Unpublished Disposition, 927 F.2d 609 (9th Cir. 1987)

James Jason Hill ("Hill") appeals the district court's denial of a petition for a writ of habeas corpus. We affirm.

BACKGROUND FACTS

On September 19, 1986, a federal grand jury indicted Hill for bank larceny. At the time of the indictment, Hill was in state custody under the name James Dean Cockrum for a probation violation. He was then transferred to federal custody on October 8, 1986 so that he could be present for his federal case. He remained in federal custody from that time on, but continued to receive credit from the state for the time he was serving. The state paroled Hill on May 22, 1987. On June 23, 1987, Hill was released by the federal government on a bond; however, he was rearrested on July 29, 1987. On December 14, 1987, he was sentenced on the federal case.

The Bureau of Prisons gave Hill credit for time served from May 22, 1987 through June 23, 1987, and from July 29, 1987 through December 13, 1987. Hill filed a writ seeking credit for the entire time he spent in federal custody prior to his federal sentencing. The court denied the writ both on its merits and because Hill had not exhausted his administrative remedies.

JURISDICTION AND STANDARDS OF REVIEW

This court has jurisdiction pursuant to 28 U.S.C. § 2253.

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989).

DISCUSSION

A. The district court correctly determined that Hill failed to exhaust his administrative remedies.

In general, federal prisoners must exhaust their federal administrative remedies before bringing a habeas corpus petition in federal court. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). See also Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Here, the Bureau of Prisons has an administrative procedure whereby an inmate may seek review of a complaint which relates to his imprisonment. This remedy is set forth in 28 C.F.R. Secs. 542.10-542.16, and applies to "any aspect of ... imprisonment." 28 C.F.R. Sec. 542.10. Hill brought this petition to challenge the computation of jail credit that he believes he has earned. Since the petition relates to an aspect of imprisonment, the district court did not err in determining that Hill should exhaust the administrative remedy before bringing his petition to this court. See Brown, 895 F.2d at 535.

B. The district court lacked jurisdiction over Hill's 28 U.S.C. § 2255 petition because Hill's petition should have been brought as a habeas corpus petition under 28 U.S.C. § 2241.

A section 2255 petition tests the propriety of the sentence imposed, and not its execution. United States v. Espinoza, 866 F.2d 1067, 1071 (9th Cir. 1988). A claim under 18 U.S.C. § 3568 for credit against a federal sentence for time spent in custody prior to sentencing cannot be raised under Sec. 2255. Id. Hill brought his claim for jail credit under 18 U.S.C. § 3568, thus his petition should not be brought under Sec. 2255, but under 28 U.S.C. § 2241 as a challenge to the lawfulness of his confinement.

However, in light of Hill's status as a pro se litigant, his petition must be construed liberally. See Bennet v. Soto, 850 F.2d 161, 163 (3rd Cir. 1988); McNair v. McCune, 527 F.2d 874, 875 (4th Cir. 1975) (per curiam). Nevertheless, even if this court treats Hill's Sec. 2255 motion as if it were a Sec. 2241 petition for purposes of appeal, the district court must have had jurisdiction to hear Hill's Sec. 2241 petition. Adrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir. 1977).

A Sec. 2241 habeas petition must be filed in the judicial district within which either the United States Parole Commission or the prisoner's custodian is located. United States v. Hutchings, 835 F.2d 185, 187 (8th Cir. 1987); see also Adrino, 550 F.2d at 520 (district court could not treat Sec. 2255 motion as a misbranded habeas petition because the writ can only be brought in a district court with jurisdiction over the prisoner or his custodian.) Here, Hill is incarcerated in Oxford, Wisconsin, and the United States Parole Commission is located in Washington D.C.. Accordingly, the district court for the Southern District of California lacked jurisdiction to hear Hill's claim. Were it not for the failure to exhaust remedies, a transfer to the correct district would be proper. 28 U.S.C. § 1631; Miller v. Hambrick, 905 F.2d 259, 261-62 (9th Cir. 1990). As it is, transfer would serve no purpose and is not in the interest of justice. The above being so, we decline to reach the merits of petitioner's claim.

AFFIRMED.