Summary
In 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, 2021 WL 2269960 (D.S.C. June 2, 2021), the court noted: “Even if Plaintiff had exhausted his administrative remedies, this case would be subject to dismissal on an additional basis.
Summary of this case from Negron-Soto v. KnightOpinion
8:21-cv-0388-JD-JDA
03-31-2021
James L. Wright, Petitioner, v. Warden of Edgefield FCI, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
James L. Wright (“Petitioner”) is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”) and is currently incarcerated in South Carolina at the Edgefield Federal Correctional Institution (“FCI Edgefield”). [Doc. 1-6 at 2.] Proceeding pro se, Petitioner brings this action challenging the BOP’s purported refusal to calculate his sentence via Earned Time Credits (“ETC”) under the First Step Act (“FSA”) in accordance with 18 U.S.C. § 3632(d)(4)(A). [Id.] 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 Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, the Petition filed in this action is subject to summary dismissal.
BACKGROUND
On May 31, 2012, Petitioner pled guilty pursuant to a written plea agreement in the United States District Court for the Middle District of Florida at case number 8:12-cr-00070-SDM-EJ to Count One of the Indictment, charging him with possession with intent to distribute five or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii). [Doc. 1-6 at 2]; see also United States v. Wright, No. 8:12-cr-00070- SDM-EJ (M.D. Fla. May 31, 2012) (“Wright”), Docs. 9; 29; 31; 34; 35. On August 22, 2012, Petitioner was sentenced to a term of 120 months’ imprisonment and 96 months’ supervised release. [Doc. 1-6 at 3]; Wright, Docs. 36; 37.
The Court takes judicial notice of the records in Petitioner’s criminal case. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.’”).
Petitioner commenced this action on February 5, 2021, challenging the BOP’s implementation of the ETC calculation set forth in the FSA. [Doc. 1 at 6.] Petitioner contends the BOP should award him ETC that he has accumulated since the passage of the FSA on December 21, 2018, for his completion of qualified education classes and prison employment. [Id. at 1, 6.] Petitioner contends that he is entitled to 214 days of ETC. [Id. at 6.] Petitioner contends that, without the ETC he contends he is due, he is scheduled for release on October 23, 2022; however, with the ETC he is due, his new release date should be March 23, 2022. [Id. at 1.]
A prisoner’s pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Petitioner’s envelope was marked as received by the prison mailroom at FCI Edgefield on February 5, 2021. [Doc. 1-5 at 2.]
Petitioner has filed a typed petition [Doc. 1] as well as a petition on the standard court form [Doc. 1-6]. The Court construes both documents together as the “Petition” filed in this matter. Petitioner has attached to his Petition a number of exhibits, including copies of documents purportedly from his participation in prison work and education programs. [Docs. 1-1; 1-2; 1-8; 1-9.]
According to the BOP’s Inmate Locator, Petitioner currently has a projected release date of October 23, 2022. See https://www.bop.gov/inmateloc/ (search by Petitioner’s BOP Register Number “48432-018”) (last visited Mar. 31, 2021). The Court notes that projected release dates inherently fluctuate. This is so because they depend on a number of factors, including a prisoner’s amount of credit for pre-sentence detention or “jail time served”; the award of various types of sentence credits, such as when an inmate earns good time, work, education, or other sentence-related credits, which reduce his max-out date; and the loss of those credits for disciplinary reasons, which may extend the max-out date. See Twitty v. Reynolds, No. 0:11-cv-2667-DCN-PJG, 2012 WL 2366452, at *1 n.2 (D.S.C. June 1, 2012), Report and Recommendation adopted by 2012 WL 2368330 (D.S.C. June 21, 2012).
As to the exhaustion of the BOP’s administrative remedies program, Petitioner contends he sought an informal resolution of his complaint and then filed a formal Request for Administrative Remedy (Form BP-9) concerning the BOP’s decision at the initial step. [Doc. 1-6 at 6.] However, Petitioner concedes that he did not file an Administrative Remedy Appeal (Form BP-10) at the next step, and he did not file a “final administrative appeal” under 28 C.F.R. § 542.15. [Id.] Petitioner contends that “[t]he amount of time it would take to complete the administrative process is greater than the amount of time [he] ha[s] left to go to the halfway house.” [Id.] Additionally, Petitioner contends exhaustion would be futile and he should be exempt from the exhaustion requirements because this case “presents a narrow dispute of statutory construction.” [Doc. 1 at 9.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520–21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner’s legal arguments for him. Small v. Endicott, 998 F.2d 411, 417–18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
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; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
Habeas Corpus
Generally
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678–79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attack[ing] the computation and execution of the sentence rather than the sentence itself.” U.S. v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (per curiam); Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP’s sentencing calculations”). A petition pursuant to § 2241 challenging the execution of a federal prisoner’s sentence generally addresses “such matters as the administration of parole, computation of a prisoner’s sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Manigault v. Lamanna, No. 8:06-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner’s sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.”). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434–35 (2004), and “in the district of confinement rather than in the sentencing court,” Miller, 871 F.2d at 490.
Exhaustion
The execution of sentences and the computation of jail time is an administrative function under the authority of the Attorney General, who 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. United States v. Wilson, 503 U.S. 329, 334–35 (1992). Accordingly, the Attorney General, through the BOP, must make the initial determination to award sentence credit for time spent in official detention; a district court does not have the jurisdiction to make an initial determination. U.S. v. Jeter, 161 F.3d 4, at *1 (4th Cir. 1998) (unpublished table decision). As a result, prior to filing a § 2241 habeas petition, a petitioner must exhaust his administrative remedies. McClung v. Shearin, 90 F. App’x 444, 445 (4th Cir. 2004). The exhaustion of administrative remedies is not waivable. Jeter, 161 F.3d 4, at *2. Further, a petitioner’s failure to exhaust administrative remedies is excused only upon a showing of cause and prejudice. McClung, 90 F. App’x at 445.
The BOP’s Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The grievance process consists of three levels of review: institutional, regional, and national. See Id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request; Requests must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director’s response, the inmate may appeal to the General Counsel; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id.
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts have required 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 a § 2241 matter); Timms v. Johns, 627 F.3d 525, 531 (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). Any arguments not advanced at each step of the administrative appeal are procedurally defaulted. See Moffat v. Broyles, 288 F.3d 978, 981–82 (7th Cir. 2002). Moreover, if a prisoner cannot obtain an administrative remedy because of his failure to timely appeal at the administrative level, then the prisoner has procedurally defaulted his § 2241 claim, unless the prisoner can demonstrate cause and prejudice for the failure. See, e.g., Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3rd Cir. 1996), cited with approval in Watkins v. Compton, 126 F. App’x 621, 622 (4th Cir. 2005); Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994). Additionally, “[w]here 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 F. App’x 797, 798 (11th Cir. 2006); see Timms, 627 F.3d at 533. Although the exhaustion of administrative remedies is not waivable, Jeter, 161 F.3d at *2 (4th Cir. 1998), some courts have held that the judicial exhaustion requirement of § 2241 may be excused by courts for discretionary reasons, such as where requiring exhaustion would be futile. See, e.g., Dunkley v. Hamidullah, No. 6:06-cv-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007). Further, courts have emphasized a petitioner’s failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice. McClung, 90 F. App’x at 445 (citing Carmona, 243 F.3d at 634–35).
“The purpose of the exhaustion requirement is to ensure that the agency has an opportunity to review and revise its actions before litigation is commenced, which preserves both judicial resources and administrative autonomy, and also to ensure that a court reviewing the agency’s final action does so upon a developed and complete evidentiary record.” Sennett v. Quintana, No. 5:19-cv-085-JMH, 2019 WL 1085173, at *2 (E.D. Ky. Mar. 7, 2019). Indeed, as one court has noted,
[O]ne of the core values that the exhaustion requirement is designed to serve[ is] ensuring that the Court has an adequate record before it to review the agency action in question. Without a full administrative record explaining the BOP’s actions and the reasons for those actions, the Court lacks an adequate evidentiary basis upon which to review the claims asserted in the petition.Schmutzler v. Quintana, No. 5:19-cv-046-DCR, 2019 WL 727794, at *1 (E.D. Ky. Feb. 20, 2019) (internal citation omitted).
DISCUSSION
As noted, Petitioner commenced this action to challenge the BOP’s calculation of his sentence, and he asks this Court to order the BOP to award him ETC pursuant to the FSA for his completion of certain programs. However, this action is subject to summary dismissal because Petitioner has not exhausted his administrative remedies, and he has failed to demonstrate any cause or prejudice suggesting the exhaustion requirement should be waived.
Petitioner concedes he has not exhausted his remedies. However, he argues that exhaustion would be futile and should be excused because his claims present a dispute involving statutory construction. [Doc. 1 at 9.] Petitioner’s argument is without merit as he fails to identify any issue of statutory construction that the Court must resolve. Instead, he simply asks the Court to order the BOP to calculate and award ETC for Evidence-Based Recidivism Reduction Programming under the FSA. Further, “[t]he BOP is perfectly capable of implementing sentencing requirements required by statute, and Petitioner’s argument that instead a court should review this matter in the first instance is therefore without merit.” Cunningham v. Warden, FCI-Bennettsville, No. 9:10-cv-2105-CMC-BM, 2011 WL 9933741, at *2 (D.S.C. Apr. 19, 2011), Report and Recommendation adopted by 2011 WL 9933742 (D.S.C. June 1, 2011).
As such, Petitioner must exhaust his administrative remedies before bringing an action in this Court. Indeed, this is precisely the type of case which requires a fully developed administrative record so that the Court may evaluate the BOP’s calculation of time to be credited to Petitioner’s sentence. See Mero v. Phelps, No. 4:20-cv-3615-MGL-TER, 2020 WL 7774378, at *2 (D.S.C. Nov. 2, 2020) (“The BOP should be afforded the opportunity to correct any alleged errors, to develop its factual record, and apply its expertise to the situation.”), Report and Recommendation adopted by 2020 WL 7769784 (D.S.C. Dec. 30, 2020). Therefore, because Petitioner has not exhausted his administrative remedies, the Petition should be dismissed. See Rodgers v. Glenn, No. 1:16-cv-16-RMG, 2017 WL 1051011, at *3 (D.S.C. Mar. 20, 2017) (“Because [Petitioner] admits he did not [exhaust his administrative remedies], his lawsuit is barred by statute.”); Arriaga v. Knight, No. 1:21-cv-0258-JFA-SVH, Doc. 7 at 3–4 (D.S.C. Feb. 3, 2021) (finding the petitioner failed to exhaust his administrative remedies in a case asserting identical claims to the present case), Report and Recommendation adopted by Doc. 12 (D.S.C. Feb. 23, 2021).
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 AND RECOMMENDATION
Accordingly, it is recommended that the § 2241 Petition be DISMISSED without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
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 300 East Washington Street, Room 239 Greenville, South Carolina 29601
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).