McHenry v. Federal Bureau of Prisons

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
MARKELVIN L. MCHENRY 	PETITIONER
v. 	NO. 4:25-cv-00617-BSM-PSH
FEDERAL BUREAU OF PRISONS 	RESPONDENT
FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The 	following 	Recommendation 	has 	been 	sent 	to 	United 	States
District Judge Brian S. Miller. You may file written objections to all or part
of 	this 	Recommendation. 	If 	you 	do 	so, 	those 	objections 	must: 	(1)
specifically explain the factual and/or legal basis for your objection, and
(2) be received by the Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to appeal
questions of fact.
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DISPOSITION
Introduction. In this case, filed pursuant to 28 U.S.C. 2241, petitioner
Markelvin L. McHenry (“McHenry”) challenges the way his sentence in
United 	States 	v. 	McHenry, 	No. 	5:21-cr-00013-RWS-JBB-2, 	(“federal
sentence”) is being administered by respondent Federal Bureau of Prisons
(“BOP”). He maintains that the BOP is failing to follow the doctrine of
primary 	custody. 	Were 	the 	BOP 	following 	the 	doctrine, 	according 	to
McHenry, his federal sentence would be deemed to have begun on the day
it was imposed because he was in exclusive federal custody on that day.
Liberally construing McHenry’s petition, he appears to seek either an order
requiring him to be taken into federal custody and designated to a federal
facility or an order that the BOP retroactively designate the Arkansas
Division of Correction (“ADC”) as the location for service of his federal
sentence. He additionally asks that he be given credit against his federal
sentence for the time he spent in custody prior to his sentencing. It is
recommended that this case be dismissed without prejudice because it is
premature. McHenry failed to exhaust his administrative remedies before
coming to federal court. He must do so, and can only do so, after he enters
the custody of the BOP, and a sentence computation is performed.
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Prior State and Federal Proceedings and This Case. The record in this
case reflects that on July 23, 2020, the Miller County, Arkansas, Circuit
Court (“Miller County”) issued two bench warrants for McHenry’s arrest
after he failed to appear for cases 46CR-17-62 and 46CR-18-629. See Docket
Entry 11, Exhibit 1 at CM/ECF 1-4. The warrants were still outstanding
when, on March 22, 2021, he was arrested and detained by Bowie County,
Texas, authorities on other charges (“Texas charges”). See Docket Entry 1
at CM/ECF 19; Docket Entry 13 at CM/ECF 4.
On April 22, 2021, McHenry was indicted in the United States District
Court for the Eastern District of Texas. See United States v. McHenry, No.
5:21-cr-00013-RWS-JBB-2. Bowie County, Texas, authorities transferred
him to federal custody on May 5, 2021, pursuant to a writ of habeas corpus
ad prosequendum, and the Texas charges were subsequently dismissed. See
Docket Entry 11, Exhibit 2; Docket Entry 13 at CM/ECF 4.
McHenry eventually pleaded guilty in 5:21-cr-00013-RWS-JBB-2. See
Docket Entry 1 at CM/ECF 21. On February 16, 2022, he was sentenced to
a total term of 165 months imprisonment in the custody of the BOP. See
Docket Entry 1 at CM/ECF 22. The term of imprisonment was ordered to
run consecutive to any future imprisonment imposed in, among other
cases, the Miller County cases. See Docket Entry 1 at CM/ECF 22.
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On May 16, 2022, McHenry was returned to Bowie County, Texas,
authorities pursuant to the writ of habeas corpus ad prosequendum. See
Docket Entry 11 at CM/ECF 2; Docket Entry 11, Exhibit 2; Docket Entry 13
at CM/ECF 4. He was then served with the bench warrants and taken into
custody by Miller County authorities. See Docket Entry 11, Exhibit 1.
On August 2, 2022, McHenry pleaded guilty in the Miller County cases
and was sentenced to the custody of the ADC. See Docket Entry 1 at CM/ECF
29-37. He entered the custody of the ADC at that point and began serving,
and continues to serve, his Miller County sentence.
McHenry thereafter filed the case at bar. Although he is currently in
the custody of the ADC, he challenged the way his federal sentence is being
administered. He maintained that the BOP is failing to follow the doctrine
of primary custody. Were the BOP following the doctrine, his federal
sentence would be deemed to have begun on the day it was imposed
because he was in exclusive federal custody on that day. McHenry appeared
to seek either an order requiring him to be taken into federal custody and
designated to a federal facility or an order that the BOP retroactively
designate the ADC as the location for service of his federal sentence. He
additionally asked that he be given credit against his federal sentence for
the time he spent in custody prior to his sentencing.
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The BOP maintained in response that McHenry’s petition warranted
no relief for two reasons. First, he failed to exhaust his administrative
remedies before coming to federal court. Second, he is entitled to no relief
because he has not shown that he was in exclusive federal custody on the
day the federal sentence was imposed.
McHenry 	acknowledged 	in 	reply 	that 	he 	did 	not 	exhaust 	his
administrative remedies before coming to federal court. He maintained,
though, that his failure to do so should be excused. He maintained that he
attempted to exhaust his remedies but had no success in even initiating
the federal administrative process because he is currently in the custody
of the ADC and has no way of accessing the federal process. With respect
to the BOP’s second assertion, i.e., McHenry has not shown that he was in
exclusive federal custody on the day the federal sentence was imposed, he
alleged that he was indeed in exclusive federal custody on that day. In
support of his position, he alleged, in part, the following:
... Petitioner was taken into secondary custody on May 5, 2021,
on a writ of habeas corpus ad prosequendum. However, during
the time he was in secondary custody of federal authorities, the
State of Texas dismissed their charges. Secondary custody was
obtained from Bowie County, Texas, who exercised primary
custody over the petitioner. Petitioner was to be returned to
Bowie County, Texas, upon completion and resolution of his
federal case in the Eastern District of Texas.
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When the State of Texas dismissed their charges against
the petitioner, they automatically relinquished primary custody
to 	federal 	authorities. 	Primary 	custody 	did 	not 	somehow
magically transfer to the State of Arkansas. ...
...
Because petitioner was in primary federal custody at the
time of his sentencing in federal court due to the State of Texas
dismissing his charges, his federal sentence commenced on that
date. ...
See 	Docket 	Entry 	13 	at 	CM/ECF 	4-6. 	McHenry 	provided 	additional
clarification of his position by noting the following:
Petitioner is not challenging that his primary custody
status changed because of him being taken into custody under
the jurisdiction of a writ of habeas corpus ad prosequendum.
Rather, 	he 	is 	challenging 	that 	his 	primary 	custody 	status
changed due to the State of Texas dismissing its charges while
the 	petitioner 	was 	in 	secondary 	federal 	custody, 	thereby
rendering the habeas corpus ad prosequendum unnecessary and
invalid, resulting in the petitioner automatically being under
the primary custody of the U.S. Marshal Service and federal
authorities.
See Docket Entry 13 at CM/ECF 7.
The 	undersigned 	reviewed 	the 	parties’ 	pleading 	and 	exhibits,
particularly 	with 	respect 	to 	the 	exhaustion 	issue. 	The 	undersigned
determined 	that 	an 	additional 	response 	from 	the 	parties 	would 	be
beneficial on two questions, both of which the parties have now addressed:
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First, is this case premature? Specifically, if it is only after McHenry
enters federal custody that the BOP will compute the time remaining on
his federal sentence, including determining whether to designate the ADC
as the location for the concurrent service of his sentence and whether to
give him credit for the time he spent in custody prior to his sentencing. In
addition, the undersigned desired to know whether the challenges he
makes in the case at bar present “controversies” or are otherwise mature.
Second, notwithstanding the foregoing, is there a BOP administrative
remedy currently available to McHenry? If so, how he might gain access to
the remedy.
Analysis. 	The 	undersigned 	has 	thoroughly 	reviewed 	the 	parties’
pleadings and exhibits. Having done so, the undersigned finds that this case
should be dismissed without prejudice. The undesigned so finds for the
following reason.
Generally, 	a 	prisoner 	must 	exhaust 	his 	administrative 	remedies
before seeking habeas relief under 28 U.S.C. 2241. See Orasco v. Yates,
No. 2:22-cv-00156-BSM-ERE, 2002 WL 18027627 (E.D. Ark. Dec. 12, 2022),
report and recommendation adopted, No. 2:22-cv-00156-BSM, 2022 WL
18027631 (E.D. Ark. Dec. 30, 2022). The purposes of the requirement, and
the steps the prisoner must take, are as follows:
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... 	Although 	this 	judicially 	created 	exhaustion
requirement is not mandated by statute or a jurisdictional
prerequisite, see Lueth v. Beach, 498 F.3d 795, 797 n.3 (8th
Cir. 2007), it is designed to serve several purposes including:
(1) 	the 	development 	of 	the 	necessary 	factual
background upon which the claim is based; (2) the
exercise 	of 	administrative 	expertise 	and
discretionary 	authority 	often 	necessary 	for 	the
resolution of the dispute; (3) the autonomy of the
prison administration; and (4) judicial efficiency
from the settlement of disputes at the prison level.
Mason v. Ciccone, 531 F.2d 867, 870 (8th Cir. 1976) (citing
McKart v. United States, 395 U.S. 185, 194-195 (1969)).
The 	BOP 	has 	a 	four-step 	administrative 	process 	for
resolving 	inmate 	grievances: 	(1) 	an 	attempt 	at 	informal
resolution 	with 	prison 	staff; 	(2) 	submission 	of 	a 	formal
grievance 	to 	the 	Warden, 	on 	form 	BP-9, 	delivered 	to 	the
institution staff member designated to it; (3) an appeal of an
unfavorable 	Warden's 	decision 	to 	the 	appropriate 	Regional
Director, on form BP-10; and (4) an appeal of an unfavorable
Regional Director's decision to the General Counsel, on form BP-
11. 	See 	28 	C.F.R. 	542.13–542.18. 	Proper 	exhaustion 	of
administrative remedies “‘means using all steps that the agency
holds out and doing so properly (so that the agency addresses
the issues on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90
(2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th
Cir. 2002)).
See Orasco v. Yates, 2022 WL 18027627, 2–3. There are, though, exceptions
to the requirement. For instance, the requirement may be excused if
exhaustion would be futile. See Lueth v. Beach, 498 F.3d 795 (8th Cir.
2007).
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Here, it is undisputed that McHenry did not exhaust his administrative
remedies before coming to federal court. In fact, he acknowledges that he
did not exhaust his remedies before coming to federal court. The only
question is whether his failure to do so should be excused and the merits
of his claim addressed.
McHenry maintains that he attempted to exhaust his administrative
remedies but had no success in even initiating the federal administrative
process because he is currently in the custody of the ADC and has no way
of accessing the federal process. His inability to even initiate the process
is understandable because, as the BOP observes, he has no currently
available administrative remedy. In support of that assertion, the BOP
alleges, and the undersigned adopts in full, the following:
... a potential claim would not arise until McHenry is in
BOP custody and a calculation of his sentence is performed. At
present, there is no controversy to remedy. Further, because
he is currently in the Arkansas Division of Correction, McHenry
does not have access to BOP’s administrative remedy process.
He would have to initiate and complete that process prior to
presenting a claim to this Court. Once he is discharged from the
Arkansas Division of Correction and taken into BOP custody, he
would have an administrative remedy available for any dispute
regarding the execution of his sentence.
See Docket Entry 16 at CM/ECF 2.
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Because McHenry does not have a currently available administrative
remedy, this case is like Badger v. Bureau of Prisons, No. 2:19-cv-00140-
DPM-JTK, 	2020 	WL 	1873604 	(E.D. 	Ark. 	March 	5, 	2020), 	report 	and
recommendation adopted as modified, No. 2:19-cv-00140-DPM, 2020 WL
1873560 (Apr. 14, 2020). In that case, Badger, an ADC prisoner, filed a
petition pursuant to 28 U.S.C. 2241 and challenged the BOP’s computation
of his yet-to-be-served federal sentence. United States Magistrate Judge
Jerome 	T. 	Kearney 	found, 	inter 	alia, 	that 	the 	case 	presented 	no
“controversy,” finding the following:
Were the Court to find exhaustion futile under these
circumstances, the challenge remains premature. Under 18
U.S.C. 3585(a), a defendant’s federal sentence begins when he
“is received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official
detention facility at which the sentence is to be served.” The
BOP has authority under section 3585(b) to give a defendant
credit towards the service of a term of imprisonment for time
in detention not credited toward another sentence. However,
such a credit must occur after the defendant begins his federal
sentence, subject to administrative procedures promulgated by
the BOP. The BOP has not made a determination denying
Petitioner the sentence credit he believes he is entitled to
receive. Instead, it asserts it will consider the credit once
Badger is in its custody. Thus, at this time, no “controversy”
exists on the issue, and as such, the undersigned would still
recommend this action be dismissed, without prejudice, to
Petitioner's right to file if and when the BOP actually denies him
the credit on his federal sentence he believes he is entitled to
receive.
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See Id., 2020 WL 1873604, 4. United States District Judge D.P. Marshall Jr.,
adopted that part of Judge Kearney’s report and recommendation, finding
the following:
... the Court agrees that Badger's challenge is premature. When
Badger enters BOP custody, the Bureau will compute the time
remaining on his federal sentence. If Badger disagrees with that
calculation, then he may exhaust his administrative remedies
and file a petition for a writ of habeas corpus in the appropriate
Court at that time. But until that computation is completed,
this challenge is premature. ...
See Id., 2020 WL 1873560, 1. See also Magers v. United States, No. 6:22-
cv-488-JDK-JDL, 2024 WL 4834049, 2 (E.D. Tex. Oct. 2, 2024), report and
recommendation adopted, No. 6:22-cv-488-JDK, 2024 WL 4834028 (E.D.
Tex. Nov. 18, 2024). 1
1 	In Magers, a district court found the following:
As a matter of law, only the Attorney General, through the BOP,
may compute a prisoner's federal sentence and determine what credit he
should be given for time spent in custody before sentencing. [Citation
omitted]. The United States Court of Appeals for the Fifth Circuit has held
that until the Attorney General has calculated a sentence and determined
what credit should be given for time spent in prior custody, a petition for
writ of habeas corpus concerning this calculation does not present a case
or controversy that is ripe for review. Pierce v. Holder, 614 F.3d 158, 160
(5th Cir. 2010). In Pierce, a prisoner who was in state custody at the time
he filed his petition sought certain credit towards his federal sentence.
But because the petitioner was not in federal custody, the BOP had not
yet calculated his federal sentence. The court found that the district court
did not have jurisdiction to rule on the merits of the unripe petition
because the BOP had not made a final determination regarding the
calculation of the federal sentence. Id.
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Based on Badger and Magers, the undersigned finds that this case is
premature. It does not present a controversy that is ripe for review.
McHenry failed to exhaust his administrative remedies before coming to
federal court, and he must do so, and can only do so, after he enters the
custody of the BOP. This case is one in which exhaustion might produce
meaningful findings and conclusions. Exhaustion will also further the goals
of developing the necessary factual background and allow the BOP to
exercise its administrative expertise and discretionary authority.
After McHenry enters the custody of the BOP, the BOP will compute
the time remaining on his federal sentence. If McHenry disagrees with the
calculation, and only after he exhausts his administrative remedies, he may
challenge the calculation by means of a petition for writ of habeas corpus.
Recommendation. Given the foregoing, the undersigned recommends
that this case be dismissed without prejudice. All requested relief should
be denied, and judgment should be entered for the BOP.
DATED this 6th day of November, 2025.
__________________________________
UNITED STATES MAGISTRATE JUDGE
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