Johnson v. USA

Filing 7

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner Timothy Johnsons motion for leave to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge Henry Edward Autrey on 6/2/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIMOTHY D. JOHNSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 4:17CV1375 HEA

MEMORANDUM AND ORDER
This matter is before the Court upon petitioner Timothy Johnson’s motion for leave to
proceed in forma pauperis. (Docket No. 2). Upon review, the Court has determined that
petitioner is unable to pay the filing fee, and will grant the motion. In addition, the Court will
dismiss the petition, without prejudice, due to petitioner’s failure to exhaust his administrative
remedies.
Petitioner commenced this action on April 21, 2017. He submitted his pleading on a
form used for bringing claims under 28 U.S.C. § 2255. The Court noted that petitioner’s claim
related to the execution of a sentence imposed by this United States District Court, and was
therefore most appropriately brought under 28 U.S.C. § 2241. The Court allowed petitioner to
submit an amended petition. In so doing, the Court noted that it did not appear that petitioner
had first presented his claim to the Bureau of Prisons “(BOP”), and advised him that exhaustion
of administrative remedies was a prerequisite to filing a habeas action in this Court.
Petitioner filed an amended petition on May 15, 2017.

Therein, he reiterated the

assertions from the original petition, that the BOP failed “to start sentence as ordered by judge”
during his supervised release revocation hearing on June 28, 2016, and raised a single ground for

relief: that the BOP failed to start his sentence “immediately and forthwith,” as ordered by this
Court. (Docket No. 6 at 2, 6).1 He raised no other ground for relief.
Petitioner admits that he did not request relief from the BOP before filing the instant
action. (Id. at 2). “A prisoner may bring a habeas action challenging the BOP’s execution of his
sentence only if he first presents his claim to the BOP.” Mathena v. United States, 577 F.3d 943,
946 (8th Cir. 2009) (citing United States v. Chappel, 208 F.3d 1069 (8th Cir. 2000) (per curiam)
and Rogers v. United States, 180 F.3d 349, 357 (1st Cir. 1999)). Due to petitioner’s failure to
present his claim to the BOP, this case should be dismissed without reaching the merits of his
claim. See United States v. Thompson, 297 Fed. App’x. 561, 562 (8th Cir. 2008) (holding that
the district court erred when it considered a § 2241 petition on the merits when the petitioner did
not demonstrate that he had first presented his claim to the BOP). This dismissal will be without
prejudice to refiling after petitioner has exhausted his administrative remedies with the BOP. In
sum, petitioner is advised that he should seek administrative relief from the BOP. If and when
the BOP denies him relief, he may seek review in the proper court pursuant to 28 U.S.C. § 2241.
Finally, because petitioner has not made a substantial showing that issues are debatable
among reasonable jurists, that a court could resolve this issue differently, or that the issue
deserves further proceedings, the Court will not issue a certificate of appealability. See Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997).
Accordingly,
IT IS HEREBY ORDERED that petitioner Timothy Johnson’s motion for leave to
proceed in forma pauperis (Docket No. 2) is GRANTED.

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Petitioner also states that he challenges the validity of his conviction or sentence as imposed, but in describing the
basis for such challenge, states that the Federal Bureau of Prisons failed to start his sentence as ordered by the judge.
It is therefore clear that petitioner is attacking the execution of his sentence, not the validity of the sentence itself.

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IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. A
separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
Dated this 2nd day of June, 2017

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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