Opinion
C. A. 23-4845-BHH-PJG
04-03-2024
Homer Berryhill, Petitioner, v. Warden Jansen, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Petitioner Homer Berryhill, a self-represented federal prisoner, filed this habeas corpus action pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636 and Local Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the Government's motion to dismiss, or in the alternative, motion for summary judgment. (ECF No. 14.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the Government's motion. (ECF No. 16.) Petitioner filed a response in opposition. (ECF No. 18.) Having carefully considered the parties' submissions and the record in this case, the court concludes the motion to dismiss should be granted.
BACKGROUND
The following allegations are taken as true for purposes of resolving the defendant's motion to dismiss. Petitioner is an inmate in the Federal Correctional Institution Edgefield Satellite Prison Camp. Petitioner alleges that the Federal Bureau of Prisons (“BOP”) violated his right to due process by incorrectly calculating the number of earned time credits Petitioner is owed under the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, 132 Stat. 5194 (2018). Under the First Step Act, a federal prisoner who successfully completes evidence-based recidivism reduction programming or productive activities can earn time credits that reduce his sentence through prerelease custody or supervised release. 18 U.S.C. § 2632(d)(4). However, eligibility for prerelease custody or supervised release may be limited by the prisoner's recidivism risk as determined by a risk and needs assessment system. See 18 U.S.C. §§ 3632(d)(4)(C) (application of time credits toward prerelease custody or supervised release) & 3624(g) (prerelease custody or supervised release for risk and needs assessment system participants); 28 C.F.R. § 523.42 (earning time credits); see also 28 C.F.R. § 523.44(c)(1), (d)(1) (applying time credits). Here, Petitioner alleges the risk and needs assessment tool used by the BOP in his case-the “1.2 PATTERN tool”-was full of errors, and Petitioner should be reassessed under the BOP's new “1.3 PATTERN tool.” (Compl., ECF No. 1 at 7.) Petitioner claims that if he were reassessed under the 1.3 PATTERN tool, he would gain 220 days of earned time credits that he was not awarded under the faulty 1.2 PATTERN tool. (Compl., ECF No. 1-1 at 1.) Petitioner claims that the BOP denied Petitioner the ability to correct and contest the errors in the 1.2 PATTERN tool assessment in violation of the Due Process Clause of the Fifth Amendment. (Id. at 9.) Petitioner asks the court to order that his assessment be recalculated and grant Petitioner the 220 additional days of earned time credit.
Petitioner also filed a motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 that seeks the same ultimate relief that Petitioner seeks in the petition for a writ of habeas corpus. (ECF No. 19.)
DISCUSSION
The Government argues this case should be dismissed because Petitioner failed to exhaust his administrative remedies. A petition for a writ of habeas corpus is a discretionary remedy of last resort, and as such, a prisoner must first exhaust his available administrative remedies in the BOP before the prisoner seeks habeas corpus relief. See Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010). Courts in this district recognize that exhaustion may be excused for futility. See, e.g., Jones, v. Phelps, C/A No. 1:21-418-JFA-SVH, 2021 WL 3668885, at *3 (D.S.C. June 16, 2021), report and recommendation adopted, No. 1:21-CV-00418-JFA, 2021 WL 3667396 (D.S.C. Aug. 17, 2021).
Petitioner admits he has not exhausted his administrative remedies. However, Petitioner argues that he should be excused from the exhaustion requirement based on the futility of exhausting his administrative remedies. First, he argues that the errors in the 1.2 PATTERN tool are cause to excuse the exhaustion requirement. But the mere fact that Petitioner may raise an issue that is ultimately meritorious does not demonstrate that it would be futile to pursue relief within the BOP. Petitioner provides no argument or evidence that the BOP would refuse to grant him relief if appropriate. Cf. Dunkley v. Hamidullah, No. 6:06-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007) (waiving the exhaustion requirement where the BOP's interpretation of the challenged statute was “clear and inflexible”). Second, Petitioner argues that he has no time to appeal because he received a late response to his administrative remedy appeal to the regional office (the last step before his final chance at appeal in the central office). But under BOP regulations, Petitioner may consider an appeal to the regional office denied if the regional office does not respond within thirty days. 28 C.F.R. § 542.18. Consequently, Petitioner fails to demonstrate that exhaustion of this issue in the BOP would be futile, and the court finds this matter should be dismissed without prejudice for failure to exhaust.
And the Government provides a declaration from a BOP paralegal demonstrating that Petitioner failed to exhaust his administrative remedies within the BOP. (Carter Aff., ECF No. 14-1 at 1-2.)
RECOMMENDATION
Based on the foregoing, the court recommends that the Government's motion to dismiss (ECF No. 14) be granted for Petitioner's failure to exhaust and Petitioner's motion for a preliminary injunction (ECF No. 19) be denied.
In light of the court's recommendation, Petitioner's motion to take judicial notice of documents concerning the merits of Petitioner's petition (ECF No. 12) is denied as moot.
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
901 Richland Street
Columbia, South Carolina 29201
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).