United States District Court, E.D. Kentucky, Northern Division
L Bunning United States District Judge.
matter is before the Court on Defendant Daryl Isbel's
Motion to Clarify Court's Previous Order Awarding Jail
Time Credit in the Amount of Six Months, which the Court
construes as a motion seeking jail time credit toward his
federal sentence for time previously served in state custody.
(Doc. # 1581). Although the United States has not had an
opportunity to respond, the Court finds that adjudicating
Defendant's Motion at this time is appropriate, without
the need for and benefit of a responsive filing by the
Government. For the reasons set forth below, Defendant's
Motion is denied without prejudice.
subject Motion relates to the interaction of two criminal
judgments entered against Defendant Daryl Isbel
(“Isbel”), one imposed by the Municipal Court of
Hamilton County, Ohio, and the other imposed by the United
States District Court for the Eastern District of Kentucky in
the instant case. First, on October 18, 2012, a grand jury
returned an Indictment against Isbel in the Hamilton County,
Ohio Municipal Court for possession of heroin in violation of
Ohio Rev. Code § 2925-11(A). On January 18, 2013, Isbel
was taken into state custody. See Id. After pleading
guilty, Defendant Isbel was subsequently sentenced to one
year of imprisonment on February 26, 2013. Id.
April 11, 2013, while Isbel was serving his one-year state
prison sentence, a Superseding Indictment was returned
against Isbel In the instant case for conspiracy to
distribute oxycodone in violation of 21 U.S.C. § 846.
(Doc. # 364). On April 15, 2013, the Court entered an Order
granting the Government's Motion for a Writ of Habeas
Corpus Ad Prosequendum commanding the warden of
Pickaway Correctional Institution in Orient, Ohio, to deliver
Isbel to the United States Marshal for the Eastern District
of Kentucky for arraignment and other proceedings. (Doc. #
377). On July 18, 2013, Isbel appeared before the Court for
rearraignment and pleaded guilty to conspiracy to Count 1 of
the Superseding Indictment. (Doc. # 802; Doc. # 1079).
Subsequently, on December 19, 2013, then U.S. District Judge
Amul Thapar sentenced Isbel to 115 months of imprisonment,
with a 20-year term of supervised release to
follow. (Doc. # 1079). Oversight of this matter
was reassigned to the undersigned in May, 2017 when Judge
Thapar was elevated to the Sixth Circuit Court of Appeals
(Doc. # 1552). Central to Isbel's subject Motion, the
Judgment further ordered that “this sentence shall be
imposed to run partially concurrently (six  months),
partially consecutively (6 [six] months) with Hamilton
County, Ohio No. B1206858.” (Doc. # 1079). Isbel is
presently set to be released on November 8, 2019.
January 22, 2018, Defendant Isbel filed the subject Motion to
Clarify, contending that the 96-month term of imprisonment
imposed by this Court for his conviction under 21 U.S.C.
§ 846 is not being carried out in accordance with the
Court's December 19, 2013 Judgment. (Doc. # 1079).
Specifically, Isbel takes issue with how the Federal Bureau
of Prisons (“BOP”) has calculated his term of
imprisonment under the Court's Judgment, arguing that the
BOP has misapplied the Court's Judgment Order with
respect to the partial, six-month concurrence with the
Hamilton County, Ohio sentence. (Doc. # 1581). Isbel contends
that the BOP improperly “has refused to award the 6
months credited by this Court.” (Doc. # 1581). Isbel
requests a Court order redirecting the BOP to award the 6
months jail time credit, which Isbel argues would make him
immediately eligible to be placed in a halfway house in light
of his completion of the Residential Drug Abuse Program
(“RDAP”) administered by the BOP. (Id.).
extent the Court construes Defendant's Motion as a Motion
seeking credit on his federal sentence, the Court lacks
jurisdiction over such a request. It is well-settled that
once “a district court sentences a federal offender,
the Attorney General, through the [BOP], has the
responsibility for administering the sentence.”
United States v. Wilson, 503 U.S. 329, 335 (1992)
(citing 18 U.S.C. § 3621(a)). The scope of the BOP's
general responsibility includes the specific responsibility
to compute jail-time credit pursuant to 18 U.S.C. §
Isbel may seek district court review of his sentence
calculation, he must first petition the BOP with his request
on how the jail time under the state convictions is credited
against the term of imprisonment of his federal sentence.
See Wilson, 503 U.S. at 333. If the BOP in the
exercise of its authority determines a release date contrary
to what Defendant Isbel believes is called for by the
Court's Judgment, Isbel is afforded administrative review
of the BOP's computation. The BOP has developed detailed
procedures and guidelines for determining the credit
available to prisoners; accordingly an inmate wishing to
challenge the computation of his time-served credit by the
BOP must first exhaust the four-tiered administrative review
process. Wilson, 503 U.S. at 335 (citing 28 C.F.R.
§§ 542.10 - 542.19).
after the inmate has exhausted the BOP administrative review
process may he seek judicial relief. United States v.
Westmoreland, 974 F.2d 736, 738 (6th Cir. 1992),
cert. denied, 507 U.S. 1019 (1993) (holding that
until the Attorney General makes a determination on computing
time-served credit, the case is not ripe for review by a
district court). Defendant carries the burden to demonstrate
exhaustion. See United States v. Dowell, 16 F.
App'x 415, 420 (6th Cir. 2001). Only after the inmate has
exhausted these remedies may he seek judicial relief. See
Westmoreland, 974 F.2d at 738.
once administrative remedies have been exhausted, the proper
means for an inmate to seek judicial relief is through a
habeas petition filed pursuant to 28 U.S.C. § 2241 in
the federal district and division of custody. See Alvey v.
United States, 899 F.2d 1221, 1990 WL 40080, at *1 (6th
Cir. 1990) (table decision) (“[A] federal prisoner who
wishes to raise a sentencing credit issue may do so only by
filing a petition for a writ of habeas corpus under 28 U.S.C.
§ 2241.”); United States v. Lyons, 582 F.
App'x 659, 660 (6th Cir. 2014) (determining that if the
BOP declines to give defendant credit for time served in
state custody, he may obtain judicial review by filing a
§ 2241 petition after he exhausts his administrative
remedies). The Sixth Circuit held that a prisoner's
§ 2241 petition may not be dismissed for failure to
plead or attach exhibits with proof of exhaustion, as
exhaustion is an affirmative defense in the context of
prisoner lawsuits. See Luedtke v. Berkebile, 704
F.3d 465, 466 (6th Cir. 2013) (vacating the district
court's dismissal of prisoner's § 2241 claim on
exhaustion grounds and remanding for further proceedings).
However, a sua sponte dismissal “may be appropriate
where a petitioner's failure to exhaust is apparent from
the face of the pleading itself. Shah v. Quintana,
17-5053, 2017 WL 7000265, at *1 (6th Cir. July 17, 2017)
(finding that the district court properly dismissed
Shah's § 2241 petition).
Defendant Isbel failed to meet his burden to demonstrate
exhaustion of his administrative remedies. It is clear from
the face of Isbel's subject construed Motion that he
seeks to bypass all administrative steps and proceed directly
to judicial review in the sentencing court. See
Shah, 2017 WL 7000265, at *1. Isbel not only failed to
attach evidence in support of exhaustion, but it is apparent
that he failed to utilize the BOP administrative review
process at all. Nor did Isbel properly seek relief in the
form of a § 2241 motion. The case is thus not yet ripe
for this Court's consideration, and the Court presently
lacks the jurisdiction it requires to consider Defendant
Isbel's claim for relief.
for the reasons set forth hereinabove, IT IS
ORDERED that Defendant Daryl Isbel's Motion to
Clarify Court's Previous Order Awarding Jail Time Credit
in the Amount of Six Months (Doc. # 1581), which the Court
construes as a motion seeking jail time credit toward his
federal sentence for time previously served in state custody,
is denied without prejudice.
 See State of Ohio v. Daryl
Isbel, Hamilton County, Ohio No. B 1206858, available at
(last visited January 30, 2018). The Court is permitted to
take judicial notice of these public records pursuant to
Fed.R.Evid. 201. See United States ex rel. Dingle v.
BioPort Corp., 270 F.Supp.2d 968, 972 (W.D. Mich. 2003)
(“Public records and government documents are generally
considered not to be subject to reasonable dispute. This
includes public records and ...