to entertain Watson’s § 2241 claims.4 Watson’s current § 2241 petitions do not

challenge the legality of his convictions or sentence. Rather, Watson claims that

his release and parole eligibility dates were miscalculated. Thus, Watson’s claims

go to the duration of his sentence, not to the validity of his conviction or sentence.

As such, Watson’s claims are cognizable under § 2241. See Preiser v. Rodriguez,

411 U.S. 475, 500, 93 S. Ct. 1827, 1841 (1973) (stating that habeas corpus is the

sole remedy available to prisoners challenging the duration of confinement and

demanding immediate release); Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d

1348, 1352 (11th Cir. 2008) (“[C]hallenges to the execution of a sentence, rather

than the validity of the sentence itself, are properly brought under § 2241”).

       We also conclude that D.C. Code § 23-110(g) does not bar a federal court


       4
       “The availability of habeas relief under 28 U.S.C. § 2241 is a question of law” reviewed
de novo. Dohrmann v. United States, 442 F.3d 1279, 1280 (11th Cir. 2006).

                                               8
from reviewing Watson’s BOP calculation claims. Section 23-110(g) bars federal

review of only those claims that could have been raised through § 23-110(a).

Section 23-110(a) provides D.C. inmates with an avenue to challenge their

convictions and sentence, much like 28 U.S.C. § 2255 does for federal inmates.

Since Watson’s current BOP calculation claims do not challenge his conviction or

sentence, they could not have been brought under § 23-110(a). See Blair-Bey, 151

F.3d at 1043 (concluding that D.C. inmate’s challenge to the procedures for

determining parole was a claim that could not have been brought under D.C. Code

§ 23-110(a) and thus not barred from federal court review by § 23-110(g)); Alston,

590 A.2d at 514 (“Whatever their legal merit, these contentions, like claims by

other prisoners challenging the computation of a sentence, may not be raised under

§ 23-110” and “must be raised in a habeas corpus petition . . .”). Therefore, to the

extent the district court’s frivolity determination was based on a lack of

jurisdiction, the district court’s conclusion was erroneous.

      Furthermore, Watson’s § 2241 petitions were not successive. For a § 2241

petition to be barred as successive under 28 U.S.C. § 2244(a), the same claims

must have been raised and adjudicated on the merits in the petitioner’s prior habeas

proceedings. Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6, 106 S. Ct. 2616, 2622

n.6 (1986) (plurality opinion); Antonelli, 542 F.3d at 1352; Glumb v. Honsted, 891



                                           9
F.2d 872, 873 (11th Cir. 1990). The district court’s rulings on Watson’s six prior §

2241 petitions challenging the calculation of his parole eligibility and release dates

were not adjudications on the merits. See Stewart v. Martinez-Villareal, 523 U.S.

637, 643-45, 118 S. Ct. 1618, 1621-22 (1998) (explaining that a second § 2254

habeas petition is not successive under § 2244(b) if the first § 2254 petition was

dismissed as premature or for failure to exhaust because such dismissals are not

adjudications on the merits); Walker v. Crosby, 341 F.3d 1240, 1245 n.4 (11th Cir.

2003) (noting that a subsequent § 2254 petition was not successive when the first

petition was dismissed without prejudice for failure to exhaust state remedies).

Watson’s seventh § 2241 petition, pertaining to his escape conviction, raised a

different claim.5

        Finally, Watson’s § 2241 petitions were not properly dismissed as an abuse

of the writ. Under the abuse-of-the-writ doctrine, a federal court may dismiss a

subsequent petition when “ a prisoner files a petition raising grounds that were

available but not relied upon in a prior petition, or engages in other conduct that

disentitles him to the relief he seeks.” Kuhlmann, 477 U.S. at 444, n. 6, 106 S. Ct.



        5
        On this record, it is unclear what effect Watson’s escape conviction had on the BOP’s
computations. We do not address that issue. Whether and to what extent Watson’s sentence for
the escape conviction properly affected the BOP’s computation of Watson’s parole eligibility
and release dates is for the district court to address in the first instance should it reach the merits
of Watson’s claims.

                                                  10
2622 n.6 (quotation marks and alteration omitted). Initially, “the government bears

the burden of pleading abuse of the writ,” by “not[ing] petitioner’s prior writ

history, identif[ying] the claims that appear for the first time, and alleg[ing] that

petitioner has abused the writ.” McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.

Ct. 1454, 1470 (1991). If the government satisfies its pleading burden, the burden

shifts to the petitioner to disprove abuse by showing cause for his failure to raise

the claim earlier and prejudice. Id. Here, the government has not yet had an

opportunity to respond to Watson’s petition, much less plead abuse of the writ, and

Watson has not had a chance to show cause or prejudice. Therefore, dismissal for

abuse of the writ was not warranted.

       On appeal, the government asks this Court to affirm the district court’s

ruling because Watson has not exhausted his administrative remedies with the

BOP. The district court did not consider whether Watson exhausted the BOP’s

administrative remedy process. Watson submitted documents showing that he has

filed administrative claims as to the BOP’s calculation of his parole eligibility and

release dates. But, the government points out that a document attached to

Watson’s appeal brief indicates that his administrative appeal was denied on

September 3, 2009, after he filed the instant § 2241 petitions. However, this kind

of fact-intensive inquiry is properly directed to the district court in the first



                                            11
instance. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward

Cnty., 450 F.3d 1295, 1306-07 (11th Cir. 2006).

       Accordingly, we vacate the district court’s dismissal of these two § 2241

petitions and remand for the district court to allow both parties to brief the

government’s exhaustion claims and for further proceedings consistent with this

opinion.

      VACATED and REMANDED.




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