Opinion
C. A. 6:24-cv-01544-JFA-KFM
04-22-2024
George Washington Dunn, Petitioner, v. Sean Janson, Respondent.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE.
The petitioner, a federal prisoner in the custody of the Federal Bureau of Prisons (“BOP”), proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
ALLEGATIONS
Petitioner's Conviction and Sentence
The petitioner is currently serving a two hundred and five month sentence (to be followed by five years supervised release) after being found guilty by a jury of conspiracy to distribute narcotics, possession of five kilograms or more of cocaine or ecgonine, and possession of a firearm during the commission of a drug trafficking crime. See United States v. Dunn, C/A No. 1:09-cr-00320-TCB-JKL ) at docs. 304; 326 (N.D.Ga.). The petitioner appealed, and his convictions and sentence were affirmed. See United States v. Dunn, C/A No. 12-10672 (11th Cir. Aug. 14, 2013). The United States Supreme Court then denied his petition for a writ of certiorari.
Petitioner's Prior Collateral Attacks
The petitioner filed his first motion pursuant to § 2255 on June 25, 2015, and an amended motion pursuant to § 2255 on June 26, 2015. See United States v. Dunn, C/A No. 1:09-cr-00320-TCB-JKL, at docs. 447; 448. The motions were denied as untimely on December 28, 2017. Id. at doc. 526. The petitioner filed another motion pursuant to § 2255 on November 6, 2020. Id. at doc. 557. The motion was recommended for dismissal as successive on November 13, 2020, and the petitioner withdrew the motion on December 8, 2020. Id. at docs. 559; 561. The Eleventh Circuit later denied the petitioner's request for leave to file a successive § 2255 motion. Id. at 564.
The petitioner then filed a motion for compassionate release on July 6, 2021, which was denied on July 12, 2021. Id. at docs. 570; 572. The petitioner then filed another motion pursuant to § 2255 based on the First Step Act as well as an amended motion. Id. at docs. 578; 589. The amended motion was denied on January 10, 2024. Id. at doc. 602.
During this same time, the petitioner filed his first petition pursuant to § 2241 regarding credits he sought under the First Step Act of 2018 (“FSA”) in this court. See Dunn v. Janson, C/A No. 6:23-cv-06080-JFA (D.S.C.). That matter was dismissed pursuant to Rule 41 on February 7, 2024, when he failed to bring his case into proper form. Id. at doc. 13.
Petitioner's Present Action
In the instant matter, which was transferred to this court on March 28, 2024, the petitioner challenges the execution of his sentence, arguing that he is not being provided appropriate credits under the FSA (doc. 1). The petitioner contends that he has fully exhausted his administrative remedies (id. at 2). The petitioner's only ground for relief is that he is entitled to earn FSA time credits because he has fully served his sentence for his § 924(c) conviction and is currently serving a sentence only for his § 841 conviction, which is eligible for FSA time credits (id. at 6). The petitioner has not asserted any specific relief, but appears to request that FSA time credits be added to his sentence (see doc. 1).
Attached to the petition, the petitioner has provided copies of his administrative remedy forms (doc. 1 at 8-13). Those documents indicate that the petitioner's sentence is considered in the aggregate; thus, his convictions are considered as a whole and make him ineligible to earn time credits under the FSA (id.).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the petitioner filed this action seeking relief pursuant to 28 U.S.C. § 2241. However, for the reasons that follow, his case is subject to summary dismissal. Because the petitioner was incarcerated in the District of South Carolina at Edgefield Federal Correctional Institution (“FCI Edgefield”) at the time this petition was filed and names the warden at FCI Edgefield as the respondent, his § 2241 petition is properly under consideration by this court. As noted, here, the petitioner seeks an order instructing the BOP to recalculate his sentence to reflect FSA time credits (doc. 1). However, as set forth in more detail below, the petition is subject to summary dismissal.
As noted in the order filed herewith, the BOP now lists the petitioner's location as the Atlanta Residential Reentry Management Office instead of FCI Edgefield; however, transfer of this matter is not required because the petitioner was housed at FCI Edgefield when he filed this action. See Lennear v. Wilson, 937 F.3d 257, 263 n.1 (4th Cir. 2019).
Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000). “Generally, a § 2241 petition ‘attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion ‘attacks the legality of detention.'” Rice v. Lamanna, 451 F.Supp.2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the “computation and execution of the sentence rather than the sentence itself”). As noted, the petitioner seeks an order instructing the BOP to recalculate his sentence based on the FSA (doc. 1). See Diaz v. Warden, FCI Edgefield, C/A No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting that a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations,” including time credits) (citing Yi v. Fed. Bureau of Prisons, 412 F.3d 526 (4th Cir. 2005); United States v. Little, 392 F.3d 671, 679 (4th Cir. 2004)).
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 Cir. Ct., 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 and citation omitted)). Exhaustion allows prison officials to develop a factual record and provides “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 McCullough v. Warden of FCI Williamsburg, C/A No. 8:19-cv-00630-BHH-JDA, 2019 WL 3308276, at *3 (D.S.C. Mar. 27, 2019), report and recommendation adopted by 2019 WL 3306099 (D.S.C. July 23, 2019) (citing 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 (3d Cir. 1996), cited with approval in Watkins v. Compton, 126 Fed.Appx. 621, 622 (4th Cir. 2005). Although the exhaustion of administrative remedies is not waivable, United States v. Jeter, 161 F.3d 4 (4th Cir. 1998) (table), 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, C/A No. 6:06-cv-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007). Nevertheless, courts have emphasized a petitioner's failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445 (citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634-35 (2d Cir. 2001)).
Here, the petitioner contends that he has fully exhausted his administrative remedies (doc. 1 at 2); however, he only indicates that he has filed one level of the administrative remedy, and the attachments to his petition do not reflect full exhaustion as required to bring this action (see id. at 8-13). Nevertheless, assuming, arguendo, that the petitioner exhausted his administrative remedies, his petition is still subject to dismissal on the merits. The FSA governs the calculation of federal prison sentences and allows eligible inmates to earn additional time credits to be applied toward time in pre-release custody or supervised release. See Mancillas v. Fed. Bureau of Prisons, C/A No. SAG-22-2767, 2023 WL 5404229, at *5 (D. Md. Aug. 22, 2023) (internal citations omitted). However, to be eligible to earn time credits under the FSA, an inmate must not have a conviction for a disqualifying offense. See 18 U.S.C. § 3632(d)(4)(D). Relevant to the instant matter, a prisoner is not considered eligible to receive time credits if a prisoner is 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.” 18 U.S.C. § 3632(d)(4)(D)(xxii). Here, the petitioner concedes that his § 924(c) conviction makes him ineligible for FSA time credits, but argues that he is eligible to earn FSA time credits because he has finished serving his sentence for his § 924(c) conviction and is currently completing the sentence for his § 841 conviction (doc. 1 at 6). However, “[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). As such, because the petitioner was sentenced to his § 924(c) and § 841 convictions concurrently, Dunn, C/A No. 1:09-cr-00320-TCB-JKL, at doc. 326, they are considered in the aggregate for purposes of his eligibility to receive FSA time credits. See Mancillas, 2023 WL 5404229, at *5. As such, even if the petitioner had exhausted his administrative remedies, summary dismissal would still be appropriate because the petitioner is ineligible to receive time credits under the FSA because of his § 924(c) conviction.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return because the petitioner is not entitled to additional FSA earned-time credits at this time. Therefore, the undersigned recommends that the district court dismiss this action without prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 2022 WL 3590436 (4th Cir. Aug. 17, 2022) (mem.) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The petitioner's attention is directed to the important notice on the next page.
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 250 East North Street, Room 2300 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).