Opinion
Civil Action 3:23-cv-274- HTW-LGI
04-30-2024
CLARENCE MARTIN, 11858-002 PETITIONER v. C. HARRISON, WARDEN, YAZOO CITY LOW RESPONDENT
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
LAKEYSHA GREER ISAAC UNITED STATES MAGISTRATE JUDGE
Clarence Martin files this 28 U.S.C. § 2241 petition seeking judicial review of his sentence computation by the Federal Bureau of Prisons (“BOP”). Martin, currently serving 144 months for 2007 and 2016 convictions for possession of methamphetamine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), challenges BOP's refusal to grant him a one-year sentence reduction for completing its Residential Drug Abuse Program (“RDAP”). 18 U.S.C. § 3621(e)(2)(B). Respondent asserts the petition should be dismissed for failure to exhaust administrative remedies, or alternatively on the merits. Having considered the parties' submissions and the applicable law, the undersigned recommends that the petition be dismissed for failure to exhaust administrative remedies.
As an incentive, section 3621(e)(2)(B) provides that certain federal prisoners convicted of nonviolent offenses who remain in custody after completing treatment in a RDAP may receive a reduction in their sentences of up to one year. 18 U.S.C. § 3621(e)(2)(B) (“The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve”). The program consists of several phases including a unit-based component, which occurs in the correctional facility, and a transitional component that typically occurs in a halfway house post-release. In analyzing the statutory language of § 3621(e)(2)(B), the United States Supreme Court has made clear, that “[w]hen an eligible prisoner successfully completes drug treatment, the Bureau has the authority, but not the duty, both to alter the prisoner's conditions of confinement and to reduce his term of imprisonment.” Lopez v. Davis, 531 U.S. 230, 241, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). The BOP has considerable discretion to determine which prisoners may participate in the treatment programs and which prisoners are eligible for sentence reductions. Venegas v. Henman, 126 F.3d 760, 762 (5th Cir. 1997).
Relevant here, Martin has twice been convicted of possession with intent to distribute-first in 2007 and then again in 2016 while on supervised released on the 2007 conviction. Although permitted to participate in the RDAP, records show that Martin was advised that his eligibility for early release was subject to legal review by BOP's Designation and Sentence Computation Center (“DSCC”). Upon reviewing Martin's convictions, DSCC staff determined that he was not eligible for RDAP's one-year sentence reduction because his 2007 conviction included a sentence enhancement for possession of a firearm at the time of the offense.
Federal regulations categorically exclude from early-release consideration inmates whose felony offense involves “the carrying, possession, or use of a firearm or other dangerous weapon.” 28 C.F.R. § 550.55(b)(5)(ii). It also excludes those whose offense “by its nature or conduct, presents a serious potential risk of physical force against the person or property of another.” 28 C.F.R. § 550.55(b)(5)(iii). BOP Policy, as outlined in Program Statement No. 5162.05, further excludes prisoners with weapon-possession enhancements under the sentencing guidelines from eligibility. See U.S. Sentencing Guideline Manual § 2D1.1(b)(1) (U.S. Sentencing Comm'n 2014) (“If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.”). See also Warren v. Miles, 230 F.3d 688, 693 (5th Cir. 2000) (“section 3621(e)(2)(B) grants the BOP broad discretion to exclude from early release consideration prisoners serving sentences . . . that were enhanced for possession of a dangerous weapon”). Moreover, the Fifth Circuit has long held that this policy is “consistent with the letter and spirit of the Bureau's authority as derived from section 3621(e).” Venegas, 126 F.3d at 765. Relying on these authorities, the DSCC determined that Martin was ineligible for early release under § 3621(e)(2)(B).
Aggrieved, Martin filed the instant petition. Respondent argues Martin's petition should be dismissed for failure to exhaust administrative remedies. Martin does not dispute his failure to exhaust but asserts exhaustion at this stage would be futile and cause further delay.
Discussion
An inmate challenging the computation and execution of his sentence must complete all steps in the administrative remedies process before filing a 28 U.S.C. § 2241 habeas petition. Woodford v. Ngo, 548 U.S. 81, 89-92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Qattoum v. Gillis, No. 5:18-CV-137-DCB-MTP, 2020 WL 2841784, at *3 (S.D.Miss. June 1, 2020) (petitioner must exhaust his FSA claim for Earned Time Credit with the BOP before filing federal habeas petition). See also Taylor v. Warden, FCI Beaumont, No. 1:20-CV-492, 2021 WL 3924082, at *2 (E.D. Tex. July 28, 2021), report and recommendation adopted, No. 1:20-CV-492, 2021 WL 3912744 (E.D. Tex. Sept. 1, 2021) (same). Petitioners must pursue the “grievance remedy to conclusion.” Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001); Porter v. Peterson, 747 Fed.Appx. 247, 248 (5th Cir. 2019). But when “the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action,” petitioners need not exhaust administrative remedies. Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012) (quoting Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994)). “Exceptions to the exhaustion requirement apply only in ‘extraordinary circumstances,'” i.e., where the administrative remedies are rendered unavailable, and the “[petitioner] bears the burden of demonstrating the futility of administrative review.” Schipke v. Van Buren, 239 Fed.Appx. 85, 86 (5th Cir. 2007) (quoting Fuller, 11 F.3d at 62). If an inmate shows an applicable exception to the exhaustion requirement, the inmate may obtain a ruling on the merits despite a lack of exhaustion.
The BOP establishes a four-step administrative remedies process for inmates seeking formal review of issues relating to their confinement. 28 C.F.R. §§ 542.10-542.19. An inmate must first file a BP-8 form requesting informal resolution. If this is unsuccessful, the inmate must submit a formal written Administrative Remedy Request directly to the Warden through a BP-9 form within 20 days after the basis for the grievance occurred. Within 20 days of the Warden's response, the inmate may appeal to the Regional Director by filing a BP-10 form. If not satisfied with the Regional Director's response, the inmate may appeal by submitting a BP-11 form to the General Counsel within 30 days. Upon completing this multiple-tiered review process, the inmate has exhausted his administrative remedies.
As evidence of the failure to exhaust, Respondent submits Martin's administrative history and an affidavit from Michael FiggsGanter, Attorney Advisor at FCC Yazoo with access to and knowledge of “SENTRY”- a computer records system that tracks an inmate's use of the BOP's administrative remedies program. The search revealed that of the ten administrative remedies Martin has filed, only one relates to his early release eligibility under RDAP. While records show that Martin completed the initial steps of the administrative-remedy program, he did not perfect the appeal to the Regional Office or Office of General Counsel level.
The law is clear. An inmate must complete all steps in the administrative process, including complying with administrative deadlines and other procedural rules before exhaustion is proper. Woodford, 548 U.S. at 89-92. It is not enough to merely initiate the grievance process. Petitioners must pursue the “grievance remedy to conclusion.” Wright, 260 F.3d at 358; Porter, 747 Fed.Appx. at 248. Likewise, Martin cannot bypass exhaustion because he fears it would be futile or cause delay. Rather, he must show that administrative remedies were rendered unavailable to him, or that extraordinary circumstances warrant an exception to the exhaustion requirement. See Fuller, 11 F.3d at 62. He has not made this showing here.
For these reasons, the undersigned recommends that Martin's petition be dismissed for failure to exhaust administrative remedies.
NOTICE OF RIGHT TO APPEAL/OBJECT
Under Rule 72(a)(3) of the Local Uniform Civil Rules of the United States District Courts for the Northern District of Mississippi and the Southern District of Mississippi, any party may serve and file written objections within 14 days after being served with a copy of this Report and Recommendation. Within 7 days of the service of the objection, the opposing party must either serve and file a response or notify the District Judge that he or she does not intend to respond to the objection.
The parties are notified that failure to file timely written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation, will bar that party from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, except upon grounds of plain error. 28 U.S.C. § 636, Fed.R.Civ.P. 72(b) (as amended, effective December 1, 2009); Douglass v. UnitedServs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).