Opinion
C. A. 4:23-1402-BHH-TER
04-18-2023
Jose Maria Portillo, #60573-097, Petitioner, v. Warden Janson, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. Petitioner is an inmate at FCI Edgefield, serving time from sentences out of the District Court of the Eastern District of California. The Petition is subject to dismissal because Petitioner has not exhausted his administrative remedies with the Bureau of Prisons (BOP) and exhaustion is not futile.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition should be summarily dismissed due to Petitioner not having exhausted his administrative remedies.
The Rules Governing Section 2254 Cases are also applicable to Section 2241 cases. See Rule 1(b) of Rules Governing Section 2254 Cases.
DISCUSSION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, contesting “how [his] sentence is being carried out, calculated, or credited by prison or parole authorities (for example, revocation or calculation of good time credits).” (ECF No. 1 at 2). Petitioner answered “no” to all of the Petition's questions regarding seeking administrative remedies at all three required steps. (ECF No. 1 at 2-4). Petitioner alleges he is not filing any administrative grievances or going through the exhaustion process because he asserts exhaustion is futile. (ECF No. 1-1 at 2). Petitioner asserts he has a detainer and that if he is released, he will be released into ICE custody and deported. (ECF No. 1-1 at 2, 3). Petitioner argues the detainer prevents the application of his earned time credits under the First Step Act, which would move his release date forward. Petitioner asserts filing administrative remedies is futile because there is a BOP policy governing the disputed issue. (ECF No. 1-1 at 4).
The statute and regulation applicable here state that the BOP may not apply the FSA earned time credits of prisoners who are subject to “final orders of removal.” 28 C.F.R. § 523.44(a)(2)(“Subject to a final order of removal under immigration laws as defined in 8 U.S.C. § 1101(a)(17)(see 18 U.S.C. § 3632(d)(4)(E)), the Bureau may not apply FSA Time Credits toward prerelease custody or early transfer to supervised release.”); 18 U.S.C. § 3632(d)(4)(E)(i) (prisoner who “is the subject of a final order of removal” cannot apply any FSA time credits toward prerelease custody or early transfer to supervised release).
The BOP program statement at issue is Program Statement 5410.01, which was first released in November 2022. While inmates with “detainers may earn FTCs, if otherwise eligible, they will be unable to apply them to prerelease custody or release to supervision unless the” “detainers are resolved.” BOP Program Statement 5410.01 (Nov. 2022). Petitioner relies on this program statement to argue that filing an administrative grievance would be futile for him. However, on March 10, 2023, the BOP issued a Change Notice to this Program Statement. This Change Notice entirely struck/deleted the above quoted language from the November 2022 BOP Program Statement 5410.01.
Accessible at https://www.bop.gov/mobile/policy/ (limited by search parameters).
Several courts have recently dealt with this specific issue. One court found a petitioner's case was moot because the language struck from the Program Statement reflected a broad policy change. Alatorre v. Derr, 2023 WL 2599546, at *1, 5 (D. Haw. Mar. 22, 2023) (“As a result of Change Notice 5410.01, federal prisoners subject to immigration detainers are no longer automatically prohibited from applying their earned time credits.”). “The consequences of the alterations made by Change Notice 5410.01 are unmistakable: an immigration detainer, without more, no longer precludes a federal prisoner from applying earned time credits.” Id. In Garrido v. Warden, FCI-Mendota, 2023 WL 2587894, at *5 (E.D. Cal. Mar. 21, 2023)(finding no case or controversy due to Change Notice), the petitioner there also argued exhaustion was futile based on the policy and that court found exhaustion was not futile because the BOP had altered its position. Id. Thus, exhaustion is not futile based on cases which have reviewed the new Change Notice to the applicable BOP Program Statement.
Petitioner's Petition is subject to summary dismissal for failure to exhaust his administrative remedies. In order for this court to consider a habeas action under § 2241, Petitioner is required to have fully exhausted his administrative remedies. See Timms v. Johns, 627 F.3d 525, 530-32 (4th Cir. 2010); see also Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)(mandatory exhaustion unlike § 1983 actions). The BOP administrative appeal process is three-tiered. See 28 C.F.R. § 542.10. The administrative process is exhausted when the General Counsel issues a ruling on the inmate's final appeal. 28 C.F.R. § 542.15(a). An inmate may first seek to informally resolve the complaint at the institution level. 28 C.F.R. § 542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint (Administrative Remedy Request - on a BP -9 form) to the Warden. 28 C.F.R. § 542.14. The matter will be investigated, and a written response provided to the inmate. Id. If dissatisfied with the response, within 20 days of the response, the inmate may appeal (on a BP-10 form) to the Regional Director. 28 C.F.R. § 542.15(a). If dissatisfied with the regional response, within 30 days of the response, the inmate may appeal (on a BP-11 form) to the General Counsel. Id. Appeal to the General Counsel (Central Office) is the final level of agency review. 28 C.F.R. § 542.15(a). A claim has not been administratively exhausted until it has been filed with the General Counsel. “Where a petition for writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241, the exhaustion of administrative remedies is jurisdictional.” Hicks v. Jordan, 165 Fed.Appx. 797, 798 (11th Cir. 2006); see Timms, 627 F.3d at 533. Petitioner stated outright his refusal to engage in the administrative remedy process, that he had not filed any step. (ECF No. 1).
The BOP should be afforded the opportunity to correct any alleged errors, to develop its factual record, and apply its expertise to the situation. See Moscato v. Fed. B.O.P., 98 F.3d 757, 761 (3d Cir.1996), cited with approval by Watkins v. Compton, 126 Fed.Appx. 621 (4th Cir. 2005) (unpublished). Petitioner must exhaust his administrative remedies with BOP before his § 2241 Petition becomes ripe for review.
Thus, the Petition is subject to summary dismissal due to a failure to exhaust.
RECOMMENDATION
Accordingly, it is recommended that the Petition in this case be dismissed without prejudice and without requiring the respondent to file a return.
IT IS SO ORDERED.
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).