Opinion
23-CV-11329 (RA)
08-02-2024
LUIS FERNANDO MURILLO-CABEZAS, Petitioner, v. F.C.I. OTISVILLE WARDEN, Respondent.
MEMORANDUM OPINION & ORDER
Hon. Ronnie Abrams, United States District Judge
Petitioner Luis Fernando Murillo-Cabezas, previously incarcerated in the federal correctional facility in Otisville, New York and currently incarcerated at FCI Fort Dix in New Jersey, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. For the reasons that follow, his petition is denied.
BACKGROUND
On March 1, 2017, Murillo-Cabezas was sentenced in the United States District Court for the Southern District of Florida to a 120-month term of imprisonment and five-year term of supervised release for conspiracy to possess with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70506(b) and 21 U.S.C. § 960(b)(1)(B). See Dkt. No. 10 (“Lewis Decl.”) ¶ 4. His projected release date is April 11, 2025. Id. ¶ 17.
Murillo-Cabezas alleges that the Bureau of Prisons (“BOP”) has refused to apply time credits he has earned under the First Step Act (“FSA”) toward his prerelease custody or supervised release, as provided under 18 U.S.C. § 3632(d)(4)(C). See Dkt. No. 1 (“Pet.”). He asserts that “he has earned over 1 years' worth” of FSA time credits, which entitles him to immediate release from custody. Id. at 2.
In response, the Government first argues that the Court does not have jurisdiction over this habeas petition and seeks transfer of the petition to the District of New Jersey. See Dkt. No. 9 (“Gov't Br.”) at 8-9. It also contends that Murillo-Cabezas failed to exhaust administrative remedies, and that he is otherwise ineligible to apply FSA time credits toward prerelease custody or supervised release because he is the subject of a final order of removal, as defined by the Immigration and Nationality Act. See Gov't Br. at 12-14; Lewis Decl. ¶¶ 8-9; 18 U.S.C. § 3632(d)(4)(E)(i).
LEGAL STANDARD
Petitioners may use 28 U.S.C. § 2241 to challenge the execution of their sentence, including the “computation of a prisoner's sentence by prison officials.” Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006). The petitioner “bears the burden of proving that he is being held contrary to law; and because the habeas proceeding is civil in nature, the petitioner must satisfy his burden of proof by a preponderance of the evidence.” Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011).
Unless otherwise indicated, case quotations omit all internal citations, quotations, footnotes, omissions, and alterations.
“A petitioner must exhaust administrative remedies as a prerequisite to habeas corpus relief under § 2241.” Harriot v. Jamison, 2024 WL 2981150, at *2 (S.D.N.Y. June 13, 2024). “Failure to exhaust administrative remedies results in a procedural default, which bars judicial review unless the petitioner persuades the Court that the failure to exhaust should be excused.” Rosenthal v. Killian, 667 F.Supp.2d 364, 366 (S.D.N.Y. 2009). Courts may, though, excuse the failure to exhaust where “(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a petitioner has raised a substantial constitutional question.” Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003). “The exhaustion requirement for § 2241 petitions is prudential, not statutory ... [so] failure to exhaust may be excused at the court's discretion.” Delano F. v. Sini, 2023 WL 7304824, at *4 (S.D.N.Y. May 18, 2023).
Courts must liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions “to raise the strongest claims [they] suggest[].” Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 489 (2d Cir. 2018).
DISCUSSION
As an initial matter, this Court has jurisdiction over this matter because Murillo-Cabezas was incarcerated in the Southern District of New York at the time he filed his petition. The Government argues that the petition was not filed until December 27, 2023, when Murillo-Cabezas was incarcerated at FCI Lewisburg in Pennsylvania. See Gov't Br. at 1. But the law is “well settled that a pro se prisoner's petition for habeas corpus is deemed filed on the day he or she delivers the petition to prison authorities for transmittal to the court.” Allen v. LaClair, 2009 WL 7029066, at *4 n.4 (S.D.N.Y. Nov. 13, 2009). Murillo-Cabezas was still incarcerated at FCI Otisville, located in the Southern District of New York, on the date the petition was dated, October 13, 2023. See Lewis Decl. ¶ 5. Moreover, a copy of the envelope that contained the petition makes clear that he mailed it to the Court from FCI Otisville on October 18, 2023, although it was not marked as received by the Court's Clerk's Office until December 27, 2023. See Pet. at 10. This Court thus retains habeas jurisdiction. See Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004) (“[W]hen the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction.”); Houston v. Lack, 487 U.S. 266, 276 (1988); Arevalo-Guasco v. Dubois, 788 Fed.Appx. 25, 26 n.1 (2d Cir. 2019).
The Government next contends that the petition should be dismissed because Murillo-Cabezas did not exhaust his administrative remedies, failing to take all the required administrative steps under the BOP's Administrative Remedy Program. See Gov't Br. at 10-11. Although his failure to exhaust his administrative remedies is undisputed, Murillo-Cabezas appears to argue that his failure should be excused, among other reasons, due to irreparable injury because he claims to be entitled to immediate release. Pet. at 2-3. Although courts have been divided on this issue, compare Harriot, 2024 WL 2981150, at *3, with Cohen v. United States, 2021 WL 1549917, at *3 (S.D.N.Y. Apr. 20, 2021), this Court assumes, without deciding, that “irreparable injury may occur without immediate judicial relief” in this case, Beharry, 329 F.3d at 62.
In any event, Murillo-Cabezas's petition must fail. As the Government rightly argues, Murillo-Cabezas's immigration status makes him ineligible to apply FSA time credits toward prerelease custody or supervised release. 18 U.S.C. § 3632(d)(4)(E)(i) provides that “[a] prisoner is ineligible to apply [FSA] time credits ... if the prisoner is the subject of a final order of removal under any provision of the immigration laws.” Despite his arguments to the contrary, Murillo-Cabezas is subject to a final order of removal. On September 18, 2023, U.S. Immigration and Customs Enforcement issued a Notice and Order of Expedited Removal (“NOER”) regarding Murillo-Cabezas. See Lewis Decl., Ex. 3. The NOER states that “[b]ased upon . evidence presented during inspection or examination pursuant to section 235 of the
Act, and by the authority contained in section 235(b)(1) of the Act, [Murillo-Cabezas is] found to be inadmissible as charged and ordered removed from the United States.” Id. “The NOER, which was entered by an immigration officer and approved by a supervisor, is a final order of removal that prevents the BOP from applying FSA time credits ... as a matter of law.” Harriot, 2024 WL 2981150, at *4 (S.D.N.Y. June 13, 2024); see also Duyzings v. Warden, FCI Fort Dix, 2024 WL 1406647, at *3 (D.N.J. Apr. 2, 2024); Ceron v. Engleman, 2024 WL 967858, at *2 (C.D. Cal. Jan. 24, 2024). And, as the Supreme Court noted in Nasrallah v. Barr, “[i]n the deportation context, a ‘final order of removal' is a final order ‘concluding that the alien is deportable or ordering deportation.'” 590 U.S. 573, 581 (2020) (quoting 8 U.S.C. § 1101(a)(47)(A)); see 8 C.F.R. § 235.3(b)(2)(ii) (providing that when an alien is found inadmissible under § 235(b)(1), the alien has “[n]o entitlement to hearings and appeals”). Accordingly, Murillo-Cabezas is not entitled to FSA time credits.
To the extent Murillo-Cabezas seeks to argue that BOP's decision not to apply FSA time credits toward early release is a violation of his constitutional rights, this argument also fails. See Abed v. Armstrong, 209 F.3d 63, 67 (2d Cir. 2000) (finding that the denial of a chance to earn time credit does not infringe on prisoner's liberty interest); Cheng v. United States, No. 22-CV-10536 (VSB), 2024 WL 1309016, at *1 (S.D.N.Y. Mar. 26, 2024) (rejecting the argument that “the inability of aliens with final orders of removal from applying time credits . violates the Equal Protection and Due Process Clauses”); id. at *4 n.4 (noting that district courts “have similarly held that the exclusion of certain offenses from the FSA does not violate the Equal Protection Clause.”) (collecting cases); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-98 (8th Cir. 2002) (holding that “treating aliens differently based on the nature of the sentences they received does not violate equal protection”); Harriot, 2024 WL 2981150, at *5 (“[C]ourts have repeatedly held that a denial of the application of FSA time credits does not constitute cruel and unusual punishment”).
CONCLUSION
For the foregoing reasons, Murillo-Cabezas's petition pursuant to 28 U.S.C. § 2241 is denied. The Clerk of Court is respectfully directed to close this case.
SO ORDERED.