Unpublished Disposition, 930 F.2d 27 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 27 (9th Cir. 1988)

Dennis Wayne FRYE, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellant

No. 90-15579.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.* Decided April 11, 1991.

Before PREGERSON, FERGUSON and TROTT, Circuit Judges.


Appellant Frye appeals the district court's denial of his habeas corpus motion under 28 U.S.C. § 2255. Frye contends that his federal sentence should be credited for time spent in the custody of federal marshals pursuant to a writ of habeas corpus ad prosequendum from state prison. The government asserts that because Frye's request is an attack on the execution of his sentence, not the legality of the sentence, this court may not grant such relief under 28 U.S.C. § 2255. We affirm.

Frye was sentenced in 1988 for federal tax offenses occurring during the years 1980, 1981 and 1982. At the time of his indictment, he was in state prison serving time for a state conviction. The federal district court issued a writ of habeas corpus ad prosequendum for the following dates:

11288 to 11988

22388 to 30188

33088 to 52788.

State prison officials released Frye to federal marshals on these dates while continuing to credit his state sentence for this time. On May 18, 1988, the district court sentenced Frye to five years in prison and a $10,000.00 fine. The court ordered Frye to be remanded to the custody of the United States Marshals to begin serving his federal term of incarceration forthwith. In addition, Frye was to "be given credit for time served while in the custody of the United States Marshals."

The federal marshals returned Frye to state prison where he remained until June 21, 1988. He was then released to the custody of federal marshals and arrived at federal prison on July 21, 1988. Frye alleged that he had not been credited with all the time that the district court's sentencing order had demanded. Frye properly sought administrative relief through the Bureau of Prisons. Initially his request was denied but upon appeal to the Bureau it was partially granted. His federal sentence was credited for the time period commencing on the date of sentencing (May 18, 1988) and ending on the date he was transferred to the federal penitentiary at Pleasanton (July 21, 1988). The Bureau denied Frye's request for credit for the times that he was in the custody of the federal marshals pursuant to the writ of habeas corpus ad prosequendum prior to May 18, 1988. The reason given for the denial was that " [t]he State of California has awarded [him] credit toward [his] state sentence for the time [he had requested]."

Frye brought this action under 28 U.S.C. § 2255. The district court summarily denied Frye's Sec. 2255 motion entitled "Enforcement of Terms of Plea Agreement." We review de novo a denial of a motion brought under 28 U.S.C. § 2255. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

Frye's Sec. 2255 motion contends that the Bureau of Prisons has breached his plea agreement. However, the actual issue raised is whether or not the Bureau of Prisons has correctly executed the sentencing order with regard to presentence credit. The government is correct in its assertion that the district court was without jurisdiction to reach the merits of this claim under a Sec. 2255 proceeding. Frye's motion is an attack on the execution of the sentence not on the sentence as it was imposed. Ridenour v. United States, 446 F.2d 57 (9th Cir. 1971) (denying relief under 28 U.S.C. § 2255 where the purpose of the motion was to attack the manner of execution of his sentence). Section 2255 is not the proper vehicle for a claim which attacks the computation of time served. Claims attacking the execution of a sentence, as is the case here, are properly brought under 28 U.S.C. § 2241. United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (Inmate was not entitled to relief under the rule governing motions for correction of sentence. His claim that he was entitled to credit against his sentence for time spent in custody prior to sentencing addressed the execution of the sentence imposed, rather than the sentence itself).

While claims attacking the execution of the sentence which were improperly brought under Sec. 2255 have sometimes been construed as Sec. 2241 claims, we will not do so here. The district court made no factual findings such that we may proceed to the merits of the issue raised by Frye. Further, the government's brief does not address the underlying Sec. 2241 issue regarding the execution of his sentence. Therefore we affirm the district court's denial of Frye's motion brought under 28 U.S.C. § 2255. Nothing in this opinion should be construed to restrict Frye's ability to bring a proper motion under 28 U.S.C. § 2241.



This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3