Opinion
CV-22-0374-TUC-RCC (EJM)
10-12-2023
Ronald Michael Capito, Petitioner, v. A. Dulgov, Warden, Respondent.
REPORT AND RECOMMENDATION
Eric J. Nilovich, United States Magistrate Judge.
Currently pending before the Court is Petitioner Ronald M. Capito's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Petition”) (Doc. 1). Respondent has filed a Return and Answer to Writ of Habeas Corpus (“Answer”) (Doc. 10), and Petitioner replied (Doc. 11). The Petition is ripe for adjudication.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).
I. BACKGROUND
At the time Petitioner filed his Petition (Doc. 1), Petitioner was an inmate incarcerated at the Federal Correctional Institution in Safford, Arizona (“FCI Safford”). See Petition (Doc. 1). Currently, Petitioner is incarcerated at the Federal Correctional Institution Terminal Island in San Pedro, California (“FCI Terminal Island”). See Fed. Bureau of Prisons (“BOP”) Inmate Locater, https://www.bop.gov/inmateloc/ (last visited October 5, 2023). Petitioner is serving a 219-month term of imprisonment, comprised of 135-months for four (4) counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d), and 84-months for use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). See Response (Doc. 10), Warner Decl. (Exh. “A”), Inmate Data (Attach. “1”) at 6-9; Response (Doc. 10), Warner Decl. (Exh “A”), Individualized Needs Plan - Program Review (Attach. “2”) at 12. Petitioner's projected release date is September 28, 2025. See Fed. BOP Inmate Locater, https://www.bop.gov/inmateloc/ (last visited October 5, 2023). On August 19, 2022, Petitioner filed a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1). Petitioner alleges that “[t]he Federal Bureau of Prisons has erroneously determined that Petitioner is ‘in-eligible for First Step Act' time credits, ‘under 18 U.S.C. §§ 3632(a), and (d)(4), and has ‘arbitrarily and capriciously withheld the' prerelease custody credits' under 18 U.S.C. § 3632(d)(4)-(A)(i) and (ii), in violation of federal law[.]” Petition (Doc. 1) at 4. Petitioner acknowledges that the First Step Act disallows “programing time credits” to his conviction unlawful possession or use of a firearm conviction pursuant to 18 U.S.C. § 924(c), but asserts that he is entitled to accrue such credits under his bank robbery offense. Petition (Doc. 1) at 4. Petitioner further alleges that the Bureau of Prisons clearly erred and made an arbitrary and capricious decision to aggregate his consecutive sentences pursuant to 18 U.S.C. § 3584(c) and preclude him from earning First Step Act Federal Time Credits entirely. Petition (Doc. 1) at 4.
Unless otherwise noted, page citations refer to the Case Management/Electronic Case Files (“CM/ECF”) page number for ease of reference.
II. THE INSTANT HABEAS
A. Jurisdiction-In General
“Federal courts are always ‘under an independent obligation to examine their own jurisdiction,' . . . and a federal court may not entertain an action over which it has no jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). “Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court.” Id. at 864. Therefore, before proceeding to any other issue a court must establish whether a habeas petition is filed pursuant to § 2241 or § 2255 to determine whether jurisdiction is proper. Id. at 865.
Here, Petitioner does not claim that the sentencing court imposed an illegal sentence; rather he seeks relief with respect to the application of First Step Act time credits. As such, Petitioner is challenging the manner, location, or condition of the execution of his sentence. See e.g., Rogers v. United States, 180 F.3d 349 (1st Cir. 1999) (Section 2241 petition is appropriate vehicle to challenge the correctness of a jail-time credit determination, once administrative remedies have been exhausted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc), (“[challenges to the validity of any confinement or to the particulars affecting its duration are the province of habeas corpus[.]” (quoting Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004)); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (a prisoner's challenge to the “manner in which his sentence was executed . . . [is] maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”). Such a challenge must be brought pursuant to § 2241 in the custodial court. At the time of filing the Petition (Doc. 1), Petitioner was incarcerated at FCI Safford in Arizona. Accordingly, this Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990).
B. Exhaustion
1. In General
The Ninth Circuit Court of Appeals has stated:
[28 U.S.C. § 2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. [Footnote omitted.] However, we require, as a prudential matter, that habeas petitioners exhaust
available judicial and administrative remedies before seeking relief under § 2241.Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). “The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement.” Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55, 115 S.Ct. 2021, 2023-24, 132 L.Ed.2d 46 (1995). “Nevertheless, ‘[p]rudential limits like jurisdictional limits and limits on venue, are ordinarily not optional.'” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (alterations in original) (quoting Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006)).
“Courts may require prudential exhaustion if ‘(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.'” Id. (quoting Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). “When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (citations omitted). Exhaustion may be excused if pursuing an administrative remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993).
If a prisoner is unable to obtain an administrative remedy because of his failure to appeal in a timely manner, then the petitioner has procedurally defaulted his habeas corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis, Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)). If a claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647-48, 91 L.Ed.2d 397 (1986) (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906-08 (9th Cir. 1986) (cause and prejudice test applied to pro se litigants).
2. Exhaustion in the Instant Case
Here, Respondent did not comment regarding Petitioner's exhaustion of his administrative remedies. Petitioner urges that he presented the issue to the Office of General Counsel. Petition (Doc. 1) at 4. The Ninth Circuit Court of Appeals has recognized that:
the requirement of exhaustion of remedies [is to] aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings.Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). In this case, the factual record is adequately developed, and nothing in the record suggests that further administrative review would aid judicial review. The Court will consider the Petition (Doc. 1).
C. Legal Standards
1. First Step Act of 2018
On December 21, 2018, the First Step Act of 2018 (“FSA”) was enacted into law. Pub. L. No. 115-391, 132 Stat. 5194. “The act was the culmination of a bipartisan effort to improve criminal justice outcomes, as well as to reduce the size of the federal prison population while also creating mechanisms to maintain public safety.” Fed. BOP, An Overview of the First Step Act, available at https://www.bop.gov/inmates/fsa/overview.jsp (last visited October 5, 2023). “As part of the FSA, Congress directed the BOP to implement reentry initiatives, including programming and programming incentives, good-time credit, and compassionate release opportunities.” Mars v. Heisner, 2023 WL 4977335 (D. Ariz. June 26, 2023). Congress further directed the Attorney General to develop a risk and needs assessment system, to be used to determine the recidivism risk of each prison at intake, assess and determine a prisoner's risk of violent or serious misconduct, determine the type and amount of evidence-based recidivism reduction program appropriate for each prisoner, perform periodic recidivism risk reassessment of each prisoner, reassign prisoners to the appropriate evidence-based recidivism reduction programs or productive activities, determine when to provide incentives and rewards for participation in evidence-based recidivism reduction programs or productive activities, determine when a prisoner is ready to transfer into prerelease custody or supervised release in accordance with section 3624, and determine the appropriate use of audio technology for program course materials. 18 U.S.C. § 3632(a). “Any inmate sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense[,] [except those serving a term of imprisonment for an offense specified in 18 U.S.C. § 3632(d)(4)(D),] or any person in the custody of the Bureau, is eligible to earn FSA Time Credits[.]” 28 C.F.R. § 523.41(d). Section 3632(d)(4)(D)(xxii), Title 18, United States Code, deems prisoners who are serving a sentence for a conviction under “Section 924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime[,]” ineligible to earn FSA time credits.
An eligible prisoner “shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities[,]” and can earn additional 5 days of time credits per every 30 days if they have been determined by the BOP to be at a minimum or low risk for recidivating. 18 U.S.C. § 3632(d)(4) (emphasis added). “Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release[,] [and] [t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C).
2. Sentence Aggregation
Congress has directed that “[i]f multiple terms of imprisonment are imposed on a defendant at the same time . . . the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a). Congress has further instructed that “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.” 18 U.S.C. § 3584(c). The Bureau of Prisons' policy regarding the aggregation of multiple terms of imprisonment mirrors the language set forth by Congress in 18 U.S.C. § 3584(a), (c). See BOP PS 5880.28, Sentence Computation Manual (CCCA of 1984) at 1-31 through 1-33, available at https://www.bop.gov/policy/progstat/5880028.pdf (last visited October 6, 2023).
D. Availability of FSA Time Credits
Petitioner alleges that “[t]he Federal Bureau of Prisons has erroneously determined that Petitioner is ‘in-eligible for First Step Act' time credits, ‘under 18 U.S.C. §§ 3632(a), and (d)(4), and has ‘arbitrarily and capriciously withheld the' prerelease custody credits' under 18 U.S.C. § 3632(d)(4)-(A)(i) and (ii), in violation of federal law[.]” Petition (Doc. 1) at 4. Petitioner further asserts that the Bureau of Prisons clearly erred and made an arbitrary and capricious decision to aggregate his consecutive sentences pursuant to 18 U.S.C. § 3584(c) and preclude him from earning First Step Act Federal Time Credits entirely. Petition (Doc. 1) at 4. Petitioner's arguments are without merit and shall be denied.
As explained in Section II.C.1., supra, and as acknowledged by Petitioner, his conviction pursuant to 18 U.S.C. § 924(c) makes him ineligible to earn FSA time credits. Furthermore, the Bureau is acting consistently with Congressional mandate in its aggregation of Petitioner's multiple sentences. See Section II.C.2., supra. Congress's use of the word “shall” unequivocally directs BOP to treat multiple, consecutive, terms of imprisonment “as a single aggregate term.” 18 U.S.C. § 3584(c). Moreover, “[s]tatutory language . . . cannot be construed in a vacuum[;] [i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Roberts v. Sea-Land Services, Inc., 566 U.S. 93, 103 (2012) (quotations and citations omitted). Petitioner attempts to read each statute standing alone without regard for their interplay. Petitioner's misunderstanding of the statutory scheme has resulted in a claim devoid of merit.
III. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-22-0374-TUC-RCC.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.