Opinion
Case Number: 01-72188
August 9, 2001
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
I. Introduction
Petitioner Darby Bailey, a federal inmate currently incarcerated at the Federal Correctional Institution in Milan, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Because petitioner has failed to exhaust his administrative remedies, the court dismisses the petition without prejudice.
II. Procedural History
Petitioner is incarcerated pursuant to a conviction in the United States District Court for the Northern District of Ohio, for violating 18 U.S.C. § 922 (g)(1). On June 14, 2000, he was sentenced to fifty-seven months imprisonment.
Previously, petitioner was arrested on November 29, 1998, for assaulting two officers at the United States Post Office in Cleveland, Ohio. During a search of petitioner's vehicle pursuant to this arrest, police officers found a duffel bag containing three boxes of ammunition. On December 1, 1998, petitioner was released on bond. On June 18, 1999, while on bond, petitioner was stopped by police for a traffic violation and arrested for driving with a suspended license. During a search of the vehicle, police officers found a shotgun, shotgun shells and a box of .45 caliber hollow point ammunition in petitioner's vehicle. Petitioner was released on the same date.
On June 14, 2000, petitioner was sentenced to fifty-seven months imprisonment. He voluntarily surrendered to the Federal Bureau of Prisons on July 20, 2000. The Bureau of Prisons assigned petitioner a sex offender Public Safety Factor based on his 1980 conviction in Cuyahoga County Common Pleas Court for Gross Sexual Imposition.
On January 28, 2001, petitioner filed an inmate request for administrative remedy with the warden requesting credit against his federal sentence for the time periods he was released on bond. The warden denied the request. He filed an appeal with the Bureau of Prisons North Central Regional Office, which was denied. Petitioner then attempted to file an appeal with the General Counsel, Central Office for Inmate Appeals. The appeal, however, was rejected because petitioner failed to include a copy of his institution administrative remedy request or a copy of the regional administrative remedy appeal form. Petitioner did not attempt to file another appeal.
On June 19, 2001, petitioner filed the pending petition for a writ of habeas corpus claiming that the Bureau of Prisons incorrectly calculated his sentence when it failed to award him credit against his federal sentence for the periods he was released on bond and that the Bureau of Prisons improperly assigned a "sex offender" Public Safety Factor to petitioner's prison classification.
III. Analysis
Respondent claims that the pending petition should be dismissed because petitioner has failed to exhaust his administrative remedies. A federal habeas corpus petitioner must exhaust administrative remedies before seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. Little v. Hopkins, 638 F.2c1 953, 954 (6th Cir. 1981). See also Watts v. Bogan, 1995 WL 108993, *1 (6th Cir. March 14, 1995). The petitioner bears the burden of establishing exhaustion. Prather, 822 F.2d 1418, 1420, n. 3 (6th Cir. 1987).
In the instant case, petitioner has failed to establish exhaustion of administrative remedies . . . The Bureau of Prisons provides administrative remedies pursuant to which a federal prisoner may attack his sentence computation. First, a complaining prisoner must submit his complaint to the institutional staff. If the staff is unable to resolve his complaint, the prisoner may file a formal request for administrative remedy with the prison warden. 28 C.F.R. § 542.14. If the prisoner is dissatisfied with the response, he may then appeal to the Regional Director and, if still unsatisfied, to the General Counsel in the Central Office. 28 C.F.R. § 542.15.
Petitioner presented his claims to the institutional staff, the prison warden, and the Regional Director. He has not, however, presented his claims to the General Counsel in the Central Office. Petitioner attempted to file an appeal with the Central Office, but that appeal was rejected for failure to comply with filing requirements. Petitioner has not attempted to file another appeal with the Central Office. Generally, a prisoner must file an appeal with the Central Office within thirty days from the date the Regional Director signed the order denying the prisoner's appeal. However, where a prisoner "demonstrates a valid reason for delay, these time limits may be extended." 28 C.F.R. § 542.15 (a). The thirty-day time limit for petitioner to file an appeal with the Central Office has passed. But, Petitioner may still seek an extension of that thirty-day time limit before seeking relief in this court. Accord Bell v. U.S. Parole Commission, 1988 WL 123603, *1 (6th Cir. Nov. 17, 1988).
Thus, because petitioner has not appealed to the General Counsel in the Central Office for Inmate Appeals pursuant to 28 C.F.R. § 542.15, this court finds that he has failed to exhaust his administrative remedies. This court further finds that petitioner still has an administrative remedy available. Therefore, this court dismisses the petition without prejudice for failure to exhaust administrative remedies.
IV. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.