United States of America v. Otoniel Alvarez Mercado, a/k/a Otoniel Alvarez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-8082
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OTONIEL ALVAREZ MERCADO, a/k/a Otoniel
Alvarez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-97-297-V)
Submitted: June 11, 2002 Decided: June 21, 2002
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Otoniel Alvarez Mercado, Appellant Pro Se. Robert James Conrad,
Jr., United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
In February 1999, while already serving a related state
sentence, Otoniel Alvarez Mercado was sentenced in federal court to
eighty-four months imprisonment after he pled guilty to conspiracy
to possess with intent to distribute and to distribute cocaine and
marijuana. On September 21, 2001, Mercado filed a “Nunc Pro Tunc”
motion seeking jail credit on his federal sentence for the time
spent in state custody on the related conviction. The district
court denied the motion on the merits, and Mercado appealed.
We view Mercado’s motion as a request for habeas relief under
28 U.S.C. § 2241 (1994) filed in the wrong district court (Mercado
is incarcerated in Jesup, Georgia) and without exhausting the
Bureau of Prisons’ administrative remedies. We therefore affirm the
district court’s dismissal of Mercado’s motion, but we modify the
district court’s order to reflect a dismissal without prejudice for
failure to exhaust administrative remedies, rather than a dismissal
based on the merits. We expressly decline to address the merit or
lack thereof of Mercado’s motion, so that Mercado remains free to
file a § 2241 petition in the proper court after exhausting his
administrative remedies.
We dispense with oral argument, because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED

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