Opinion
CIV-21-941-HE
02-15-2022
SERGIO DELEON, Petitioner, v. BUREAU OF PRISONS, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a federal prisoner appearing pro se, filed an amended petition for habeas corpus relief under 28 U.S.C. § 2241 challenging the Bureau of Prisons' (BOP) calculation of his sentence. Doc. 8. Specifically, Petitioner alleges “[t]he BOP is not crediting [him] for time served for all the days [he has] served since [his] sentencing date.” Id. at 3. The government has responded arguing that (1) Petitioner has not exhausted his administrative remedies; and (2) his claim fails on the merits under 18 U.S.C. § 3585. Doc. 16, at 5. Petitioner did not reply to the government's response. The Court should dismiss the petition because Petitioner has not exhausted his administrative remedies.
United States District Judge Joe Heaton has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 6.
Citations to a court document are to its CM/ECF designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Petitioner did not exhaust available administrative remedies.
Exhaustion of available administrative remedies is a prerequisite to federal habeas corpus relief pursuant to 28 U.S.C. § 2241. See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). A petitioner can satisfy the exhaustion requirement through proper use of the available administrative procedures. See Woodford v. Ngo, 548 U.S. 81, 93 (2006) (addressing proper exhaustion of administrative remedies under the Prison Litigation Reform Act). “The burden of showing exhaustion rests on the petitioner in federal habeas corpus actions.” Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981) (per curiam); see also Jones v. Davis, 366 Fed.Appx. 942, 944 (10th Cir. 2010).
The BOP administrative remedy procedure is available to federal prisoners such as Petitioner. See 28 C.F.R. §§ 542.10 to -542.19. The administrative remedy procedure allows “an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.” Id. § 542.10(a). Generally, a federal prisoner exhausts administrative remedies by trying to resolve the matter informally and then completing all three formal steps by filing an administrative remedy request with institution staff, as well as regional and national appeals. Id. §§ 542.13 to -542.15. An inmate has twenty days to complete informal resolution and file a formal written administrative remedy request. Id. § 542.14(a). An inmate has twenty days to appeal to the appropriate regional director and thirty days to file a national appeal to the BOP Central Office. Id. § 542.15(a). These deadlines can be extended if the inmate shows a valid reason for delay. Id. §§ 542.14(b), 542.15(a).
The BOP has twenty days to respond to an administrative remedy request, thirty days to respond to a regional appeal, and forty days to respond to a national appeal, and these response times can be extended once by twenty days at the institution level, thirty days at the regional level, and twenty days at the national level. Id. § 542.18. “If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.” Id.
An administrative remedy request or appeal may be rejected and returned to the inmate if the inmate flouts the procedural requirements of the administrative remedy procedure. Id. § 542.17(a). When a submission is rejected, the inmate is provided written notice of the reason for rejection and, if the defect is correctable, a reasonable extension of time to correct the defect and resubmit the request or appeal. Id. § 542.17(b). If an administrative remedy request or appeal is rejected and the inmate is not given an opportunity to correct the defect, the inmate may appeal the rejection to the next level. Id. § 542.17(c).
In her signed and verified Declaration, Darci Hutchings, the secretary for the Federal Correctional Institution-El Reno (where Petitioner is housed) outlines this process. Doc. 16, Att. 1, at 1-2. She explains that since July 1, 1990, all administrative remedy submissions from any BOP institution, the Regional Director, and the BOP's Office of the General Counsel have been tracked by SENTRY, a computer-based information system. Id. at 2. She has submitted an abstract showing Petitioner has filed no Administrative Remedy Requests or Appeals with the BOP. Id. at 9. Thus, Petitioner never completed the administrative remedy process related to any claim in his Petition.
In his amended petition, Petitioner confirms he did not seek any administrative remedies prior to filing his habeas corpus petition. Doc. 8, at 2.
Respondent has shown Petitioner did not exhaust his administrative remedies before filing his petition. For that reason, the petition should be dismissed without prejudice. Garza, 596 F.3d at 1203; see also Yarclay v. Micieli, No. CIV-21-1159-R, 2022 WL 193738, at *2 (W.D. Okla. Jan. 20, 2022) (dismissing § 2241 petition without prejudice for failure to exhaust administrative remedies).
II. Recommendation and notice of right to object.
For these reasons, the undersigned recommends that the Court dismiss Petitioner's § 2241 habeas petition.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before March 8, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in the captioned matter.