Gilbert v. Alatary

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DERRICUS GILBERT,
Petitioner,
v.
D. ALATARY, ACTING WARDEN,
FCI GREENVILLE
Respondent.
Case No. 25-CV-01842-SPM
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Petitioner Derricus Gilbert, an inmate currently incarcerated at the Federal
Correctional Institution in Greenville (“FCI Greenville”), filed the instant Petition for
a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). The case is now before
the Court for preliminary review of the petition under Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts. Rule 4 provides that upon
preliminary consideration by the district judge, “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner.” See id. 	Pursuant to Rule 1(b), the Court has discretion to apply these
Rules to other habeas corpus cases. For the reasons set forth below, the Petition is
DENIED.
On November 14, 2017, a federal grand jury returned an Indictment charging
Gilbert with one count of Conspiracy to Distribute Methamphetamine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count One). See United States v. Derricus
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Gilbert, Case No. 3:17-cr-00040-RLY-MPB-04 (S.D. Ind. 2017). On March 5, 2019,
Gilbert agreed to the terms of a plea agreement and pleaded guilty to Count One as
charged before the United States District Court for the Southern District of Indiana.
See id. On August 9, 2019, the District Court sentenced Gilbert to a term of
incarceration of 180 months, to be followed by a period of Supervised Release of five
years.1 See id. Gilbert is currently scheduled for release from custody on September
24, 2029. See Find an Inmate, F ED. BUREAU OF P RISONS , [https://perma.cc/7LP5-
BWHF] (last visited October 30, 2025) (search under “Find By Number” tab for BOP
Register No. 16003-028).
In his Petition, Gilbert alleges that the duration of his sentence is improperly
calculated due to a misapplication of the First Step Act (“FSA”). (Doc. 1). Specifically,
he raises three grounds: (1) that he spent 27 months in pretrial federal custody and
claims entitlement to 10 days of credit per month; (2) that he was not credited for
eight weeks spent in transit “over the years”; and (3) that did not receive FSA credit
for six months where “[e]ven after being sentenced I was held for another 6 months
in pretrial detention.” (Id., p. 6). Gilbert first filed a Request for Administrative
Remedy (#1242871-F1) with the Warden’s Office at FCI Greenville on June 4, 2025,
which was denied by Warden T. Lillard on June 5, 2025. (Id., p. 9). Gilbert pleads in
his Petition that he appealed the denial of his Administrative Remedy and filed a BP-
10 form on June 8, 2025. (Id., p. 2). Gilbert states that it has been three months with
no response to his appeal and that he subsequently filed the instant Petition on
1 Gilbert was additionally sentenced to pay a special assessment of $100.00. See United States v.
Derricus Gilbert, Case No. 3:17-cr-00040-RLY-MPB-04 (S.D. Ind. 2017).
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September 29, 2025. (Id.). Gilbert has requested for this Court to grant him the FSA
time credit to which he claims he is entitled. (Id., p. 7).
A petitioner may seek a writ of habeas corpus pursuant to 28 U.S.C. § 2241 to
challenge the fact or duration of the petitioner’s confinement. Preiser v. Rodriguez,
411 U.S. 475, 490 (1973). The Attorney General, acting through the BOP, calculates
a 	defendant’s 	sentence 	“as 	an 	administrative 	matter 	when 	imprisoning 	the
defendant.” United States v. Wilson, 503 U.S. 329, 335 (1992). A federal prisoner may
challenge the execution of his sentence in a petition filed under 28 U.S.C. § 2241 in
the district of incarceration. See Taylor v. Lariva, 638 F. App’x 539, 541 (7th Cir.
2016) (citing Wilson, 503 U.S. at 335). The Seventh Circuit has expressly held that
“[a] district court has no power to give credit for time served; that authority rests
solely with the BOP.” Kane v. Zuercher, 344 F. App’x 267, 268 (7th Cir. 2009) (citing
United States v. Wilson, 503 U.S. 329, 334–35 (1992)); see also 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)). The Court clarified, though, that a district court
“may review under § 2241 the BOP’s ruling on an inmate’s request for presentence
credit.” Id. at 268−69 (citing United States v. Koller, 956 F.2d 1408, 1417 (7th Cir.
1992).
Prior to bringing a § 2241 petition in the district court, however, a petitioner
is required to exhaust his administrative remedies. See Ihmoud v. Jett, 272 F. App’x
525, 526 (7th Cir. 2008) (citing Richmond v. Scibana 387 F.3d 602, 604 (7th Cir.
2004); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004); McGhee v. Clark, 166 F.3d
884, 887 (7th. Cir. 1999)). To exhaust administrative remedies, petitioners must “file
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complaints and appeals in the place, and at the time, the prison’s administrative rules
require.” Pozo v. McCaughtry, 286 F.3d, 1022, 1025 (7th Cir. 2002). The BOP’s
administrative remedy process consists of four tiers. 28 C.F.R §§ 542.13–15. First, an
inmate must attempt to resolve the issue informally with a counselor using a BP-8
form. Id. Second, the inmate must file a formal grievance with the warden (BP-9). Id.
Third, the inmate may appeal to the BOP Regional Director (BP-10). Id. Finally, the
inmate may appeal to the BOP General Counsel (BP-11). Id. Response times to
Requests and Appeals are governed by 28 C.F.R. § 542.18. The regulation provides
that once an appeal is filed, the Regional Director must respond within thirty
calendar days. Id. The response period may be extended once, for an additional thirty
days, if more time is needed to reach an appropriate decision. See id. The regulation
further states that “[i]f the inmate does not receive a response within the time allotted
for reply, including extension, the inmate may consider the absence of a response to
be a denial at that level.” Id.
Here, Gilbert states that he has filed a BP-10 form directed to the BOP
Regional Director on June 8, 2025, and that, as of September 29, 2025, he had not
received a response. (See Doc. 1). Because more than three months have passed since
he filed the appeal, and he has not received a response, Gilbert may treat the lack of
response as a denial and proceed to the next level of review. See 28 C.F.R. § 542.18;
Robinson v. Williams, No. 3:21-CV-296-DWD, 2021 WL 3666230, at *1 (S.D. Ill. July
29, 2021) (“Even if her claim that Warden Williams failed to respond to her initial
BP-9 form is true, she should have proceeded with the appeal process as if her BP-9
had been denied.”); see also Day v. Daniels, 673 F. App’x 582, 584 (7th Cir. 2017).
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While it is true that 28 C.F.R. § 542.15(b)(1) states that an inmate must attach his
response from the Regional Director in his appeal to the General Counsel, the
Seventh Circuit has held that when the Regional Director fails to respond to a BP-10,
an appeal to the General Counsel may be made “without the need to attach the
nonexistent 	response.” 	Ingram 	v. 	Watson, 	67 	F.4th 	866, 	870 	(7th 	Cir. 	2023).
Therefore, despite the Regional Director’s lack of response, Gilbert still has the option
to appeal directly to the General Counsel. It follows that Gilbert has not yet fully
exhausted 	his 	administrative 	remedies. 	Gilbert’s 	failure 	to 	exhaust 	his
administrative remedies is controlling and compels this Court to dismiss his Petition.
C ONCLUSION
For the reasons set forth herein, Derricus Gilbert’s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 is DISMISSED without prejudice. The Clerk
of Court is DIRECTED to close this case on the Court’s docket.
IT IS SO ORDERED.
DATED: October 30, 2025
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
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