Opinion
CIV-22-339-SLP
09-19-2022
CHARLES HEAD, Petitioner, v. WARDEN K. ZOOK, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a federal prisoner appearing pro se, filed a petition for habeas corpus relief under 28 U.S.C. § 2241 challenging the Bureau of Prisons' (BOP) calculation of his sentence. Doc. 1. Petitioner alleges the BOP has failed to timely credit his sentence with one year of good time credits he says he earned under the First Step Act of 2018 (FSA). Id. at 2, 6. He requests the Court “issue an injunction compelling the BOP to immediately calculate and award” him with one year of FSA time credits which he earned “by participating in programs and working while in the BOP.” Id. at 7.
United States District Judge Scott L. Palk has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4.
Citations to a court document are to its CM/ECF designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
“The [FSA] provides eligible inmates the opportunity to earn 10 or 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs (EBRR programs) and Productive Activities (PAs).” Doc. 19, Ex. 1, at 1-2 (citing 18 U.S.C. § 3632(d)(4)(A)) (footnotes omitted).
The Court ordered a response and Respondent moved to dismiss the petition. Doc. 19. Respondent argues that dismissal is required because: (1) Petitioner has not exhausted his administrative remedies; (2) that Warden Zook is not the proper Respondent because Petitioner is no longer in this Court's jurisdiction; and (3) Petitioner's claim is premature and, as such, it fails on the merits. Doc. 19, at 4-12. Petitioner replied to the motion claiming any further exhaustion attempts are futile and that his claim is not premature because his injury accrued when the BOP failed to credit his sentence on January 22, 2022. Doc. 20, at 5-6. The Court should deny the petition on the merits.
I. Petitioner's background.
Petitioner was convicted and sentenced in the United States District Court for the Eastern District of California in 2014. Doc. 19, Exs. 2-3. In Case No. 2:08CR00093-001, Petitioner was found guilty of one count of Conspiracy to Commit Mail Fraud, in violation of 18 U.S.C. § 1349, and four counts of Mail Fraud, in violation of 18 U.S.C. § 1341. Id. Ex. 2, at 1-2. The trial court sentenced Petitioner to concurrent sentences of 210 months' imprisonment on each count. Id. Ex. 2, at 3-4. In Case No. 2:08CR00116-001, Petitioner was found guilty of one count of Conspiracy to Commit Mail Fraud, in violation of 18 U.S.C. § 1349, and three counts of Mail Fraud, in violation of 18 U.S.C. § 1341. Id. Ex. 3, at 1-2. The trial court sentenced Petitioner to 210 months' imprisonment on each count to run concurrently with each other but consecutively to his sentence in Case No. 2:08CR00093-001, for a total term of 420 months' imprisonment. Id. Ex. 3, at 3; Ex. 4, at 1. The BOP projects Petitioner's release date, via good conduct time, is February 14, 2041. Id. Ex. 1, at 7-8.
In January 2022, the BOP was housing Petitioner at the Federal Correctional Institution (FCI) in Cumberland, Maryland. Doc. 1, at 2. Petitioner states he engaged in the “administrative remedy process” by submitting a “demand[] that [he] receive [his] FSA time credits earned which amount to one year of FTC's.” Id. Petitioner suggests his demand was denied when the “BOP staff indicated that [his] challenge was to a BOP policy.” Id. Petitioner did not appeal the decision. Id. He explains his failure to appeal by alleging that he was “prevented from utilizing the administrative remedy process due to the prison staff” and that his “issue concerns BOP policy,” making any appeal “futile.” Id. at 3.
The BOP transported Petitioner to the Federal Transfer Center (FTC) in Oklahoma City sometime in April 2022. Doc. 14, at 1; Doc. 20, at 3. Petitioner declares under penalty of perjury that he placed his petition for writ of habeas corpus in the prison mail system at FTC Oklahoma City on April 10, 2022. Doc. 1, at 8. The postmaster postmarked the envelope containing the petition on April 21, 2022. Doc. 1, Att. 1. And the Clerk of Court received and filed the petition in this Court on April 25, 2022. Doc. 1. Sometime around the third week of April, the BOP transported Petitioner to FCI Victorville for a time and then to his current location of FCI Mendota, both in California. Doc. 9, Att. 1, at 1; Doc. 14, at 2.
II. This Court retains jurisdiction over the petition even though the BOP transferred Petitioner to other facilities.
Respondent, the warden of the FTC in Oklahoma City, asserts this Court lacks subject matter jurisdiction and argues that he is not the proper respondent because the BOP is no longer housing Petitioner in this district. Doc. 19, at 1, 7-8. The Court disagrees.
“[T]he proper respondent to a habeas petition is ‘the person who has custody over [the petitioner].'” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (quoting 28 U.S.C. § 2242). Typically, this individual is “the warden of the facility where the prisoner is being held.” Id. at 435.
When Petitioner filed his petition, the BOP was housing him at the FTC in Oklahoma City. Doc. 1. The BOP has since transferred him to another facility in California. Doc. 12. Because of this transfer, Petitioner's immediate physical custodian is no longer within this Court's jurisdiction. But this Court “acquired jurisdiction” when Petitioner “filed his habeas petition while incarcerated” at the FTC in Oklahoma City. Pinson v. Berkebile, 604 Fed.Appx. 649, 652-53 (10th Cir. 2015). Petitioner's transfer and accompanying custodial change “does not defeat that initial jurisdiction.” Id. at 653.
Respondent suggests Petitioner was no longer at FTC Oklahoma City when he filed his petition. Doc. 19, at 8. But the Court considers his petition filed as of April 10, 2022-the date he gave it to FTC officials for mailing. See, e.g., United States v. Bojorquez-Villalobos, 632 Fed.Appx. 466, 469 (10th Cir. 2015) (explaining that, under the “prison mailbox rule,” “a prisoner's submission is deemed ‘filed' when it's given to prison authorities for mailing”).
Since “Respondent has not sought substitution of party, the U.S. Attorney, on behalf of the BOP, and the currently named Respondent in this action,” would be responsible for implementing the Court's directives in this case. Atkins v. Garcia, 816 F.Supp.2d 1108, 1117 (D. Colo. 2011); see Padilla, 542 U.S. at 441 (explaining that “when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release”). But because the undersigned recommends that the Court deny the petition, such a concern is moot.
See also United States v. Wilson, 503 U.S. 329, 335 (1992) (“After a district court sentences a federal offender, the Attorney General, through the BOP, has the responsibility for administering the sentence.” (citing 18 U.S.C. § 3621(a))); In re Hall, 988 F.3d 376, 379 (7th Cir. 2021) (granting prisoner's request for mandamus relief from the transfer of his habeas proceeding to another district after finding that the Bureau of Prisons had been the federal prisoner's “ultimate custodian” throughout the proceedings and thus there was “a respondent within the jurisdiction of the original court” that had the authority to comply with any order that the court issued); Lee v. English, 2019 WL 3891147, at *4 (D. Kan. Aug. 19, 2019) (finding that jurisdiction attached at the initial filing and was not destroyed by a transfer and stating that “[t]he U.S. Attorney, on behalf of the BOP, and the current Respondent would be responsible for implementing the directives of the Court.”), aff'd sub nom. Jones v. English, 817 Fed.Appx. 580 (10th Cir. 2020).
III. Petitioner has not exhausted his administrative remedies, but any further exhaustion attempts would be futile because the BOP has already decided the issue against Petitioner.
Exhaustion of available administrative remedies is a prerequisite to federal habeas corpus relief pursuant to 28 U.S.C. § 2241. See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). A petitioner can satisfy the exhaustion requirement through proper use of the available administrative procedures. See Woodford v. Ngo, 548 U.S. 81, 93 (2006) (addressing proper exhaustion of administrative remedies). “The burden of showing exhaustion rests on the petitioner in federal habeas corpus actions.” Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981) (per curiam); see also Jones v. Davis, 366 Fed.Appx. 942, 944 (10th Cir. 2010).
The Attorney General has vested the BOP with authority to determine issues related to the “commitment, control, or treatment of persons . . . charged with or convicted of offenses against the United States,” including the calculation of sentence credits. See 28 C.F.R. § 0.96. If a prisoner contends that the BOP has miscalculated his or her sentence or release date, then the BOP has the authority to correct that error in the first instance through its administrative remedy procedure. See 28 C.F.R. §§ 542.10 to 542.19; see also Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986) (“By statute, responsibility 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.”).
The BOP's procedure allows “an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.” 28 U.S.C. § 542.10(a). Generally, a federal prisoner exhausts administrative remedies by trying to resolve the matter informally and then completing all three formal steps by filing an administrative remedy request with institution staff, as well as regional and national appeals. Id. §§ 542.13 to 542.15. An inmate has twenty days to complete informal resolution and file a formal written administrative remedy request. Id. § 542.14(a). An inmate has twenty days to appeal to the appropriate regional director and thirty days to file a national appeal to the BOP Central Office. Id. § 542.15(a). These deadlines can be extended if the inmate shows a valid reason for a delay. Id. §§ 542.14(b), 542.15(a).
Petitioner alleges he used the “administrative remedy process” at FCI Cumberland when he “demanded that [he] receive [his] FSA credits.” Doc. 1, at 2. He admits he has not exhausted his administrative remedies but asserts it was through no fault of his own. Id. at 3; Doc. 14, Att. 1; Doc. 20, at 2-3. He also argues any appeal would be futile because his “issue concerns BOP policy.” Doc. 1, at 3.
In his response to the motion to dismiss, Petitioner alleges that he “attempted to file grievances while he was confined at FCI Cumberland in January 2022 and was assaulted by the prison's captain as a result.” Doc. 20, at 2. “Due to fear of further retaliation, [he] did not file an appeal to the BOP's response to his grievance concerning his First Step Act earned time credits.” Id.
After his transfer, Petitioner claims he attempted again to exhaust his administrative remedies at the FTC in Oklahoma City but, because he was in COVID-19 quarantine, “the prison staff would not make rounds to his housing unit with the necessary forms or respond to [his] numerous requests for grievance forms.” Id. at 3. He argues that, because of these circumstances, he need not “make further attempts at exhaustion.” Id.
“A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile.” Garza, 596 F.3d at 1203. But the futility exception is “narrow,” and the Court generally applies it “when administrative relief is ‘effectively foreclosed.'” Reyna v. Ledezma, 415 Fed.Appx. 926, 927 (10th Cir. 2011) (quoting Goodwin v. Oklahoma, 923 F.2d 156, 158 (10th Cir. 1991)).
Even if the Court assumes as true Petitioner's claim that prison officials at FCI Cumberland and FTC Oklahoma City impeded his efforts to appeal his grievance, the BOP is no longer housing him at those facilities. And the BOP's administrative procedures allow for an extension of time for filing an appeal if an inmate establishes “a valid reason for [the] delay.” 28 C.F.R. § 542.14(b).As Petitioner has asserted what he considers valid reasons for his delay in appealing his grievance, the BOP has not effectively foreclosed his administrative remedies. Still it would be a waste of judicial resources to grant Respondent's motion to dismiss based on Petitioner's failure to exhaust.
A valid reason means “a situation which prevented the inmate from submitting the request within the established time frame,” including “an extended period in-transit during which the inmate was separated from documents needed to prepare the Request or Appeal,” and “an extended period of time during which the inmate was physically incapable of preparing a Request or Appeal.” 28 C.F.R. § 542.14(b).
Respondent, on behalf of the BOP, has provided the Court with its final resolution of Petitioner's request for FSA credits. See Doc. 19, Ex. 1. Robert Clark, Supervisory Attorney for the BOP, admits Petitioner “is eligible to earn FSA” time credits. Id. Ex. 1, at 7. Mr. Clark states, however, that the BOP will not apply those credits to Petitioner's sentence “until the amount of earned [credits] is equal to the remainder of [Petitioner's] imposed term of imprisonment,” which would be sometime in 2039. Id. Based on this statement, the BOP would clearly deny Petitioner's claim at every administrative level. It would thus be futile for Petitioner to pursue further administrative remedies. See, e.g., Bun v. Wiley, 351 Fed.Appx. 267, 268 (10th Cir. 2009) (“[The Court] generally appl[ies] the [futility] exception when there has been an adverse decision disposing of the precise issue raised by the petitioner.”); Torres v. Peterson, No. CIV-04-935-C, 2004 WL 3354509, at *2 (W.D. Okla. Nov. 29, 2004) (“Because Petitioner was denied relief based on BOP policy, further attempts to exhaust administrative remedies would be futile, as BOP officials at other levels of review would rely on the same policy to deny relief.”), adopted, Doc. 15 (W.D. Okla. Jan. 11, 2005). The undersigned therefore recommends the Court deny the petition on the merits.
IV. The BOP does not have to apply FSA credits to Petitioner's sentence because he has not accumulated FSA time credits equal to the remainder of his imposed term of imprisonment.
Respondent argues the Court should deny Petitioner's request for habeas corpus relief because Petitioner it not entitled to the relief he requests in his petition. Doc. 19, at 8-10. The undersigned agrees.
Petitioner argues he has earned one year of FSA credits, but the BOP is improperly denying his request to “award” him those credits:
The BOP has not awarded me any of my time credits - reducing my sentence by one year, effectively - as mandated by the First Step Act. The date that the FSA requires for all prisoners to receive their FSA time credits has passed. I am eligible and have earned over 1 yr. of credit but BOP policy prevents me from receiving them.Doc. 1, at 6. The parties do not dispute that Petitioner is eligible to earn, and has earned, some time credits under the FSA. See Doc. 19, Ex. 1, at 7, 9; see also 18 U.S.C. § 3632(d)(4) (outlining eligibility requirements for earning credits). Although eligible, Petitioner has not met the requirements for application of his FSA credits to his sentence.
In his response to the motion to dismiss, Petitioner asserts the BOP should have already credited his sentence with his earned FSA credits in compliance with “the [FSA's] mandate.” Doc. 20, at 5-6. He states his request is now cognizable because he is only asking the BOP to “credit” his sentence with his FSA credits, not “apply” them. Id. at 5. Petitioner's argument is unavailing under the FSA's terms.
As Respondent points out, the BOP has documented in Petitioner's record his projected release date, which accounts for his good conduct time. Doc. 19, at 9 & Ex. 1, at 7-9. And during his term of imprisonment, Petitioner may both earn and lose FSA time credits depending upon his participation in eligible programs or activities. See 28 C.F.R. §§ 523.42, 523.43(a). He may also have lost credits restored if he has “clear conduct . . . for two consecutive risk and needs assessments conducted by the [BOP].” Id. § 523.43(c).
A prisoner must meet several eligibility requirements before the BOP may apply FSA time credits towards a prisoner's sentence. See 18 U.S.C. § 3624(g)(1); 28 C.F.R. § 523.44(b). First, a prisoner must have earned credits “in an amount that is equal to the remainder of the prisoner's imposed term of imprisonment.” 18 U.S.C. § 3624(g)(1)(A); 28 C.F.R. § 523.44(b)(1). Second, the prisoner must have “shown through the periodic risk reassessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment.” Id. § 3624(g)(1)(B); see also 28 C.F.R. § 523.44(b)(2). Third, the prisoner “has had the remainder of the prisoner's imposed term of imprisonment computed under applicable law.” Id. § 3624(g)(1)(C); see also 28 C.F.R. § 523.44(b)(3). And fourth, if the BOP places a prisoner in prerelease custody or in supervised release, it must have determined the prisoner is at a minimum or low risk to recidivate. Id. § 3624(g)(1)(D); see also 28 C.F.R. § 523.44(c).
Respondent asserts Petitioner is not yet eligible for application of his FSA time credits because he has not accumulated credits equal to the remainder of his prison term. Doc. 19, at 9 (citing Ex. 1, at 7). Petitioner does not dispute this assertion and has admitted he has earned only one year of FSA credits. Doc. 1, at 6. He therefore fails to show that he is currently eligible for the application of credits to his sentence under the FSA. The undersigned recommends the Court deny Petitioner's request for habeas corpus relief.
Petitioner asserts he is closer to his release date than 2041 because he has a “Section 2255 motion” pending in the Eastern District of California. Doc. 20, at 5-6. He states he is hopeful it will be resolved in his favor within the next “6-12 months.” Id. But that case is not before this Court, and it does not affect the Court's resolution of Petitioner's § 2241 petition.
V. Recommendation and notice of right to object.
For these reasons, the undersigned recommends that the Court deny Petitioner's § 2241 habeas petition.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before October 11, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises Petitioner that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the 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 issues referred to the undersigned in the captioned matter.