Shelton v. United States of America

Filing 2

MEMORANDUM OPINION - Sheltons Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (doc. 1 ; Crim. Doc. 64), will be denied, and his Petition will be dismissed with prejudice. A Certificate of Appealability will not issue. Sheltons Request for Instant Service of Pending Federal Sentence, (crim. doc. 60); Demand for Disposition of Federal Detainer, (crim. docs. 61 and 62); and Request to Apply Jail Credits and Lift Detainer, (crim. doc. 63), will be denied. Signed by Judge Sharon Lovelace Blackburn on 12/4/2018. (KEK)

FILED
2018 Dec-04 PM 03:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DWIGHT ROLLAND SHELTON, JR.,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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) Case No. 5:17-CV-8043-SLB
) Crim. Case No. 5:10-CR-0129-SLB-HNJ
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MEMORANDUM OPINION
This case is currently pending before the court on Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, hereinafter “Motion
to Vacate,” filed by petitioner Dwight Rolland Shelton, Jr.. (Doc. 1; crim. doc. 64).1 Shelton
seeks credit for time served pre-sentencing and he seeks release of the federal detainer filed
against him. Shelton has also filed a Request for Instant Service of Pending Federal
Sentence, (crim. doc. 60); Notices of Demand for Disposition of Federal Detainer, (crim.
docs. 61 and 62); and a letter requesting the court apply jail credits and lift the federal
detainer, (see crim. doc. 63).
First, the court notes that Shelton’s remedy does not lie with § 2255 Motion to Vacate.
Second, any habeas petition under § 2241 is premature and, when ripe, must be filed in the

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Citations to documents in the court’s record of in petitioner’s Motion to Vacate
appear as “(Doc. __).” Citations to documents in the court’s record in the criminal
proceedings against petitioner, Case No. 5:10-CR-0129-SLB-HNJ, appear as “(Crim. Doc.
__).” Page number citations refer to the page numbers assigned to the document by the
court’s CM/ECF electronic filing system.

district of incarceration, not in the court of conviction. Once Shelton begins his federal
sentence, he must exhaust all BOP administrative remedies before filing a § 2241 habeas
petition in the federal district court, and such § 2241 petition must be filed in the district
court for the jurisdiction within which he is imprisoned.
Moreover, the court notes that the detainer is properly filed. This court sentenced
Shelton to a total of 29 months – 17 months to be served concurrently with his state sentence
and 12 months to be served consecutively – or after completion of both his concurrent federal
and state sentences. As he is currently serving his California state sentence, his consecutive
sentence of 12 months remains to be served. It is the duty of the United States Attorney
General, acting through the BOP, to determine the amount of credit due for the time served
by the defendant prior to sentencing; this court does not determine the amount of jail credit
due an inmate. United States v. Alexander, 609 F.3d 1250, 1259 (11th Cir. 2010); 18 U.S.C.
§ 3585.
Shelton’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody, (doc. 1; Crim. Doc. 64), will be denied, and his Petition will
be dismissed with prejudice. A Certificate of Appealability will not issue. Shelton’s Request
for Instant Service of Pending Federal Sentence, (crim. doc. 60); Demand for Disposition of
Federal Detainer, (crim. docs. 61 and 62); and Request to Apply Jail Credits and Lift
Detainer, (crim. doc. 63), will be denied.

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CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2255 Proceedings, provides, “The district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” The applicant for § 2255 relief “cannot take an appeal unless a circuit justice or
a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”
Fed. R. App. P. 22(b)(1). And, the “certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2)(emphasis added).

To make a substantial showing of the denial of a

constitutional right, the applicant must show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)(citations and internal quotations omitted).
Shelton is not entitled to habeas relief; reasonable jurists could not disagree. He has
not demonstrated that any issue he raises is reasonably debatable and/or deserves
encouragement to proceed further. Therefore, issuance of a certificate of appealability is not
warranted in this case.
DONE, this 4th day of December, 2018.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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