Kevin Kane v. Jerome Zuercher

*After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 27, 2009 *
Decided September 1, 2009
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐1521
KEVIN KANE,
Petitioner‐Appellant,
v.
JEROME ZUERCHER,
Respondent‐Appellee.
Appeal from the United States District
Court for the Central District of Illinois.
1:08‐cv‐01159‐MMM
Michael M. Mihm,
Judge.
O R D E R
Kevin Kane petitioned for a writ of habeas corpus to compel the Bureau of Prisons to
credit against his federal prison term the time he served in state custody before sentencing. See
28 U.S.C. § 2241. The district court dismissed Kane’s petition without prejudice on the ground
that he filed it without first exhausting his administrative remedies. We affirm the judgment.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐1521 Page 2
Kane was arrested by Illinois authorities in 2002 for home invasion and pleaded guilty
to that charge in 2003. Pending his state sentencing, Kane was indicted by a federal grand jury
for attempted possession with intent to distribute a controlled substance, see 21 U.S.C. §§ 846,
841(a)(1), and possession of a firearm in furtherance of a drug offense, see 18 U.S.C.
§ 924(c)(1)(A). He was turned over to federal authorities in July 2003 and, after pleading guilty
to the federal charges, remained housed in the Metropolitan Correctional Center in Chicago
until June 8, 2004. On that day he appeared in state court and was sentenced on the home‐
invasion charge to four years imprisonment, which the Illinois court deemed satisfied by time
served. Later that month state authorities released Kane into federal custody where, at last, a
sentence of 78 months was imposed.
Kane was displeased that he would have to serve his entire federal sentence, having
already spent approximately two years in jail, almost a year of which was at the Metropolitan
Correctional Center, a federal facility. Using different procedural vehicles, Kane filed three
motions in which he asked the district court to reduce his sentence based on his presentence
incarceration. We are asked to review only the last of those, Kane’s § 2241 petition, which the
district court dismissed without prejudice after the government pointed out that Kane had not
initiated, let alone exhausted, his administrative remedies with the BOP.
A district court has no power to give credit for time served; that authority rests solely
with the BOP. See United States v. Wilson, 503 U.S. 329, 334‐35 (1992) (interpreting 18 U.S.C.
§ 3585); United States v. McGee, 60 F.3d 1266, 1272 (7th Cir. 1995); United States v. Pardue, 363
F.3d 695, 699 (8th Cir. 2004). A district court, though, may review under § 2241 the BOP’s ruling
on an inmate’s request for presentence credit. See United States v. Koller, 956 F.2d 1408, 1417 (7th
Cir. 1992); Rogers v. United States, 180 F.3d 349, 358 (1st Cir. 1999). But even that review was
unavailable to Kane because he did not address his request to the BOP in the first instance, and
the district court reasonably concluded that he should have taken that step.
Although, as the government concedes, there is no express exhaustion requirement in
28 U.S.C. § 2241, a district court is entitled to require a prisoner to exhaust the administrative
remedies that the BOP offers before it will entertain a petition. See generally McCarthy v.
Madigan, 503 U.S. 140, 144 (1982); see also Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997)
(requiring exhaustion). And the BOP has an extensive set of procedures available to inmates.
See 28 C.F.R. §§ 542.10 to 542.16. We need not decide here how far the exhaustion requirement
goes or what exceptions should be recognized; we may assume that exhaustion would not be
required if it were futile, and we may also assume (as the government argues) that a district
court’s decision to require exhaustion should be reviewed for an abuse of discretion.

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No. 09‐1521 Page 3
Kane concedes that he did not use administrative channels to ask the BOP for
presentence credit, but he argues on appeal that he should be excused from the exhaustion
requirement because, as he reads the governing statute, 18 U.S.C. § 3585(b), the BOP is barred
from awarding him the credit he wants and thus exhaustion would be futile. The state of
Illinois gave Kane credit for the time he spent in custody before his federal sentencing,
including the months he was housed in the Metropolitan Correctional Center, and thus, Kane
reasons, the BOP is precluded from counting that same time against his federal sentence. See
18 U.S.C. § 3585(b); United States v. Ross, 219 F.3d 592, 594 (7th Cir. 2000); United States v. Rivers,
329 F.3d 119, 121 n.1 (2d Cir. 2003); Allen v. Crabtree, 153 F.3d 1030, 1033 (9th Cir. 1998). Kane
may well be correct that the BOP’s hands are tied, but he also may be mistaken. Until he asks,
we cannot know whether it may yet be able to grant some relief. Compare Porter v. Nussle, 534
U.S. 516, 524‐25 (2002) (noting, in the context of the Prison Litigation Reform Act, that
exhaustion often may lead to changes in conditions or circumstance that resolve, in whole or
in part, the grievance). The district court here did not abuse its discretion when it decided that
Kane must ask the BOP first for whatever it is he wants and give the BOP an opportunity to
decide whether it is empowered or persuaded to do anything for him.
Accordingly, the judgment of the district court is AFFIRMED.

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