Opinion
1:22-CV-1198-RP-DH
07-14-2023
HUGO VILLALON, Plaintiff v. WARDEN FNU ROSALEZ, Defendant
TO: THE HONORABLE ROBERT PITMAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL, UNITED STATES MAGISTRATE JUDGE
Before the Court is Petitioner Hugo Villalon's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, Dkt. 1, and Respondent Warden FNU Rosalez's Response and Motion to Dismiss, Dkt. 7. The District Court referred Villalon's petition to the undersigned Magistrate Judge for Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1, Appendix C of the Local Rules of the U.S. District Court for the Western District of Texas.
I. BACKGROUND
Villalon is serving a 180-month term of imprisonment with three years of supervised release for his 2013 conviction in United States District Court for the Western District of Texas, Case No. 1:12-CR-130, for conspiracy to possess with intent to distribute more than 50 kilograms of marijuana and conspiracy to launder monetary instruments. Dkts. 1, at 10; 7-4, at 5. Villalon is currently imprisoned in Bastrop Federal Correctional Institution, located in Bastrop, Texas, and his statutory release date is January 21, 2026. Id.
Villalon alleges that the Bureau of Prisons (“BOP”) has not properly applied his credits earned under the First Step Act (“FSA”) to his sentence and evaluated him for pre-release custody in accordance with the Second Chance Act (“SCA”). Id. at 10. On October 7, 2022, the BOP calculated Villalon's earned time credits under the FSA and determined that he had 365 days of credits to be applied toward early supervised release and 325 days of credits to be applied toward residential reentry/home confinement. Id. at 16. With these credits applied, Villalon's projected release date is January 21, 2025, and his home detention eligibility date is July 21, 2024, as of October 10, 2022. Id. at 18-19.
Villalon states that his home detention eligibility date “likely reflects the 6 months of Home Confinement available under the [SCA] ... [h]owever it is unclear.” Id. at 11. Villalon states that his home detention eligibility date “does not account for all available [residential reentry/home confinement credits] and, if the 6 months of eligibility reflects Second Chance time, then zero days of [residential reentry/home confinement credits] have been applied to the [s]entence [c]omputation.” Id. As a result of this, “the date upon which the pre-release process must begin in order to meet the stated statutory goals of awarding [time credits] in addition to [SCA] prerelease custody of up to 12 months” is “obscure[d].” Id.
Villalon asks the Court to issue an order to BOP requiring it to (1) begin his pre-release process, including evaluating the practicability of awarding him 12 months of pre-release custody per the SCA; (2) state a “legally valid cause for any award of less than the 12 months” of pre-release custody; (3) establish the specific residential reentry location where Villalon will assigned for pre-release custody; and (4) specify a date upon which Villalon's pre-release custody will begin. Id. at 14.
Warden Rosalez moves to dismiss Villalon's petition on the grounds that BOP has evaluated Villalon for placement in a residential reentry center and recommended he be housed in a residential reentry center before his release, therefore, his petition is now moot. Dkt. 7, at 1. Warden Rosalez argues that any remaining claims or disputes “implicate discretionary decisions within the sole purview of BOP” and that this court lacks discretion over them. Id. Villalon moved for an extension of time to file a response to Warden Rosalez's motion which was granted, however, Villalon ultimately did not file a response. See Dkt. 8.
II. LEGAL STANDARD
A petitioner may seek habeas relief under 28 U.S.C. § 2241(c)(3) if he is “in custody in violation of the Constitution or laws or treaties of the United States.” A prisoner bringing a § 2241 petition is limited to attacking “the manner in which a sentence is carried out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
The Attorney General, through the BOP, is responsible for administering a district court's sentence. United States v. Wilson, 503 U.S. 329, 335 (1992). The BOP, not the district court, has the statutory authority to decide “where a federal sentence will be served, when it begins, and, in certain respects, how long it will last.” United States v. Aparicio, 963 F.3d 470, 478 (5th Cir. 2020) (citation omitted); see also United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992) (stating that “credit awards are to be made by the Attorney General, through the Bureau of Prisons, after sentencing”). Therefore, “[t]he BOP, not the district court, is empowered to calculate 18 U.S.C. § 3585(b) credits after the prisoner begins his sentence.” Aparicio, 963 F.3d at 478. Prisoners are afforded administrative review of their credit computation and may seek judicial review of the computation after exhausting administrative remedies with the BOP. Id.
A petitioner must exhaust his administrative remedies through the BOP before filing a § 2241 petition. Gallegos-Villalon v. United States, 688 F.3d 190, 194 (5th Cir. 2012). But failure to exhaust is not a jurisdictional requirement. See United States v. Franco, 973 F.3d 465, 468 (5th Cir. 2020). Exceptions to the exhaustion requirement may be made “where the available administrative remedies either 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.” Gallegos-Villalon, 688 F.3d at 194 (quoting Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994)). Exceptions may be made only in “extraordinary circumstances,” and the petitioner “bears the burden of demonstrating the futility of administrative review.” Fuller, 11 F.3d at 62.
III. ANALYSIS
A. The First Step Act
In December 2018, Congress passed the First Step Act. The FSA was implemented in phases. First, the Attorney General developed and released a “risk and needs assessment system.” 18 U.S.C § 3632(a). The Act then required the BOP to “implement and complete the initial intake risk and needs assessment for each prisoner.” 18 U.S.C. § 3621(h)(1)(A). The FSA required the BOP to “determine the recidivism risk of each prisoner as part of the intake process, and classify each prisoner as having minimum, low, medium, or high risk for recidivism.” 18 U.SC. § 3632(a)(1). The BOP was also required to determine the type and amount of Evidence-Based Recidivism Reduction programming and Programming Activities appropriate for each prisoner. Id. § 3632(a)(3). The FSA then gave the BOP two years after completing the risk and needs assessment for each prisoner to “phase in” program implementation. Id. § 3621(h)(2)(A). During the two-year phase-in period, the FSA allowed the BOP to begin offering incentives, including time credits towards prerelease custody or supervised release, to prisoners who participated in EBRR programming and PAs. Id. §§ 3621(h)(4), 3632(d)(4)(A). In January 2022, the BOP published its final rule implementing FSA time credit calculation procedures. 28 C.F.R. §§ 523, 541.
See Press Release No. 22-30, U.S. Dep't of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (Jan. 13, 2022), https://www.justice.gov/opa/pr/justice-department-announces-new-rule-implementing-federal-time-credits-program-established.
B. The Second Chance Act
The SCA amended 18 U.S.C. § 3624(c), which governs pre-release residential reentry center placements. See 18 U.S.C. § 3624(c); Walker v. Nash, No. A-16-CV-465-LY, 2016 WL 4386085, at *3 (W.D. Tex. Aug. 16, 2016). The SCA permits BOP to consider placing inmates nearing the end of their sentences in pre-release community confinement. 18 U.S.C. § 3624(c). This may include placement in a community correctional facility, like a residential reentry center, or in-home detention. Id. § 3624(c)(1), (2); C.F.R. § 570.20. The statute provides that placement in pre-release custody is “not to exceed 12 months.” 18 U.S.C. § 3624(c)(1).
Further, placement in in-home detention can be for only 10 percent of the inmate's term of imprisonment or 6 months, whichever is shorter. Id. § 3624(c)(2); 28 C.F.R. § 570.21. The 6 months of home confinement is not additional to the 12 months of pre-release custody. Guess v. Werlinger, 421 Fed.Appx. 215, 217 (3d Cir. 2011). Rather, the statute authorizes a maximum of 12 months pre-release custody, either to a residential reentry center, or a combination of residential reentry center placement and home confinement. 18 U.S.C. § 3624(c).
The statute requires BOP to assess prisoners for placement in various facilities on an individual basis consistent with five factors set forth in § 3621(b). Those factors are: (1) the nature of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence-(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission. 18 U.S.C. § 3621(b).
C. BOP's Assessment of Villalon's Eligibility for Pre-Release Community Confinement
Warden Rosalez's response and motion to dismiss explains that on January 19, 2023, Villalon was evaluated and recommended for residential re-entry center placement. Dkts. 7, at 4; 7-1, at 3. The resulting re-release plan was approved on February 10, 2023, after the U.S. Probation Office of the United States District Court for the Southern District of Texas contacted Villalon's sister, confirmed Villalon would be allowed to reside at her residence in Mission, Texas, while on pre-release community confinement, and U.S. Probation inspected her home. Dkt. 7-3, at 2. Warden Rosalez argues that, since Villalon was evaluated and recommended for residential reentry center placement and was therefore granted the relief he seeks, his petition is moot and should be dismissed. Dkt. 7, at 3-4.
Because the record shows that BOP has, in fact, evaluated and recommended Villalon for pre-release community confinement and his pre-release plan has been approved, Villalon's request that BOP “[b]egin [his] pre-release process” has been granted. Dkt. 1, at 14. Further, since Villalon has been recommended and approved to serve his home confinement custody at his sister's residence in Mission, Texas, his request that BOP “[e]stablish the specific [residential re-entry center] to which [he] will be assigned for [his] pre-release custody” has also been granted. Dkt. 1, at 14. Therefore, Villalon's claims as to BOP evaluating him for pre-release custody and specifying the specific location where he will be assigned for pre-release custody under the SCA should be dismissed as moot. Am. Med. Ass'n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988) (“If a dispute has been resolved or if it has evanesced because of changed circumstances, including the passage of time, it is considered moot.”); Goldin v. Bartholow, 166 F.3d 710, 717 (5th Cir. 1999) (“A moot case presents no Article III case or controversy, and a court has no constitutional jurisdiction to resolve the issues it presents.”); Salgado v. Fed. Bureau of Prisons, 220 Fed.Appx. 256, 257 (5th Cir. 2007) (“Although an action is not moot simply because a § 2241 petitioner is no longer in custody . . . an action is moot when the court cannot grant the relief requested by the moving party.”) (internal citations omitted).
D. Villalon's Remaining Requests
Villalon's petition requests that this Court order BOP to designate a prerelease custody start date and justify any award of less than 12 months of pre-release custody under the SCA. Dkt. 1, at 14. Warden Rosalez responds that decisions concerning the start date of pre-release custody and length of pre-release custody are within the BOP's discretion under the SCA and that this Court lacks jurisdiction over them. Dkt. 7, at 6.
As an initial matter, while Villalon is eligible for home detention on July 21, 2024, BOP has not yet designated a date on which his pre-release custody at his sister's residence in Mission, Texas will begin. Dkt. 7-1, at 13; 7-2, at 4. Accordingly, neither has BOP “[stated] [a] legally valid cause for any award of less than the 12 months” of pre-release custody” as Villalon requests, because BOP has not yet determined whether Villalon will be granted the full 12 months of pre-release custody available under the SCA, or some lesser amount of time. Dkt. 1, at 14. Therefore, Villalon's request concerning the start date and duration of his pre-release custody is premature at this time and should be dismissed. Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”).
Villalon is advised that, while the SCA provides that placement in pre-release custody “is not to exceed 12 months,” there is no requirement on the part of BOP that it recommend pre-release custody in a residential reentry center or home confinement for the full 12-month period available. 18 U.S.C. § 3624(c)(1). Additionally, if an inmate serves an amount of his pre-release custody time in some combination of a residential re-entry center and home confinement, the length of home confinement may only be up for 10% of Villalon's term of imprisonment, or 6 months, whichever is shorter. Id. § 3624(c)(2); 28 C.F.R. § 570.21. Under the statute, it is plainly within BOP's discretion how many months of pre-release custody Villalon will serve and how that time will be divided between a residential re-entry center or in home confinement, if at all. BOP's determination will be guided by the factors denoted in the statute, namely, the nature of the facility, the nature and circumstances Villalon's offense, Villalon's history and characteristics, any statement of the court that sentenced him, and any policy statement issued by the Sentencing Commission. 18 U.S.C. § 3621(b).
Additionally, once BOP has determined how many months of pre-release custody Villalon will serve and the precise start date of his pre-release custody, Villalon must first exhaust his administrative remedies through the Bureau of Prisons should he take issue with BOP's decision. Fuller, 11 F.3d at 62.While Villalon has previously raised the issues of calculation and application of his FSA time credits to his projected release dates and home detention eligibility dates, his requests concerning the start date and duration of his pre-release custody were not part of the administrative review he requested. See Dkt. 1, at 21-30.
See McKart v. United States, 395 U.S. 185, 194 (1969) (“The administrative agency is created as a separate entity and invested with certain powers and duties. The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction ... ‘(t)he exhaustion doctrine is, therefore, an expression of executive and administrative autonomy.' This reason is particularly pertinent where the function of the agency and the particular decision sought to be reviewed involve exercise of discretionary powers granted the agency by Congress, or require application of special expertise.”).
Because the BOP has evaluated Villalon's eligibility for pre-release custody in a residential re-entry center or home confinement, recommended him for home confinement, and obtained approval of his pre-release plan, Villalon's requests that BOP evaluate his pre-release custody eligibility and designate a location for prerelease custody are moot. The undersigned recommends that Warden Rosalez's motion as to these claims should be granted.
Further, because BOP has not yet designated a date on which Villalon's prerelease custody will begin or the duration of his pre-release custody, Villalon cannot meet his burden of demonstrating the futility of administrative review as to his remaining claims, notwithstanding the fact that decisions concerning the start date and duration of pre-release custody are within the BOP's discretion under the SCA. Villalon's petition as to these issues should be dismissed without prejudice for failure to exhaust his administrative remedies.
IV. RECOMMENDATION
In accordance with the foregoing discussion, the undersigned RECOMMENDS that the District Court GRANT Warden Rosalez's motion to dismiss, Dkt. 7, and DISMISS AS MOOT IN PART and DISMISS WITHOUT PREJUDICE IN PART Villalon's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, Dkt. 1. The referral in this is CANCELED.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).