United States District Court, N.D. Mississippi, Oxford Division
B. BIGGERS SENIOR U.S. DISTRICT JUDGE
matter comes before the court on the pro se petition
of James Keel for a writ of habeas corpus under 28
U.S.C. § 2241. Mr. Keel argues that the State has
computed his release date improperly by running his second
sentence consecutive to, rather than concurrent with, the
first. The State has moved to dismiss the instant
petition as procedurally defaulted. Mr. Keel has responded to
the motion, and the matter is ripe for resolution. For the
reasons set forth below, the State's motion to dismiss
will be granted, and the instant petition for a writ of
habeas corpus will be denied on the merits and, in
the alternative, dismissed as procedurally defaulted.
Corpus Relief Under 28 U.S.C. § 2241
writ of habeas corpus, a challenge to the legal
authority under which a person may be detained, is ancient.
Duker, The English Origins of the Writ of Habeas Corpus: A
Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass,
Historical Aspects of Habeas Corpus, 9 St. John's L.Rev.
55 (1934). It is “perhaps the most important writ known
to the constitutional law of England, ” Secretary
of State for Home Affairs v. O'Brien, A.C. 603, 609
(1923), and it is equally significant in the United States.
Article I, § 9, of the Constitution ensures that the
right of the writ of habeas corpus shall not be
suspended, except when, in the case of rebellion or invasion,
public safety may require it. Habeas Corpus, 20 Fed.
Prac. & Proc. Deskbook § 56.
by the federal courts was authorized in Section14 of the
Judiciary Act of 1789. Habeas corpus
principles developed over time in both English and American
common law have since been codified:
The statutory provisions on habeas corpus appear as
sections 2241 to 2255 of the 1948 Judicial Code. The
recodification of that year set out important procedural
limitations and additional procedural changes were added in
1966. The scope of the writ, insofar as the statutory
language is concerned, remained essentially the same,
however, until 1996, when Congress enacted the Antiterrorism
and Effective Death Penalty Act, placing severe restrictions
on the issuance of the writ for state prisoners and setting
out special, new habeas corpus procedures for
capital cases. The changes made by the 1996 legislation are
the end product of decades of debate about habeas
Id. Under 28 U.S.C. § 2241, a federal court may
issue the writ when the petitioner is in state custody
pursuant to something other than a state judgment (such as
pretrial detention, pretrial bond order, etc.), permitting a
federal court to order the discharge of any person held by a
state in violation of the supreme law of the land. Frank
v. Mangum, 237 U.S. 309, 311, 35 S.Ct. 582, 588, 59
L.Ed. 969 (1915).
of Proceedings: § 2254 v. § 2241
state prisoner challenges unconstitutional parole procedures
or rules which affect his release, and resolution would
entitle him to accelerated release, the challenge is properly
brought as a habeas corpus proceeding. Davis v.
Fechtel, 150 F.3d 486, 490 (5th Cir.1998). A
challenge to the execution of a sentence, as opposed
to its duration, is appropriately brought under
Title 28 U.S.C. § 2241, as opposed to § 2254.
Id., at 490; see also, Batiste v. State Bd. of
Pardon and Parole, 1999 WL 102027 at *1 (E.D.La.1999)
(quoting King v. Lynaugh, 729 F.Supp. 57, 58
(W.D.Tx.1990)); McIntosh v. U.S. Parole Comm'n,
115 F.3d 809, 811 (10th Cir.1997) (petitions under
§ 2241 are used to attack execution of a sentence);
Hall v. Saffle, 10 Fed.Appx. 768, 2001 WL 589514 at
*2 (10th Cir. May 31, 2001) (unpub.) (due process
challenge to the execution of a sentence is properly
considered under § 2241). Section 2241 is an appropriate
vehicle to challenge government action that affects the
actual duration of the petitioner's custody (rather than
the length of the sentence imposed), “such as
challenges to administrative orders revoking good-time
credits, computation of a prisoner's sentence by prison
officials, a right to release on parole, or other equivalent
sentence-shortening devices.” § 5:7. Federal
prisoners-Section 2241 habeas corpus petitions,
Postconviction Remedies § 5:7. The petitioner in this
case thus seeks the appropriate form of federal habeas
and Procedural Posture
Keel has sought relief for the claims raised in the instant
petition multiple times, but he has never pursued those
claims to completion in state court. On June 9, 2016, James
Keel was charged in a four-count indictment: conspiracy to
sell methamphetamine (Count I), sale of methamphetamine
(Count II), conspiracy to sell methamphetamine (Count III),
and sale of methamphetamine to a confidential informant
(Count IV). See Exhibit B. On April 3, 2017, the
Yalobusha County Circuit Court amended Mr. Keel's
indictment to charge him as a habitual offender under Miss.
Code Ann § 99-19-81 and as a “recidivist
offender” under Miss. Code Ann § 41-29-147.
See Exhibit C. On May 1, 2017, Mr. Keel pled guilty
to conspiracy to sell methamphetamine (Count I) and sale of
methamphetamine (Count II). See Exhibit D (Plea
Petition, “Plea and Sentence” Transcript, and
Sentencing Order in Yalobusha County Circuit Court Cause No.
CR2016-18JMY2). The Yalobusha County Circuit Court sentenced
Keel to serve a term of twenty (20) years for the sale of
methamphetamine (Count II), followed by a term of ten (10)
years of post-release supervision for conspiracy to sell
methamphetamine (Count I). See Exhibit D. The circuit
court ordered that “[t]his sentence imposed shall run
concurrent[ly with] any and all sentences previously
imposed[, ]” and that Keel be awarded credit for one
day served in custody while awaiting trial on these charges.
See id. (Sentencing Order at pp. 3-4).
his conviction, Mr. Keel has repeatedly challenged the
State's computation of the sentences at issue in the
instant petition. As detailed below, Mr. Keel filed four
motions in his criminal case in the Yalobusha County Circuit
Court. He then attempted, unsuccessfully, to appeal the
denial of his fourth motion to the Mississippi Supreme Court.
Mr. Keel also filed multiple grievances with the MDOC
Administrative Remedy Program (ARP), and, in doing so,
created a backlog of ARP filings by filing a new grievance
before prison officials could address previously filed
12, 2017, he submitted a prison grievance, which was stamped
as “received” on July 15, 2017, and assigned ARP
Number CMCF-17-2309. See Exhibit G. In the
grievance, Mr. Keel argued that his MDOC Inmate Time Sheet
computed on June 5, 2017, and received on July 7, 2017, and
did not reflect his previously imposed sentences. See
id. He sought an amendment to his time sheet to correct
what he characterized as an “ambiguous error.”
See id. Mr. Keel argued that the time sheet failed
to reflect that his previously imposed sentences were to run
concurrently with his Yalobusha County Circuit Court
sentences. See id. On August 9, 2017, the MDOC ARP
issued a First Step Response Form to Keel's complaint in
CMCF-17-2309, advising Keel that - at the time - he was
serving the sentence in Yalobusha County Cause Number
CR2016-18-JMY2, “and that case only.” See
id. Thus, it appears that, by the time he raised the
issue in a grievance, he had completed his previously-imposed
sentences - and was serving out the remainder of his sentence
in Cause Number CR2016-18-JMY2.
with the First Step Response, Mr. Keel proceeded to step two
of the MDOC ARP, again arguing that his sentencing order in
Yalobusha County Cause Number CR2016-18-JMY2 stated that his
sentence shall run concurrently with his previously imposed
sentences. See id. On October 20, 2017, the MDOC ARP
issued a Second Step Response Form to Keel's complaint in
CMCF-17-2309, stating that Mr. Keel was only serving his
twenty-year sentence in Yalobusha County Cause Number
CR2016-18-JMY2. Thus, there were no other sentences with
which the twenty-year sentence could run concurrently.
See id. The MDOC ARP further advised Keel that there
was nothing more that it could address in this matter.
See id. On December 18, 2017, Keel signed the Second
Step Response Form, certifying that he had fulfilled the
requirements of the ARP and was eligible to seek judicial
review within thirty (30) days of receipt of the Second Step
Response. See id.
detailed below, however, Mr. Keel did not seek timely
judicial review of the Second Step Response in CMCF-17-2309.
He filed four motions challenging the computation of his
sentences in the Yalobusha County Circuit Court (docketed in
his criminal matter); however, he filed three of the motions
prematurely (before his receipt of the Second Step
Response Form on December 18, 2017) - and filed his final
motion late - on June 4, 2018 (approximately five months
after his deadline to seek judicial review expired).
October 24, 2017, before completion of the MDOC ARP process
in CMCF-17-2309, Keel filed a “Motion for Court to Send
Order to MDOC Records Department” in the Yalobusha
County Circuit Court, asserting that the MDOC was not running
his sentence concurrently with his sentence from Lafayette
County, as ordered. See Exhibit H. Keel requested
that the Yalobusha County Circuit Court send an order to the
MDOC Records Department clarifying the terms of his sentence.
Order filed on November 6, 2017, the Yalobusha County Circuit
Court denied Keel's motion, finding that it was without
merit. See Exhibit I. The court reiterated the terms
of Keel's sentence in ...