United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
Tirado initiated this action by filing a petition for a writ
of habeas corpus under 28 U.S.C. § 2241 (Doc. 1).
Respondent filed a response in opposition to the petition
(Doc. 13) to which Mr. Tirado replied (Doc. 14). Upon
consideration, the petition will be denied.
Tirado is a prisoner currently incarcerated in the Florida
Department of Corrections. In state court, he was sentenced
on July 15, 2016, to fifteen years in prison for robbery with
a deadly weapon and to five years in prison for possession of
a controlled substance. In August 2016, Mr. Tirado was charged
by the United States with four counts of felon in possession
of a firearm. See United States v. Tirado, Case No.
8:14-cr-330-T-27JSS (M.D.Fla.) at docket entry 1. In October
2016, he pleaded guilty, pursuant to a plea agreement, to
Count One of the Indictment. Id. at docket entries
27, 28. He was sentenced on January 9, 2017, to 84 months in
prison, concurrent to the 15-year sentence he was serving in
Florida. Id. at docket entries 38, 41. After he was
sentenced in federal court, Mr. Tirado was returned to the
Florida Department of Corrections where he remains
Tirado contends that he should not have been returned to the
custody of the Florida Department of Corrections because the
United States District Judge, the Honorable James D.
Whittemore, ordered Mr. Tirado "'to be remanded into
[Federal Bureau of Prisons] custody to serve [his] 84-month
sentence in federal custody." Mr. Tirado moves this
Court to direct Respondent to transfer him to the custody of
the Bureau of Prisons ("BOP").
response, Respondent contends that the petition should be
dismissed because (1) Mr. Tirado failed to exhaust his
available administrative and state court remedies prior to
initiating this action, and (2) the BOP designated the
Florida Department of Corrections as the facility where Mr.
Tirado was to serve his federal sentence. In reply, Mr.
Tirado argues that he was not required to exhaust state court
remedies prior to filing his petition because "this is a
federal case which derived from a federal prosecution and
resulted in a federal sentence. . . ." He further argues
that Judge Whittemore "specifically ordered that
Petitioner complete his federal sentence in the B.O.P. and
afterwards be remanded to state custody in FDOC."
Mr. Tirado failed to exhaust administrative and state court
remedies prior to filing his petition
to filing a § 2241 habeas petition in federal court, a
petitioner must exhaust available administrative remedies.
Davis v. Warden, FCC Coleman-USP, 661 Fed.Appx. 561,
562 (11th Cir. 2016) (A federal prisoner who seeks habeas
corpus relief under 28 U.S.C. § 2241 "must [first]
exhaust his available administrative remedies before he can
obtain relief") (citation omitted). It is apparent that
Mr. Tirado failed to exhaust available administrative and
state court remedies before filing his petition in this
Court. Accordingly, the petition is subject to dismissal.
The petition is without merit
Mr. Tirado had exhausted his administrative and state court
remedies, he has failed to show entitlement to any relief.
The judgment in Mr. Tirado's federal criminal case shows
that Judge Whittemore committed Mr. Tirado "to the
custody of the" BOP and recommended
"confinement at Coleman [Federal Correctional
Complex]," See United States v. Tirado, Case
No. 8:14-cr-330-T-27JSS (M.D.Fla) at docket entry 41, p. 2.
Notwithstanding the recommendation, the BOP has discretion to
designate a state institution as the official facility for
service of the federal sentence. See 18 U.S.C.
§ 3621(b) ("The Bureau may designate any available
penal or correctional facility that meets minimum standards
of health and habitability established by the Bureau,
whether maintained by the Federal Government or
otherwise and whether within or without the judicial
district in which the person was convicted, that the Bureau
determines to be appropriate and suitable. . . .")
(emphasis added); United States v. Claudio, 499
Fed.Appx. 865, 868 (11th Cir. 2012) ("The BOP has the
exclusive discretion to designate any institution where
prisoners may be held.") (citation and internal
quotation marks omitted); Brown v. Atkinson, 2010 WL
3659634, at *4 (S.D. Fla. June 11, 2010), report and
recommendation adopted, 2010 WL 3659587 (S.D.
Fla. Sept. 15, 2010) ("A federal district court does not
have the authority to order an inmate's placement in a
particular facility or program.").
exercised its discretion in designating the Florida
Department of Corrections as the facility in which Mr. Tirado
will serve his federal sentence (which runs concurrent with
his state sentences) (see Doc. 13, p. 20). Mr. Tirado
therefore has failed to demonstrate that he is entitled to a
transfer to a federal correctional facility.
Mr. Tirado's petition for a writ of habeas corpus under
28 U.S.C. § 2241 (Doc. 1) is DISMISSED.
The Clerk shall enter judgment against Mr.
Tirado and close this case. To the extent a certificate of
appealability is required, it is DENIED. And
since the Court has denied a certificate ...