Opinion
C. A. 4:21-0299-TMC-TER
07-21-2021
JONATHAN VARGAS TORRES, Petitioner, v. STEVIE KNIGHT, WARDEN, Respondent.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.
The Petitioner, Jonathan Vargas Torres (“Petitioner”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on January 28, 2021. The Respondent filed a motion to dismiss or for summary judgment along with supporting memorandum and exhibits. (ECF No. 22). The undersigned issued an order filed June 3, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No. 23). On July 20, 2021, Petitioner filed a response to the motion. (ECF No. 27).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
STANDARD FOR SUMMARY JUDGMENT
As previously stated, the Respondent filed a motion to dismiss, or for summary judgment. As matters outside of the pleadings were submitted, the undersigned will treat this motion as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ANALYSIS
The Petitioner, an inmate in the custody of the Bureau of Prisons (“BOP”) and located at Federal Correctional Institution Estill (“FCI Estill”), filed this petition seeking habeas relief pursuant to 28 U.S.C. § 2241, asserting that the BOP is violating his federal constitutional rights by failing to “apply his earned time credits” under the First Step Act of 2018 (“FSA”) for his participation in “Evidence-Based Recidivism Reduction Programming” (“EBRR Programming”) (ECF No.1). The petitioner contends that he is entitled to 365 days of credit. (Id. at 9 of 10).
Respondent raises the affirmative defense of exhaustion. Specifically, Respondent argues that the motion for summary judgment should be granted for Petitioner's failure to exhaust administrative remedies before seeking federal court review.
In support of the motion, Respondent submitted the declaration of J. Carter (“Carter”), Legal Assistant for the South Carolina Consolidated Legal Center. (ECF No. 22-1). As a Legal Assistant, Carter has access to information regarding inmates in the custody of the Federal Bureau of Prisons (BOP). Id. Carter declares a review of SENTRY records shows that Petitioner filed Remedy ID No. 1063158-F1 on January 4, 2021, seeking earned time credit. Id. The Remedy was rejected the same day for not being dated. On January 11, 2021, Petitioner filed Remedy ID No. 1063158-F2 to seek earned time credit. Id. The remedy was closed on January 20, 2021, and a response provided for information/explanation purposes only (STATUS CODE: CLO/STATUS REASONS: XPL). Id. Petitioner did not appeal to the Regional or Central Office levels. He filed only one administrative remedy during his time in custody, which was a request for earned time credits under the First Step Act, filed at the institution level (Remedy ID No. 1063366-F1). Id. The remedy was closed on January 13, 2021, and a response provided for explanation/information purposes only (STATUS CODE: CLO/STATUS REASON: XPL). Petitioner did not further appeal to the Regional or Central Office levels. Id.
All formal administrative remedy requests are logged into the national SENTRY database and given a unique identifying number. Id. An extension is added to the number which denotes the level at which the claim is filed. Id. Subsequent appeals of an issue will have the same identification number with a different extension identifying the level where filed. Id. The extension “-F1” indicates the filing was at the institution or field level. The extension “-R1” indicates the filing was at the regional level. Id. The extension “-A1” indicates the filing was at the national level. Id. If an appeal is rejected and re-filed at the same level, perhaps correcting the identified deficiencies, then the number will change but the letter will remain the same; i.e., “-A2.” Id.
The execution of sentences and the computation of jail time is an administrative function under the authority of the Attorney General. The Attorney General has delegated this task to the BOP, including the responsibility for computing time credits and determining a sentence termination date once a defendant actually commences serving his sentence. See United States v. Wilson, 503 U.S. 329, 334-35 (1992). Therefore, the BOP must make the initial determination to award sentence credit for time spent in official detention. See Vazquez v. Knight, 2021 WL 1625002, at *2 (D.S.C. Apr. 27, 2021) citing U.S. v. Jeter, 161 F.3d 4, at *1 (4th Cir. 1998) (unpublished table decision).The requirement to exhaust administrative remedies is not waivable. Jeter, 161 F.3d 4, at *2.
The BOP's Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The BOP has a three-tiered formal administrative grievance process in addition to an informal resolution process. 28 C.F.R. §§ 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. See id.; 28 C.F.R. §542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint to the warden within 20 calendar days after the date upon which the basis for the request occurred. See id.; 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, the inmate may appeal to the Regional Director within 20 days of the date of the Warden's response. See id.; 28C.F.R. §542.15(a). If dissatisfied with the regional response, the inmate may appeal to the General Counsel within 30 days of the Regional Director's response. Id. Appeal to the General Counsel is the final level of agency review. See id.; 28C.F.R. §542.15(a). Thus, a claim has not been administratively exhausted until it has been properly filed with the General Counsel. (ECF No. 30-1 at 6 of 15). If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. See id.; 28 C.F.R. § 542.18. Inmates may not appeal issues that were not raised in previous lower level filings or combine appeals of separate lower level responses (different remedy numbers) into a single appeal. See id.; 28 C.F.R. §542.15(b)(2). Thus, each administrative remedy appeal must address the same issues addressed at the lower level in this remedy. See id.; 28 C.F.R. § 542.15(b)(2).
“Unlike petitions brought under 28 U.S.C. § 2254, which challenge the validity of a state court conviction and sentence, petitions brought under § 2241 generally challenge the execution or implementation of a sentence, such as parole matters, sentence computation, calculation of good-time credits, prison disciplinary actions, and transfers.” Clemmons v. South Carolina, No. 0:08-607-RBH, 2008 WL 2845636, *1 (D.S.C. July 18, 2008). Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in 28 U.S.C. § 2241 matter); Timms v. Johns, 627 F.3d 525 (4th Cir. 2010) (noting courts require “exhaustion of alternative remedies before a prisoner can seek federal habeas relief.”) (internal quotation marks omitted). Exhaustion allows prison officials to develop a factual record and “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007).
In his petition, Petitioner checks that he did not file an Administrative Remedy Appeal or a “final administrative appeal” arguing futility. (ECF No. 1 at 6 of 10). Therefore, Petitioner did not dispute that he failed to exhaust his administrative remedies but argued that exhaustion would be futile due to “a narrow dispute of statutory construction which is exempt from the exhaustion process.” (Id.). In Petitioner's response, he again asserts that exhaustion is futile. (ECF No. 27). Petitioner's argument is without merit as he fails to identify any issue of statutory construction and requests that the court order the BOP to grant him 365 days of additional credit time for his completion of EBRR programs. (ECF No. 1 at 6 of 10). However, it is clear in the law that Petitioner was required to exhaust his administrative remedies prior to filing a federal § 2241 petition. Warren v. United States, No. 10-1245, 2011 WL 4435671 at * 2 (D.S.C. June 29, 2011), adopted by, 2011 WL 4435655 (D.S.C. Sept. 23, 2011) (“It is well settled that a federal prisoner is required to exhaust his administrative remedies with BOP before filing an action pursuant to § 2241.”)(quoting Henderson v. Warden, Edgefield Satellite Prison Camp, 2009 WL 3317149 at * 2 (D.S.C. Oct. 14, 2009)) (citing Pelissero v. Thompson, 170 F.3d 442, 445 (4th Cir. 1999)). Additionally, the “BOP should be afforded the opportunity to correct any alleged errors, to develop its factual record, and apply its expertise to the situation.” Mero v. Phelps, C/A No. 4:20-cv-03615-MGL-TER, 2020 WL 7774378, at *2 (D.S.C. Nov. 2, 2020), report and recommendation adopted by 2020 WL 7769784 (D.S.C. Dec. 30, 2020). Even if the court were to grant Petitioner's relief of having the BOP award him an additional 365 days of credit, it would not lead to his immediate release as he is currently serving a 130-month term of incarceration with a projected release date (without the 365 days of credit but with Good Conduct Time) of June 2, 2024. (ECF No. 22 at 2). Petitioner therefore has not shown that exhaustion of his administrative remedies would be futile. Petitioner can only assert the claim in this Court after he has exhausted his administrative remedies. See 28 C.F.R. §§ 542.10 through 542.16. Accordingly, it is recommended that Respondent's motion for summary judgment be granted for failure to exhaust.
Even if Petitioner had exhausted his administrative remedies, the case would nevertheless be subject to dismissal as it is premature. See Toussaint v. Knight, C/A No. 6:21-cv-764-HMH-KFM, 2021 WL 2635887, at *4 (D.S.C. June 4, 2021), report and recommendation adopted Toussaint v. Knight, No. CV 6:21-764-HMH, 2021 WL 2635479 (D.S.C. June 25, 2021)(collecting cases). See also Wright v. Warden of Edgefield FCI, No. 8:21-CV-0388-JD-JDA, 2021 WL 2270011, at *4 (D.S.C. Mar. 31, 2021), report and recommendation adopted, No. 8:21-CV-0388-JD, 2021 WL 2269960 (D.S.C. June 2, 2021) in which the court noted that “Even if Plaintiff had exhausted his administrative remedies, this case would be subject to dismissal on an additional basis. Numerous courts have dismissed petitions like the present one as premature because § 3621(h)(4) of the FSA provides a two-year deadline to implement the program at issue, and that deadline has not yet expired. As such, the BOP is under no obligation to act before the deadline has passed in January 2022. See, e.g., Kennedy-Robey v. FCI Pekin, No. 20-cv-1371, 2021 WL 797516, at *4 (C.D. Ill. Mar. 2, 2021); Hand v. Barr, No. 1:20-cv-00348-SAB-HC, 2021 WL 392445, at *5 (E.D. Cal. Feb. 4, 2021); Llewlyn v. Johns, No. 5:20-cv-77, 2021 WL 535863, at *2 (S.D. Ga. Jan. 5, 2021), Report and Recommendation adopted by 2021 WL 307289 (S.D. Ga. Jan. 29, 2021); Llufrio v. Johns, No. 5:15-cv-122, 2020 WL 5248556, at *2 (S.D. Ga. Aug. 13, 2020), Report and Recommendation adopted by 2020 WL 5245133 (S.D. Ga. Sept. 2, 2020); James v. Johns, No. 5:19-cv-117, 2020 WL 5047158, at *2 (S.D. Ga. Aug. 4, 2020); Bowling v. Hudgins, No. 5:19-cv-285, 2020 WL 1918248, at *4 (N.D. W.Va. Mar. 16, 2020), Report and Recommendation adopted by 2020 WL 1917490 (N.D. W.Va. Apr. 20, 2020).”
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 22) be GRANTED and this claim dismissed. Further, it is RECOMMENDED that any outstanding motions be deemed moot.