                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-2006

USA v. Doe
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3972




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Recommended Citation
"USA v. Doe" (2006). 2006 Decisions. Paper 323.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/323


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                                                           NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                         No. 05-3972


                             UNITED STATES OF AMERICA

                                               v.

                                         JOHN DOE,
                                                Appellant


                        Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                             (D.C. Criminal No. 00-cr-00380)
                            District Judge: Hon. James T. Giles



                                Argued: September 27, 2006

                     Before: MCKEE and AMBRO, Circuit Judges and
                                 RESTANI*, Judge

                                  (Filed October 16, 2006)


                                OPINION OF THE COURT


Jerry S. Goldman, Esq. (Argued)
Jerry S. Goldman & Associates
1500 John F. Kennedy Boulevard
Two Penn Center Plaza, Suite 1411
Philadelphia, PA 19102
       Attorney for Appellant


* Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade,
sitting by designation.
Roberta Benjamin, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Attorney for Appellee


PER CURIAM

        The Petitioner appeals the district court’s denial of his Motion to Vacate, Set

Aside, or Correct the Sentence that he filed pursuant to 28 U.S.C. § 2255. For the reasons

that follow, the appeal will be dismissed.

        Inasmuch as we are writing only for the parties who are familiar with this

litigation, we need not repeat the factual or procedural background. Doe’s claim arises

from the manner in which time served on his state sentence for a violation of probation

was credited to his federal sentence. Accordingly, despite his attempt to frame his

argument as an attack on the constitutionality and legality of his federal sentence, he is

clearly challenging the execution of his federal sentence, not its legality. Accordingly, his

petition should have been filed pursuant to 28 U.S.C. § 2241. See United States v.

Kennedy, 851 F.2d 689, 690 (3d Cir. 1988). As noted above, he seeks relief under §

2255.

        A petition under § 2241 must be filed with the federal district court where a

prisoner is incarcerated, not where he/she was originally sentenced. Id. Although

counsel has represented that Doe is currently in the Eastern District of Pennsylvania, it is

not disputed that he was not incarcerated there when he filed the instant habeas petition.

Rather, he was then incarcerated in North Carolina.
       Moreover, a prisoner seeking habeas relief under 28 U.S.C. § 2241 must exhaust

administrative remedies before petitioning the district court. See Kennedy, 851 F.2d at

691. Petitioner did not exhaust the administrative remedies available to him before filing

the instant petition for habeas relief. Accordingly, neither this court, nor the District

Court for the Eastern District of Pennsylvania, has subject matter jurisdiction to hear

Petitioner’s challenge to his federal sentence, and we will therefore dismiss his appeal for

lack of jurisdiction.




* Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade,
sitting by designation.
