FARMER v. WARDEN OF THE MORRISON CORRECTIONAL INSTITUTION, NORTH CAROLINA

Filing 3

MEMORANDUM AND ORDER. This Court construes Petitioner's motion under 28 U.S.C. § 2255 as a petition under 28 U.S.C. § 2241; substituting the Warden of the Morrison Correctional Institution, North Carolina as the respondent; directing the Clerk to transfer this matter to the USDC, Middle District of North Carolina; directing the Clerk to CLOSE this matter. Signed by Judge Joseph H. Rodriguez on 1/21/2016. (drw)n.m. [Transferred from New Jersey on 1/21/2016.]

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

LEROY S. FARMER,
Petitioner,
v.
WARDEN, MORRISON CORR.
INST., NORTH CAROLINA
Respondent. 1

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Civ. Action No. 15-6703 (JHR)

MEMORANDUM AND ORDER

Rodriguez, District Judge:
This matter is before the Court upon Petitioner’s motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence. (ECF No. 1.) For the reasons discussed below, the
Court will construe the motion as a petition for writ of habeas
corpus under 28 U.S.C. § 2241, and transfer this matter to the
district where Petitioner is presently confined in a state
prison, the Middle District of North Carolina.

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Because the Court construes this § 2255 motion as a petition
under 28 U.S.C. § 2241, the only proper respondent is the
petitioner’s custodian. See Rumsfeld v. Padilla, 522 U.S. 426,
443 (2004). Therefore, this Court substitutes as the respondent
in this matter the Warden of Morrison Correctional Institution,
North Carolina.
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I.

BACKGROUND
Petitioner pled guilty, in this Court, to Count One of a

Superseding Information for conspiracy to distribute and possess
with intent to distribute heroin, in violation of 21 U.S.C. §
841(A)(1) and (b)(1)(B). (Pet., ECF No. 1 at 2, ¶5; USA v.
Farmer, 11cr706, (D.N.J.) (Judgment, ECF No. 156)). On September
28, 2015, he filed a motion to vacate, set aside or correct a
sentence. (ECF No. 1.) In Ground One of the § 2255 motion,
Petitioner stated the following:
Judge Joseph H. Rodriguez
Date of Proceeding 5/28/15
Court recommends to the Bureau of Prison
that the defendant receive credit commencing
at the time of detention in this district at
the FDC and designate the North Carolina
Department of public safety prison as his
place of confinement and that sentence
should run concurrently with the North
Carolina sentence which is found at
11cr5067009.
(ECF. No. 1 at 5, ¶12.)
For Ground Two, Petitioner stated:
Judgment in a Criminal Case:
The defendant is hereby committed to the
United States Bureau of Prison to be
imprisoned for a term of 66 months. The
Court makes the following Recommendation to
the Bureau of Prison. The defendant receive
credit commencing at the time of detention
in this district at FDC and designate the
North Carolina Department of Public Safety
prison as his place of confinement “and that
this sentence should run concurrently with
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North Carolina Sentence which is found at
“11cr5067009.””
(ECF No. 1 at 6.) In response to the question “explain why you
did not appeal or raise this issue,” Petitioner wrote “Reason
why I didn’t appeal is because I was satisfied with the plea
agreement.” (ECF No. 1 at 8, ¶7.)
Petitioner left blank the section for “Ground Three.” (ECF
No. 1 at 8.) For Ground Four, however, he asserted:
Manifest Error
That was indisputable according to Judge
Joseph H. Rodriguez Ruling
The Error base[d] on Federal Judgment of
Commitment stayed that 66 months for
conspiracy to distribute and possess with
intent to distribute heroin (to Run
Consecutive to State). I pray this manifest
error be corrected and judgment that was
agree[d] upon be upheld.
(ECF No. 1 at 9.)
In his request for relief, Petitioner stated:
I want the court to remove the federal
detainer. And for the order from the Judge
Joseph H. Rodriguez to be upheld. He stated
that my federal sentence should run
concurrently with my North Carolina State
Prison Sentence.
(ECF No. 1 at 14.)
II.

DISCUSSION
Where a petitioner is not seeking modification of the

sentenced imposed by the sentencing court, but challenges the
Bureau of Prison’s computation of his sentence, the proper

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vehicle for relief is a petition for habeas relief under 28
U.S.C. § 2241. See e.g. Harris v. Bureau of Prisons (BOP)
Federal, 787 F.Supp.2d 350, 358-59 (W.D. Pa. 2011) (finding
inmate was not entitled to habeas relief where BOP denied
Petitioner’s request for a retroactive nunc pro tunc designation
of the state prison as the place to serve the federal sentence);
Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990) (“Barden’s
action is actionable under § 2241 because he is in custody and
he attacks the term of that custody.”) Petitioner is clearly not
seeking modification of his sentence, as he stated he is
satisfied with the plea agreement.
Petitioner is challenging the BOP’s execution of his
sentence. “The authority to calculate a federal prisoner's
period of incarceration for the federal sentence imposed and to
provide credit for time served is delegated to the Attorney
General, who acts through the BOP.” Galloway v. Warden of F.C.I.
Ft. Dix, 385 F. App’x 59, 62 (3d. Cir. 2010) (citing United
States v. Wilson, 503 U.S. 329, 334-35 (1992)). Thus, the Court
construes the present § 2255 motion as a petition under 28
U.S.C. § 2241. The Court will transfer this matter to the
district having jurisdiction over Petitioner’s custodian, the
Middle District of North Carolina. 2 See U.S. v. Kelly, 504 F.

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The Morrison Correctional Institution, North Carolina is
located in Richmond County.
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App’x 85, 86-87 (3d Cir. 2012) (petitioner’s challenge to BOP’s
calculation of custody credit for period when he was under a
detainer should be filed in the district of confinement);
Verissimo v. I.N.S., 204 F.Supp.2d 818, 820 (D.N.J. 2012) (“a
court may transfer a matter under 28 U.S.C. § 1406 to a court
with personal jurisdiction over the defendant and where venue is
appropriate.”)
III. CONCLUSION
For the reasons discussed above, the Court will transfer
this petition, construed as a petition for writ of habeas corpus
under 28 U.S.C. § 2241, to the Middle District of North
Carolina.
IT IS THEREFORE on this 21st day of January, 2016
ORDERED that this Court construes Petitioner’s motion under
28 U.S.C. § 2255 as a petition under 28 U.S.C. § 2241; and it is
further
ORDERED that Petitioner’s current custodian, the Warden of
the Morrison Correctional Institution, North Carolina, is
substituted as the respondent; and it is further

https://www.ncdps.gov/index2.cfm?a=000003,002240,002382,002302
Jurisdiction over Richmond County lies in the U.S. District
Court, Middle District of North Carolina.
http://www.ncmd.uscourts.gov/ncmd-counties
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ORDERED that pursuant to 28 U.S.C. § 1406(a), the Clerk of
Court shall transfer this matter to the United States District
Court, Middle District of North Carolina; and it is further
ORDERED that the Clerk shall serve a copy of this Order
upon Petitioner by regular U.S. mail, and it is further
ORDERED that the Clerk shall close this matter.

s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
United States District Judge

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