Opinion
CIV-23-486-G
10-26-2023
PHUONG HOAI CAO, Petitioner, v. WARDEN, FTC Oklahoma, Respondent.
REPORT AND RECOMMENDATION
Suzanne Mitchell, United States Magistrate Judge
Petitioner, a federal prisoner appearing pro se, filed an Emergency Motion for Habeas Corpus Per 28 U.S.C. § 2241, which the undersigned construes as a petition for habeas corpus relief. Doc. 1.United States District Judge Charles B. Goodwin referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Petitioner contends the Bureau of Prisons (BOP) wrongfully deemed him ineligible for earned time credits under the First Step Act (FSA) and that he would be eligible for immediate release if he had received those credits. Doc. 1, at 1. Respondent filed a response, asserting that Petitioner's claim should be dismissed for failing to exhaust his administrative remedies or, in the alternative, on the merits. Doc. 10. Petitioner replied, asserting he should not be required to exhaust his administrative remedies because, at the time of writing, he “ha[d] not yet received any resolution to his BP-10 [form]” and “[w]ithout the [BOP's] response to his BP-10, Petitioner can not appeal to BOP's General Counsel and he is less than ten weeks to release without the FSA credit.” Doc. 11, at 3.
Citations to a court document are to its CM/ECF designation and pagination. Except for emphasis and capitalization, quotations are verbatim unless otherwise indicated.
The undersigned recommends the court dismiss the Petition without prejudice because Petitioner did not exhaust his administrative remedies before filing the Petition.
I. Petitioner's claims.
Petitioner pleaded guilty to possession with intent to distribute a controlled substance in United States District Court for the Southern District of Texas Case No. 4:15CR00177-005, and the court sentenced him to 120 months' imprisonment. Doc. 1, Att. 4, at 2, 4. Petitioner's projected release date is November 2, 2023, with credit for good conduct. Doc. 1, Att. 6, at 2.
Petitioner asserts the BOP wrongfully deemed him ineligible for earned time credits under the FSA. Doc. 1, at 1. The FSA allows an eligible prisoner to earn time credits by “successfully participat[ing] in recidivism reduction programs or productive activities” and to have those credits “applied toward time in prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). Even so, a prisoner is ineligible for such credits if he “is the subject of a final order of removal under any provision of the immigration laws (as such term is defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(17))).” Id. § 3632(d)(4)(E)(i). Petitioner contends he is a Vietnamese citizen “who is the subject of a detainer lodged with the BOP by United States Immigration and Custom Enforcement (ICE).” Doc. 1, at 3 (citing Doc. 1, Att. 7). He asserts that while the detainer makes him a deportable prisoner, it does not make him subject to a final order of removal. Id. at 6. Thus, he contends, he is eligible to earn FSA credits and is eligible for immediate release. Id. at 7-8. Petitioner also asserts the BOP wrongly denied Petitioner his FSA time credits in violation of the Equal Protection Clause and 42 U.S.C. § 1981. Id. at 8.
II. Petitioner's failure to exhaust his administrative remedies.
Respondent contends Petitioner can be denied habeas relief for failure to exhaust his administrative remedies before filing his petition. Doc. 10, at 9-11. The Court agrees.
A. Exhaustion requirement.
Exhaustion of available administrative remedies is a prerequisite to federal habeas corpus relief under 28 U.S.C. § 2241. 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.” Pinson v. Berkebile, 604 Fed.Appx. 649, 654 (10th Cir. 2015) (quoting Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981)).
If a prisoner contends the BOP miscalculated his or her sentence or release date, the BOP has the authority to correct that error in the first instance through its administrative remedy procedure. See 28 C.F.R. §§ 542.10-542.19; see also United States v. Wilson, 503 U.S. 329, 335 (1992) (“Federal regulations have afforded prisoners administrative review of the computation of their credits, and prisoners have been able to seek judicial review of these computations after exhausting their administrative remedies.”) (internal citations omitted).
The BOP procedure allows “an inmate to seek formal review of an issue relating to any aspect of his[] own confinement.” 28 C.F.R. § 542.10(a). Generally, a federal prisoner exhausts administrative remedies by trying to resolve the matter informally, then completing all three formal steps by filing an administrative remedy request with institution staff, and finally, completing regional and national appeals. Id. §§ 542.13-542.15. An inmate has twenty days to complete informal resolution and file a formal written administrative remedy request, and the warden must respond within twenty days. Id. §§ 542.14(a), 542.18. An inmate next has twenty days to appeal an unfavorable response to the appropriate regional director, and the regional director has thirty days to respond. Id. §§ 542.15(a), 542.18. An inmate then has thirty days to file a national appeal to the BOP Central Office, and the general counsel has forty days to respond. Id. §§ 542.15(a), 542.18. An inmate's deadline can be extended if he or she shows a valid reason for a delay. Id. §§ 542.14(b), 542.15(a). The warden, regional director, or general counsel can have their deadline extended once if the time period for response is insufficient to make an appropriate decision. Id. § 542.18.
B. Petitioner's use of administrative remedy procedures and premature filing of his habeas petition.
Petitioner submitted an Informal Resolution Attempt Form on March 29, 2023. Doc. 1, Att. 3, at 7. He asserted he was eligible for FSA credits and sought to have his file reviewed by the Designation and Sentence Computation Center (DSCC). Id. He asked for the BOP to either award his earned credits or give him a detailed analysis as to why he is ineligible to earn them. Id. On April 3, 2023, Petitioner received a response stating the prison had no control over his sentence computation in regard to his time credits and that Petitioner was “ineligible more than likely due to [his] ICE detainer and [his] being on parole.” Id.
On April 5, 2023, Petitioner submitted a Request for Administrative Remedy form, noting he “strongly disagree[d] with the response” to his informal remedy. Id. at 5. Petitioner cited authority suggesting prisoners who are subject to an ICE detainer are not ineligible to earn credits under the FSA. Id. at 5-6. The warden denied Petitioner's request on April 20, 2023, stating Petitioner was “recently teamed and it was determined that [he is] not eligible for FSA based on a detainer that [he has] with a final deportation order.” Id. at 4.
Petitioner submitted a Regional Administrative Remedy Appeal on April 25, 2023. Id. at 3. He contended he is “a deportable alien and not a subject to a final order of deportation.” Id. He again requested that the DSCC review his claim, correct his eligibility status, and credit him with FSA earned time credits. Id. Petitioner's appeal was received by the regional director on May 1, 2023, and the response was due on June 30, 2023. Id. at 2.
Before the regional director took action on Petitioner's appeal, Petitioner filed this action on June 1, 2023. Doc. 1. As explained infra § III., the Regional Director decided Petitioner's appeal on July 27, 2023. Doc. 10, Att. 1, at 5.
C. The undersigned recommends dismissal because Petitioner did not exhaust his administrative remedies before filing his habeas petition and the futility exception does not apply.
The timeline above establishes that Petitioner had not exhausted his administrative remedies when he filed his Petition. Although the administrative remedy process was later completed when the Regional Director issued a decision, “federal prisoners are required to exhaust administrative remedies before filing a petition under 28 U.S.C. § 2241.” Gonzalez-Morales v. Farley, No. CIV-19-9-SLP, 2019 WL 4237759, at *3 (W.D. Okla. Sept. 6, 2019) (quoting Cartwright v. Outlaw, 2007 WL 2317241, at *1 (E.D. Tex. Aug. 8, 2007)). “Circumventing the administrative exhaustion process by filing a habeas corpus application before exhausting undermines the system designed for effective and efficient administration of justice.” Marker v. Wilner, 2008 WL 4829848, at *2 (D. Colo. Nov. 5, 2008) (citing Woodford, 548 U.S. at 90-91). So “Petitioner's post-Petition completion of the administrative appeal process .... has no effect on the appropriate result of dismissing the Petition.” Gonzalez-Morales, 2019 WL 4237759, at *3 (citing Moneyham v. Ebbert, 2018 WL 6173044, at *4 (M.D. Pa. Nov. 26, 2018); see also Scarffol v. Bradley, 2019 WL 3194832, at *6 (N.D. Ala. May 21, 2019)).
But the Court's inquiry does not end there. “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 “quite 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)). Petitioner asserts he did not “continue to attempt[] to exhaust [a]dministrat[ive] remedies” because it “would be prejudicial and futile as Petitioner has served beyond his sentence and attempting to go through the process would waste a significant amount of time which is to the detriment of Petitioner's liberty interest.” Doc. 1, at 2. But Petitioner's perception that it would be a waste of time to continue through the administrative process does not mean administrative relief was effectively foreclosed.
Further, the fact that Petitioner's expected release date is nearing does not trigger the futility exception. See Cooley v. Grant, No. CIV-20-1152-HE, 2020 WL 7416929, at *2 (W.D. Okla. Nov. 30, 2020) (“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.”), adopted, 2020 WL 7410104 (W.D. Okla. Dec. 17, 2020). Thus, the futility exception does not apply.
The undersigned recommends the petition be dismissed for Petitioner's failure to exhaust his administrative remedies.
III. The BOP's discovery of a purported final order of removal and Petitioner's allegation of inauthenticity.
Petitioner filed his habeas petition on June 1, 2023, while his administrative appeal was still pending. Supra § II.B. Then, on July 27, 2023, the Regional Director granted Petitioner's appeal, stating:
The Bureau of Prisons verified there is no final order of deportation. After review of your case, it has been determined you are eligible under the First Step Act of 2018 and are eligible to earn Federal Time Credits (FTC). FTCs will automatically be calculated if you continue to meet all requirements. You will receive updates on the accrual of FTCs during your regularly scheduled program reviews with your unit team.Doc. 10, Att. 1, at 5.
After the appeal was granted, the Correctional Programs Administrator for the South Central Regional Office of the BOP learned that, contrary to the Regional Director's decision, Petitioner is subject to a final order of removal and “is not eligible to apply his FSA time credits.” Id. at 2. She explained that “a Unit Team staff member at FTC Oklahoma City [had] uploaded a DHS final order of removal” for Petitioner on July 26, 2023. Id. (citing id. at 18-20). Respondent also provided an Order of the Immigration Judge dated November 24, 1999, ordering that Petitioner be removed from the United States to Vietnam. Doc. 10, Att. 2, at 1.
Based on this recently uploaded document, Respondent asserts the Court may deny Petitioner's habeas petition on the merits because he is subject to a final order of removal. Doc. 10, at 8-9. In his reply, Petitioner argues one of the documents on which Respondent relies may not be authentic. Doc. 11, at 2-3. Petitioner asks the Court to “first, review and verify the authenticity, origin and the legality of Respondent's documents.” Id. at 4. Should the Court find Respondent's documents are “legal and have not been modified by anyone other than ICE official,” Petitioner asks the Court to allow him to withdraw his petition. Id.
The undersigned makes no finding as to the authenticity of the alleged 1999 final order of removal. See Blain v. Jenkins, No. CIV-21-824-PRW, 2023 WL 5163376, at *2 (W.D. Okla. Feb. 9, 2023) (declining to reach merits of plaintiff's civil rights claims and instead recommending dismissal based on failure to exhaust administrative remedies), adopted, 2023 WL 4542519 (W.D. Okla. July 14, 2023).
IV. 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 November 16, 2023, 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.