CLD-373                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-2304
                                      ___________

                               CLEVELAND HOWARD,
                                             Appellant
                                       v.

                         ARCHIE B. LONGLEY, WARDEN
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                          (W.D. Pa. Civ. No. 1-12-cv-00037)
                    District Judge: Honorable Sean J. McLaughlin
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
         Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                    August 8, 2013

             Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                            (Opinion filed: August 27, 2013)
                                       _________

                                       OPINION
                                       _________



PER CURIAM

      Pro se appellant Cleveland Howard seeks review of the District Court’s denial of

his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Because the

appeal does not present a substantial question, we will summarily affirm.

                                            1
       Howard is a federal inmate, who filed a habeas corpus petition claiming that the

Federal Bureau of Prisons (“BOP”) erred in computing his sentence. The relevant facts

are not in dispute. Howard was arrested in 2004 on state charges related to a robbery

committed in Cincinnati. He was sentenced to three years in prison in January 2005. In

October 2005, Howard pleaded guilty to federal conspiracy and firearm charges. One

conspiracy charge related to the Cincinnati robbery; the remaining conspiracy charges

related to other robberies. The plea agreement provided that Howard would receive a

sentence of seventeen years in prison.

       On January 11, 2006, Howard was sentenced to a seventeen-year term in federal

prison. At the hearing, defense counsel asked if the federal sentence would run

concurrently with the state sentence. After ascertaining that Howard had about eleven

months left on his state sentence, the District Judge replied that the sentences would run

concurrently and that the remaining eleven months would thus count toward Howard’s

federal sentence. The subsequent order reflected this decision by recommending to the

BOP that a portion of Howard’s sentence be served concurrently with his state sentence.

Howard, who was appearing in federal court subject to a writ of habeas corpus ad

prosequendum, was returned to state custody. He remained there until he was released to

serve his federal sentence on December 12, 2006. The BOP determined that Howard’s

federal sentence commenced on the day it was imposed, January 11, 2006. The BOP

gave him one day of prior custody credit and fifty-seven days of credit pursuant to Willis

v. United States, 438 F.2d 923 (5th Cir. 1971). According to the BOP, Howard has a

projected release date of September 5, 2020.

                                               2
       After challenging the computation of his sentence with the BOP, Howard filed a

habeas corpus petition claiming that all time served on his state sentence should have

counted against his federal sentence. The District Court denied the petition, concluding

that Howard’s sentence was correctly computed. After the District Court denied his

motion for reconsideration,1 Howard appealed.

       Howard’s challenge to the BOP’s computation of his sentence is properly brought

in a § 2241 petition. See United States v. Grimes, 641 F.2d 96, 99 (3d Cir. 1981). We

have jurisdiction under 28 U.S.C. § 1291. We exercise de novo review over the denial of

the petition. See Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007). The BOP is

responsible for computing a federal prisoner’s period of incarceration under applicable

federal law. See United States v. Wilson, 503 U.S. 329, 334-35 (1992). In calculating

the sentence, the BOP determines (1) when the federal sentence commenced, and (2)

whether there are any credits to which the prisoner may be entitled. See 18 U.S.C.

§ 3585.

       In this case, the BOP correctly determined that, pursuant to 18 U.S.C. § 3585(a),

Howard’s sentence commenced on January 11, 2006, the date it was imposed. In making

this determination, the BOP relied on guidelines that direct that the sentence for an

inmate begins on the day it was imposed when the inmate, like Howard, (1) is in the

primary custody of the state when his federal sentence is imposed, and (2) the court


1
  Howard sought reconsideration on the basis that the District Court might not have considered
his objections to the Magistrate Judge’s Report and Recommendation. The court denied
reconsideration because it had considered his objections, as reflected in the order denying the
petition.
                                                3
orders the sentence to run concurrently with the state sentence. See Fed. Bureau of

Prisons, Program Statement 5880.28, Sentence Computation Manual 1-13, 1-32A-33

(1999). This is the earliest possible date that Howard’s sentence could have commenced

because a sentence cannot start earlier than the day it was imposed. Id. at 1-13; see also

United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980) (“[A] federal sentence cannot

commence prior to the date it is pronounced, even if made concurrent with a sentence

already being served.”) Howard nonetheless argues that his federal sentence should have

commenced before it was imposed – at the start of his state sentence – relying on Barden

v. Keohane, 921 F.2d 476 (3d Cir. 1990). Barden is of no help, however, because it

involved the opposite sentencing situation: i.e., Barden’s federal sentence was imposed

before his state sentence. Id. at 478. Barden thus did not involve the question of whether

a federal sentence could commence before it was imposed. The simple fact here is that

Howard received what the sentencing court recommended: the approximately eleven

months remaining on his state sentence also counted against his federal sentence because

the BOP ran his sentence concurrently with the state sentence from the day the federal

sentence was imposed.2

       Howard also argues that the sentencing court erred by not applying § 5G1.3 of the

United States Sentencing Guidelines to adjust his sentence for all time served on the state

sentence. The District Court concluded that Howard could not bring the claim in a


2
  Although Howard does not challenge the BOP’s computation of credits against his sentence,
we note that he cannot receive credit for the time served on his state sentence prior to the
commencement of his federal sentence because 18 U.S.C. § 3585(b)(2) does not allow an inmate
to receive such double credit. See Wilson, 503 U.S. at 337.
                                             4
§ 2241 petition. We agree. A challenge under the Sentencing Guidelines goes to the

validity of a sentence, rather than the execution of a sentence, and is thus inappropriate

for a § 2241 petition. See United States v. Eakman, 378 F.3d 294, 297 (3d Cir. 2004).

Howard could have presented this challenge in a motion under 28 U.S.C. § 2255, and he

has not met the criteria for demonstrating that the remedy provided by § 2255 is

inadequate or ineffective. See In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997).

       For these reasons, we will summarily affirm the District Court’s orders denying

Howard’s habeas corpus petition and his motion for reconsideration. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6.




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