Thompson v. Van Buren

Full title: MONIQUE THOMPSON, PETITIONER, v. GINNY VAN BUREN, WARDEN, FMC-CARSWELL…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Nov 23, 2004

Civil Action No. 4:04-CV-0554-Y (N.D. Tex. Nov. 23, 2004)

Opinion

Civil Action No. 4:04-CV-0554-Y.

November 23, 2004

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendations of the United States Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.

B. PARTIES

Petitioner Monique Thompson, Reg. No. 44424-008, is a federal prisoner currently confined in the Federal Medical Center-Carswell (FMC-Carswell) in Fort Worth, Texas.

Respondent Ginny Van Buren is Warden of FMC-Carswell.

C. PROCEDURAL HISTORY

Thompson is serving a 78-month term of incarceration for armed bank robbery and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. §§ 2113(A)(D) and 924(C)(1). (Resp't Appx. A at 1.) Her projected supervised release date is June 9, 2005. ( Id.) On July 21, 2004, Thompson filed this petition for writ of habeas corpus in the United States District Court, Northern District of Texas, Fort Worth Division. On September 23, 2004, Van Buren filed a motion to dismiss with supporting brief and documentary exhibits, to which Thompson has filed a response.

D. ISSUE

In one ground, Thompson challenges the Bureau of Prison's calculation of good time credit under 18 U.S.C. § 3624(b).

E. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Van Buren asserts inter alia that the petition should be dismissed because Thompson has failed to exhaust her administrative remedies. (Resp's Brief in Support at 4-7.) Federal prisoners must exhaust administrative remedies before seeking habeas relief in federal court under 28 U.S.C. § 2241. Fuller v. Rich, 11 F.3d 61, 62 (5^th Cir. 1994). Exceptions to the exhaustion requirement apply only in "extraordinary circumstances" when administrative remedies 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. Id. The purpose of exhaustion is to permit the federal agency being challenged to correct its own error without court intervention. See Smith v. Thompson, 937 F.2d 217, 219 (5^th Cir. 1991).

Thompson admits that she did not pursue her administrative remedies and argues that she should not be required to do so because it is clear that the claim would be rejected by the Bureau given its written policy on the issue. (Petition at 4.) Where, as here, the Bureau has adopted a policy and instructed its staff in the form of Program Statement 5880.28 regarding computation of good time credit under § 3624(b), presentation of Thompson's claim via the Bureau's administrative process would, in fact, be futile. See Tasby v. Pratt, No. 4:01-CV-959-A, 2002 WL 1160071, at *3 (N.D. Tex. May 29, 2002); Stewart v. Tombone, No. 3:97-CV-0129-BC, 1998 WL 158657, at *2 (N.D. Tex. Mar. 24, 1998). Adherence to the exhaustion requirement in this case would serve no purpose other than delay. Thus, the court will address Thompson's claim on the merits.

F. DISCUSSION

Thompson contends the Bureau of Prisons is calculating her good time credits in a manner that conflicts with 18 U.S.C. § 3624(b). The statutory provision provides, in relevant part:

(1) Subject to paragraph (2), a prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. Subject to paragraph (2), if the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit toward service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines to be appropriate. . . . Subject to paragraph (2), credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

According to Thompson, under the Bureau's "formula" for calculating good time under § 3624(b), a prisoner receives only 47 days good time credit per year, instead of 54 days the prisoner is entitled to under the statute. The statute itself, however, makes clear that it is the Bureau that determines whether a federal prisoner should receive good time credit. See United States v. Evans, 1 F.3d 654, 654 (7^th Cir. 1993). Further, the Fifth Circuit has considered and rejected the same or similar claim in Pacheco-Camacho v. Hood, 272 F.3d 1266, 1270 (9^th Cir. 2001), cert. denied, 535 U.S. 1105 (2002). Therefore, Thompson's challenge to the method of the Bureau's calculation of good time credit is without merit.

II. RECOMMENDATION

It is recommended that the government's motion to dismiss be granted to the extent that Thompson's petition is denied.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until December 14, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 14, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.