Michael Jackson v. Virgin Islands, Vi Attorney General; Director Vi Boc

BLD-149
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4601
___________
MICHAEL JACKSON,
Appellant
v.
VIRGIN ISLANDS, VI ATTORNEY GENERAL;
DIRECTOR VI BOC
_____________________
Appeal from the District Court of the Virgin Islands
(D.C. Civil No. 07-cv-00089)
District Judge: Honorable Curtis V. Gomez
_____________________
Submitted for a Certificate of Appealability or Possible
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 28, 2008
Before: McKEE, RENDELL and SMITH, Circuit Judges
(Filed April 2, 2008)
_________
OPINION OF THE COURT
_________
PER CURIAM
Michael Jackson, proceeding pro se, appeals the District Court’s denial of his
petition for a writ of habeas corpus. For the reasons that follow, we will vacate the
judgment of the District Court and remand for further proceedings consistent with this

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opinion.
According to the District Court, Jackson pled guilty in the District Court of the
Virgin Islands to second degree murder and escape from custody in violation of Virgin
Islands territorial law. On January 15, 1985, Jackson was sentenced to fifty years on the
murder charge and ten years on the escape charge and committed to the custody of the
Virgin Islands Bureau of Corrections. The sentences were to run consecutively.
Although it is not entirely clear from the record, it appears that Jackson served part of his
sentence in a mainland federal prison and that, at the time of filing, he was incarcerated at
Wallens Ridge State Prison in Big Stone Gap, Virginia.
On June 4, 2007, Jackson filed a petition for a writ of habeas corpus in the District
Court of the Virgin Islands, claiming that he actually received two ten-year sentences
which were to run concurrently and, accordingly, he had served seventeen years beyond
his sentence. He sought immediate release from custody and transfer back to the Virgin
Islands for parole, and claimed that his good time credits had not been properly calculated
and accordingly, neither had his parole eligibility date. Additionally, Jackson claimed
that he was denied access to Virgin Islands legal materials in Virginia and was unable to
access the resources needed to secure parole and that these conditions constituted a
violation of his rights to due process and equal protection.
After receiving a significant number of letters, motions and other filings from
Jackson, as well as a statement from the Virgin Islands Bureau of Corrections calculating
the territorial and federal good conduct credits Jackson was entitled to, the District Court

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entered an order on October 16, 2007 denying Jackson’s habeas petition on the merits.
Specifically, the District Court held that Jackson had received and continued to receive
the good time credits he was entitled to and that his assertion that he has been imprisoned
beyond the length of his sentence was without merit.
Jackson filed a notice of appeal and was informed that his appeal would be
submitted to a panel of this Court for a decision on whether summary action is
appropriate and whether a certificate of appealability is required. Jackson filed a lengthy
response detailing the errors he believes were committed by the District Court and
requesting the appointment counsel to represent him on appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and § 2253.
While neither Jackson nor the District Court identified the nature of the underlying
habeas petition, inasmuch as it is directed to the execution and not the validity of
Jackson’s sentence, we conclude that it falls under 28 U.S.C. § 2241. See Coady v.
Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001) (holding that federal prisoner may
challenge execution of sentence through § 2241 while state prisoner must pursue such
relief through § 2254); Callwood v. Enos, 230 F.3d 627, 633 (3d Cir. 2000) (holding that
petitioner convicted and sentenced in District Court of Virgin Islands for violation of
territorial law may challenge parole determination via § 2241). In Caldwell, we faced a
situation quite similar to the one presently at bar. After concluding that the District Court
of the Virgin Islands did have jurisdiction over Caldwell’s § 2241 petition, we explained:
. . . given our understanding of the judicial system as it now stands in the

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1Because we conclude that Jackson’s petition falls under 28 U.S.C. § 2241, a certificate
of appealability is not necessary. See Caldwell, 230 F.3d at 633, n.7. In light of our
decision, Jackson’s request for the appointment of counsel to represent him on appeal is
denied.
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Virgin Islands, principles of comity mandate that Callwood be required to
exhaust his remedies in the Territorial Court before proceeding in the
District Court of the Virgin Islands under federal law. Although there is no
statutory exhaustion requirement attached to § 2241, we have consistently
applied an exhaustion requirement to claims brought under § 2241. As
Callwood has understandably failed to seek relief in the Territorial Court
under § 1303, this is a case particularly well-suited to dismissal at this stage
for lack of exhaustion. The Territorial Court will no doubt be more familiar
with the provisions and requirements of the territorial parole statute and
should be given an opportunity to provide a remedy, if appropriate, before
Callwood seeks federal habeas corpus relief. Callwood will be free to
return to the District Court under § 2241, after exhausting any remedy
available in the Territorial Court.
230 F.3d at 634 (citations omitted).
We are unable to ascertain from the record whether Jackson attempted to exhaust
his claims in the Virgin Islands Territorial Court. Accordingly, we will vacate the order
of the District Court denying the petition on the merits and remand for the District Court
to determine whether Jackson’s claims have been exhausted and, if not, to dismiss
Jackson’s petition for failure to exhaust his local remedies without prejudice to Jackson’s
refiling his § 2241 petition after exhaustion.1 See Smith v. Horn, 120 F.3d 400, 407-08
(court of appeals may sua sponte exercise discretion to raise issue of exhaustion).

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