Smith v. Eischen

Background

Darrell D. Smith, representing himself, was serving a 175-month federal sentence for wire fraud and aggravated identity theft. He previously served a 13-month sentence for failing to account for and pay employment tax. Smith filed a petition under 28 U.S.C. § 2241, a procedure that can be used to challenge certain aspects of federal detention, against Warden B. Eischen.

Smith challenged the validity of his tax conviction, the validity and imposition of his wire-fraud sentence, and the Bureau of Prisons’ calculation of his time-served credits. He argued that he had been told the sentences would run concurrently, or at the same time, and that he should receive credit on the 175-month sentence for the 13 months served on the tax conviction. He also argued that he should receive credit for April 29, 2017, rather than beginning on April 30, 2017.

Earlier proceedings and objections

Magistrate Judge Dulce J. Foster’s first Report and Recommendation recommended dismissing all claims except a claim concerning the alleged miscalculation of jail-time credits and denying Smith’s request for appointed counsel. The district court adopted that recommendation. Foster’s second Report and Recommendation recommended dismissing the remaining time-credit claim and denying as moot Smith’s motion to add material to the record.

Smith objected to the second recommendation and also raised arguments concerning the first recommendation. The district court reviewed the properly challenged portions of the recommendation anew and considered Smith’s other objections as well because he was representing himself.

Claims over which the court found no jurisdiction

The court declined to reconsider the dismissal of Smith’s challenges to the tax conviction. It held that the fact that Smith’s separate motion under 28 U.S.C. § 2255 had been dismissed as untimely did not make that remedy inadequate or ineffective. Because Smith had not shown that § 2255 was inadequate or ineffective, the court held that it lacked jurisdiction to evaluate the validity of the tax conviction through a § 2241 petition.

The court reached the same conclusion for Smith’s challenges to the wire-fraud conviction and the imposition of the resulting sentence. It explained that challenges involving application of the sentencing guidelines, whether sentences should run concurrently or consecutively, and the length of a sentence generally had to be brought through a § 2255 motion in the sentencing court. The court therefore reaffirmed dismissal of the portions of Claims 3 and 4 that challenged the validity of the wire-fraud conviction or the imposition of its sentence.

Time-served credits

The court addressed the merits of Smith’s remaining challenge to the Bureau of Prisons’ calculation of time served. It held that 18 U.S.C. § 3585(b) required the Bureau of Prisons to begin crediting time on April 30, 2017, the day after the prior tax sentence ended. Smith’s current sentence began on October 5, 2018, and the Bureau of Prisons credited him for the period from April 30, 2017, through October 4, 2018.

The court rejected Smith’s argument that 18 U.S.C. § 3584 required a different calculation. Section 3584 did not give the Bureau of Prisons authority to alter the sentencing judge’s explicit order that the sentences run consecutively. The court also stated that the Eighth Circuit had ruled that Smith’s offenses were unrelated. Because § 3585(b) bars crediting custody time toward two different sentences, the court held that Smith was not entitled to credit for April 29, 2017, or for the 13 months already credited to the tax sentence.

Other rulings

Because the court lacked jurisdiction to consider the validity of the tax conviction, it adopted the recommendation to deny Smith’s motion to append additional material as moot. The court also upheld the denial of appointed counsel, concluding that the magistrate judge’s decision was not clearly erroneous or contrary to law.

Disposition

The court overruled Smith’s objections, adopted Magistrate Judge Foster’s second Report and Recommendation, denied the motion to append as moot, and dismissed Smith’s petition in its entirety without prejudice. The opinion explains that a dismissal without prejudice permits Smith to make necessary changes and refile, but it also states that the court could not consider the claims over which it lacked jurisdiction without a showing that § 2255 was inadequate or ineffective.