Dotstry v. Fisher
Filing
13
MEMORANDUM OPINION AND ORDER Adopt Report and Recommendation 9 Report and Recommendation. (Written Opinion). Signed by Judge John R. Tunheim on December 6, 2013. (DML) cc: Dotstry on 12/6/2013 (jam).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
KENDRICK LEDELLE DOTSTRY,
Civil No. 13-1424 (JRT/JJK)
Petitioner,
v.
MR. SCOTT FISHER & SUCCESSOR,
MEMORANDUM OPINION AND
ORDER ADOPTING THE REPORT
AND RECOMMENDATION OF THE
MAGISTRATE JUDGE
Respondent.
Kendrick Ledelle Dotstry, No. 091996-041, Federal Correctional Institution
– Sandstone, Post Office Box 1000, Sandstone, MN 55072, pro se.
Gregory G. Brooker and Pamela Marentette, Assistant United States
Attorneys, UNITED STATES ATTORNEY’S OFFICE, 600 United
States Courthouse, 300 South Fourth Street, , Minneapolis, MN 55415, for
respondent.
Petitioner Kendrick Ledelle Dotstry objects to a Report and Recommendation
(“R&R”) filed August 13, 2013, by United States Magistrate Judge Jeffrey J. Keyes. The
Magistrate Judge recommended that this Court deny Dotstry’s habeas petition and
dismiss his case because this Court does not have the jurisdiction to consider it. Dotstry
objects to the R&R’s determination that this Court lacks jurisdiction. Because the R&R
correctly determined that, absent a motion to reduce Dotstry’s sentence from the Bureau
of Prisons, this Court lacks jurisdiction under 28 U.S.C. § 2241 and will dismiss this case.
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BACKGROUND
In 2009, Dotstry pled guilty to Conspiracy to Distribute Cocaine and Cocaine
Base. On October 6, 2009, this Court sentenced Dotstry to 90 months in prison. (Crim.
No. 08-344(3), Sentencing Judgment, Oct. 9, 2009, Docket No. 155.)
Dotstry is
incarcerated at the Federal Correctional Institution in Sandstone, Minnesota.
In 2012, Dotstry asked this Court to reduce his sentence under 18 U.S.C.
§ 3582(c)(2). (Crim. No. 08-344(3), Pro Se Mot., Feb. 10, 2012, Docket No. 170.)
Section 3582(c) delineates the situations when a court may modify a term of
imprisonment after it has been imposed, and § 3582(c)(2) permits a court to reduce a
defendant’s sentence when the guideline range applicable to that defendant has been
subsequently lowered as a result of an amendment to the Guidelines Manual.
On
February 22, 2012, Dotstry’s motion under § 3582(c) was denied because the Guideline
range for Dotstry remained unchanged. (Crim. No. 08-344(3), Order, Feb. 22, 2012,
Docket No. 175.)
Dotstry again alleges that he is eligible for a sentence reduction, but in his present
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, he seeks an order
compelling the Director of the Bureau of Prisons (“BOP”) to file a motion requesting the
reduction in his sentence. Although § 3582(c)(1)(A), provides that “upon motion of the
Director of the Bureau of Prisons,” the Court “may reduce the term of imprisonment,” the
Director of the BOP has not filed any motion on behalf of Dotstry. The R&R concluded
that the Court lacks jurisdiction under 28 U.S.C. § 2241 to consider Dotstry’s motion
because, in the absence of a motion from the BOP, the Court has no authority to alter
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Dotstry’s sentence. Dotstry objects to the R&R’s determination that the Court lacks
jurisdiction.1
ANALYSIS
The basic purpose of habeas corpus is to allow “an attack by a person in custody
upon the legality of that custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
Habeas corpus is a proper remedy under § 2241 only where the petitioner challenges the
validity of his conviction or the duration of his confinement. Id. at 490; Kruger v.
Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996). Jurisdiction over a petitioner’s § 2241
claim thus hinges on whether the petition is properly characterized as a challenge to the
duration of confinement.
The Eighth Circuit has not decided the precise question of whether jurisdiction
exists over a § 2241 petition challenging the BOP’s decision not to file a motion under
§ 3582(c)(1)(A). This Court has previously found, however, that no jurisdiction exists
over the BOP’s denial of compassionate release under § 3582(c)(1)(A), Gutierrez v.
Anderson, Civ. No. 06-1714, 2006 WL 3086892, at *2 (D. Minn. Oct. 30, 2006) and the
Court is persuaded by this decision. The Court, thus agrees with the Magistrate Judge’s
conclusion that § 2241 does not confer jurisdiction over Dotstry’s claim.
Even if Dotstry’s challenge were proper under § 2241, § 3582(c)(1)(A)
specifically bars the Court from reviewing the BOP’s decision not to file a motion
1
Dotstry also objects to the R&R’s conclusion that he failed to exhaust his administrative
remedies. But the R&R offered no opinion regarding Dotstry’s failure to exhaust his
administrative remedies. (R&R at 7 n.2.)
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seeking a reduced sentence. See Gutierrez, 2006 WL 3086892, at *2 (“Because [the]
BOP declined to file a motion to reduce petitioner’s term of imprisonment, the Court has
no statutory authority to consider petitioner’s request for compassionate release.”).2
Dotstry argues that this Court has jurisdiction because a court has the authority “to
consider whether the BOP’s discretionary decisions . . . are justified.” (Pet.’s Obj. at 1,
Aug. 28, 2013, Docket No. 10 (quoting Roberson v. Copenhaven, No. 1:12-CV-01074,
2013 WL 2286112, at *7 (E.D. Cal. May 23, 2013).) But Roberson states that a court has
the jurisdiction “to consider whether the BOP’s discretionary decisions vis-à[-]vis a nunc
pro tunc request are justified.” Roberson, 2013 WL 2286112, at *7 (emphasis added).
As used in Roberson, a nunc pro tunc request is a request for the BOP to designate a state
prison as the facility for service of a federal sentence when a prisoner’s state and federal
sentences are running concurrently. See id.; see also Reynolds v. Thomas, 603 F.3d 1144,
1150 (9th Cir. 2010). A court’s authority to consider a BOP’s discretionary decision
regarding a nunc pro tunc request has no bearing on its authority to review a BOP
decision not to file a motion seeking a reduced sentence under § 3582(c)(1)(A).
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES Dotstry’s objections [Docket No. 10] and ADOPTS the Magistrate
Judge’s Report and Recommendation dated August 13, 2013 [Docket No. 9]. Therefore,
2
See also Todd v. Fed. Bureau of Prisons, 31 F. App’x 833 (5th Cir. 2002); Fernandez v.
United States, 941 F.2d 1488, 1492-93 (11th Cir. 1991); Simmons v. Christensen, 894 F.2d 1041,
1043 (9th Cir. 1990); Turner v. United States Parole Comm’n, 810 F.2d 612, 618 (7th Cir. 1987).
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IT IS HEREBY ORDERED that Kendrick Ledelle Dotstry’s Petition for Writ of
Habeas Corpus [Docket No. 1] is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: December 6, 2013
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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