Opinion
Case No. CIV-20-1152-HE
11-30-2020
JAMES RHEA COOLEY, Petitioner, v. S.R. GRANT, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a federal prisoner appearing pro se, has filed this action seeking habeas corpus relief under 28 U.S.C. § 2241. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). Upon review in accordance with Rule 4, Rules Governing § 2254 Cases, the undersigned finds that it is clear from the face of the Petition (Doc. 1) that Petitioner has failed to exhaust his administrative remedies. Therefore, it is recommended that the petition be dismissed upon filing, and Petitioner's pending motions to proceed in forma pauperis (Doc. 2) and to appoint counsel (Doc. 3) be denied as moot.
In the court's discretion, the Rules Governing § 2254 Cases may be applied to other habeas actions, such as those brought under 28 U.S.C. § 2241. Rule 1(b), Rules Governing § 2254 Cases.
BACKGROUND
Petitioner is a federal inmate currently incarcerated at the Federal Correctional Institution in El Reno, Oklahoma. (Doc. 1 at 1). Petitioner is serving a six-month sentence of imprisonment pursuant to the revocation of his supervised release in Case No. CR-18-213-SLP, in the United States District Court for the Western District of Oklahoma. United States v. Cooley, No. CR-18-213-SLP (W.D. Okla.) (Doc. 23, Amended Judgment, at 3). Petitioner began serving his sentence on June 22, 2020. (Id.)
Petitioner does not challenge his conviction or revocation but objects to the calculation and crediting of his sentence by the United States Bureau of Prisons (BOP) under the First Step Act of 2018. (Doc. 1 at 2, 7). Petitioner alleges that the BOP "failed to award 45 days of earned time credits" against his sentence of imprisonment, and thus "failed to transfer [him] to supervised release" on November 6, 2020, "upon earned time credits becoming equal to his remaining sentence." (Id. at 7). Petitioner raised this issue with BOP "through email to unit staff." (Id.) He admits that he has not otherwise appealed the decision, filed a grievance, or sought an administrative remedy, because the "BOP has failed to post a program statement, futility of administrative remedy process due to the time required, and lack of staff knowledge and assistance." (Id. at 2-3). He further contends that "the matter is one of personal freedom and statutory interpretation by the court." (Id. at 7).
SCREENING REQUIREMENT
Rule 4 of the Rules Governing § 2254 Cases requires the court to promptly examine and summarily dismiss habeas petitions prior to any answer or other pleading by the state, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4, Rules Governing § 2254 Cases. This action by the court on its own initiative will not prejudice Petitioner since he has an opportunity to be heard on the issues raised by filing a timely objection to this Report and Recommendation. See Smith v. Dorsey, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (unpublished op.) (finding "no due process problem" where magistrate judge raised issue of procedural bar sua sponte and petitioner had opportunity to object to report and recommendation prior to district court's adoption thereof) (citing Hardiman v. Reynolds, 971 F.2d 500, 502-05 (10th Cir. 1992)).
ANALYSIS
Petitioner has failed to exhaust his administrative remedies. Federal prisoners must exhaust the administrative remedies offered by the BOP before seeking § 2241 habeas relief. Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010); see also Holman v. Booker, 1998 WL 864018, at *2 (10th Cir. Dec. 14, 1998) (unpublished op.) ("'[R]esponsibility for the computation of the service of a sentence is an administrative responsibility conferred upon the attorney general acting through the Bureau of Prisons. For this reason, and because the agency is in a superior position to investigate the facts, judicial intervention is usually deferred until administrative remedies have been exhausted.'") (quoting Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir.1986)). The Tenth Circuit has stated,
BOP regulations require a prisoner to attempt informal resolution of a complaint and, if that fails, to submit a formal request for an administrative remedy to the institution. If the inmate does not obtain a satisfactory resolution from the institution itself, he then may file a regional appeal followed by a national appeal.Garza, 596 F.3d at 1204 (citing 28 C.F.R. § 542.13-15).
Petitioner states that he has not sought any administrative or other remedy. (Doc. 1 at 2). Petitioner states that he has not filed any other petition, application, or motion about the issues raised in the petition. (Id. at 6). Aside from an informal email, Petitioner has admittedly not attempted any administrative means to challenge the application of earned time credits towards his sentence with the BOP. (Id. at 7). Petitioner may not exhaust "administrative remedies by, in essence, by failing to employ them." See Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002). As the Tenth Circuit concluded in Garza, petitioner "must go through [the] administrative remedy process as a prerequisite to filing a habeas petition." Garza, 596 F.3d at 1205.
The court takes judicial notice that the Petitioner did, in fact, raise this same argument in his Motion for Compassionate Release and or Reduction in Sentence in United States v. Cooley, No. CR-18-213-SLP (Doc. 24), pending before the district court. --------
"A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile." Id. at 1203. To establish futility, Petitioner "must be able to demonstrate that his administrative appeals would founder because of a procedural bar, or because of some binding adverse administrative precedent." Holman, 1998 WL 864018, at *4. Petitioner asserts that "BOP has failed to post a program statement." (Doc. 1 at 3). He claims the administrative remedy process would be futile "due to the time required, and lack of staff knowledge and assistance." (Id.) While it is true that Petitioner is nearing the end of his term of imprisonment, and true that the time required for Petitioner to exercise his administrative remedies may exceed his time in prison, this does not amount to futility under the law.
RECOMMENDATION
For these reasons, it is recommended that the petition for a writ of habeas corpus under 28 U.S.C. § 2241 be dismissed without prejudice to the re-filing for failure to exhaust administrative remedies, and that Petitioner's motions to proceed in forma pauperis (Doc. 2) and to appoint counsel (Doc. 3) be denied as moot. Petitioner is advised of his right to object to this Report and Recommendation by December 21, 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all matters referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 30th day of November, 2020.
/s/_________
AMANDA MAXFIELD GREEN
UNITED STATES MAGISTRATE JUDGE