Opinion
8:23-cv-1619-JFA-JDA
05-01-2023
Ventura Garcia, a/k/a Ventura Garcia Olvera, Petitioner, v. Warden Janson, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge.
Ventura Garcia (“Petitioner”) is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”) and is currently incarcerated in South Carolina at the Edgefield Federal Correctional Institution (“FCI Edgefield”). [Doc. 1 at 1.] Proceeding pro se, Petitioner brings this action for habeas corpus relief under 28 U.S.C. § 2241 to challenge “[h]ow [his] sentence is being carried out, calculated, or credited by prison or parole authorities.” [Id. at 2.]
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, the Petition filed in this matter is subject to summary dismissal.
BACKGROUND
Petitioner commenced this action on April 14, 2023, by filing a petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 on the standard court form (the “Petition”) as well as a memorandum in support of the Petition. [Docs. 1; 3.] Petitioner alleges he was sentenced on July 24, 2002, in the United States District Court for the Western District of North Carolina at case number 1:01-cr-00052-7 to a term of imprisonment of 360 months followed by 5 years' supervised release. [Docs. 1 at 2; 3 at 1.] Petitioner alleges that his projected release date is December 29, 2024, via Good Conduct Time (“GCT”). [Doc. 3 at 2.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Petitioner's envelope is marked as having been received by the prison mailroom at FCI Edgefield on April 14, 2023. [Doc. 1-1 at 1.]
Petitioner's memorandum was docketed as a motion for leave to file a memorandum of facts and law. [Doc. 3.] The Court will grant Petitioner's motion by separate order and considers the arguments made therein in its evaluation of the Petition in the analysis below.
The Court takes judicial notice of the records in Petitioner's criminal action in the Western District of North Carolina. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
Petitioner contends that “he has earned substantial First Step Act [(‘FSA')] Evidence Based Recidivism Reduction (‘EBRR') Program Credits.” [Id.] However, he contends, the BOP has denied him the right to apply those credits to his sentence due to an Immigration and Customs Enforcement (“ICE”) detainer. [Id.; Doc. 1 at 6.] As such, Petitioner brings this action “to get the detainer removed so [he] can earn [FSA] Time Credits” (“FSA TCs”). [Doc. 1 at 2.]
Petitioner asserts a single ground in his Petition. Specifically, Petitioner contends he is subject to an ICE detainer, “which is stopping [him] from applying [FSA TCs] to [his] release.” [Id. at 6.] For his relief, Petitioner requests to “[h]ave the detainer removed and apply [FSA TCs] to [his] release.” [Id. at 8.]
As to the questions on the Petition regarding his appeals and grievances, Petitioner notes that he has not filed an appeal, grievance, or administrative remedy regarding the claim asserted in this Petition. [Id. at 2.] In his memorandum, Petitioner contends that the administrative remedy process would be futile and he asks the Court to waive the exhaustion requirements. [Doc. 3 at 2.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Furthermore, this Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
Habeas Corpus
Generally
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attack[ing] the computation and execution of the sentence rather than the sentence itself.” U.S. v. Miller, 871 F.2d 488, 490 (4th Cir. 1989); Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). A petition pursuant to § 2241 challenging the execution of a federal prisoner's sentence generally addresses “such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Manigault v. Lamanna, No. 8:06-cv-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.”). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004), and “in the district of confinement rather than in the sentencing court,” Miller, 871 F.2d at 490.
Exhaustion
The execution of sentences and the computation of jail time is an administrative function under the authority of the Attorney General, who has delegated this task to the BOP, including the responsibility for computing time credits and determining a sentence termination date once a defendant actually commences serving his sentence. United States v. Wilson, 503 U.S. 329, 334-35 (1992). Accordingly, the Attorney General, through the BOP, must make the initial determination to award sentence credit for time spent in official detention; a district court does not have the jurisdiction to make an initial determination. U.S. v. Jeter, 161 F.3d 4, at *1 (4th Cir. 1998) (unpublished table decision). As a result, prior to filing a § 2241 habeas petition, a petitioner must exhaust his administrative remedies. McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004). The requirement to exhaust administrative remedies is not waivable. Jeter, 161 F.3d 4, at *2. Further, a petitioner's failure to exhaust administrative remedies is excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445.
The BOP's Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request; Requests must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id.
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 Circuit Court, 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 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 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); Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994).
DISCUSSION
Petitioner's Argument
As noted, Petitioner commenced this action to challenge the BOP's calculation of his sentence, and he asks this Court to order the removal of an ICE detainer so that he can apply his earned FSA TCs to his sentence. Petitioner presents his claim as a challenge to the “constitutionality of the BOP's application of the [FSA]” under BOP Program Statement 5410.01. [Doc. 3 at 2-3.] Specifically, Petitioner contends “the BOP has created administrative law which is unreasonable as well as unconstitutional” by implementing BOP Program Statement 5410.01. [Id.] According to Petitioner, BOP Program Statement 5410.01 exempts a federal prisoner from applying earned FSA TCs if he is subjected to an ICE detainer. [Id. at 3.] Petitioner contends that, but for the ICE detainer policy in BOP Program Statement 5410.01, he would be eligible to apply 365 days of FSA TCs and would be entitled to release from BOP custody. [Id.]
The FSA and BOP Program Statement 5410.01
On December 21, 2018, the FSA became law “and implemented a number of prison and sentencing reforms.” Garrido v. Warden, FCI-Mendota, No. 1:22-cv-00991-SKO-HC, 2023 WL 2587894, at *2 (E.D. Cal. Mar. 21, 2023); see also First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Among other things, the FSA required the BOP to create an incentive system to allow inmates to complete recidivism reduction programs and earn time credits to reduce their sentences. 18 U.S.C. § 3632(d); see Lester v. Knight, No. 2:21-cv-00140-SAL-MGB, 2021 WL 5605593, at *1 (D.S.C. Aug. 2, 2021), Report and Recommendation adopted by 2021 WL 5599350 (D.S.C. Nov. 30, 2021). As one court has summarized,
The [FSA] provides eligible inmates the opportunity to earn 10 or 15 days of time credits for every 30 days of successful participation in [EBRR Programs] and Productive Activities (PAs). The earned credits, known as [FSA TCs], can be applied toward earlier placement in pre-release custody, such as Residential Reentry Centers (RRCs) and home confinement, or toward a term of supervised release.Davis v. Ortiz, No. 21-cv-2174-NLH, 2022 WL 2063340, at *1 (D.N.J. June 8, 2022) (internal quotation marks and citations omitted).
However, the FSA also provides “that certain prisoners are statutorily ineligible to apply earned time credits.” Alatorre v. Derr, No. 22-cv-00516-JMS-WRP, 2023 WL 2599546, at *4 (D. Haw. Mar. 22, 2023). Importantly, under the FSA, inmates who are “the subject of a final order of removal under any provision of the immigration laws” cannot apply FSA TCs. 18 U.S.C. § 3632(d)(4)(E)(i); see also 28 C.F.R. § 523.44(a)(2) (stating that, for any inmate who is “[s]ubject to a final order of removal under immigration laws as defined in 8 U.S.C. 1101(a)(17) (see 18 U.S.C. 3632(d)(4)(E)), the [BOP] may not apply FSA [TCs] toward prerelease custody or early transfer to supervised release”).
In November 2022, the BOP issued Program Statement 5410.01 outlining its procedures to implement the FSA, which provided in relevant part that, although inmates with “detainers may earn FTCs, if otherwise eligible, they will be unable to apply them to prerelease custody or release to supervision unless the . . . detainers are resolved.” BOP Program Statement 5410.01, available at https://www.bop.gov/mobile/policy/ (search by policy number “5410.01”) (last visited Apr. 25, 2023) (emphasis added). Program Statement 5410.01 further stated that “[a]n inmate with an unresolved immigration status will be treated as if he/she has unresolved pending charges with regard to the application of [FSA TCs]” and that up to 365 days of earned time credits would be automatically applied to early release for prisoners who meet six criteria, including having “no detainers or unresolved charges, to include unresolved immigration status.” Id. “Because of these portions of Program Statement 5410.01, prisoners with immigration detainers, even if they were not subject to a final order of removal, could not apply earned time credits.” Alatorre, 2023 WL 2599546, at *4.
However, the provisions of the original BOP Program Statement 5410.01 quoted above “seems to have been inconsistent with the language of the FSA itself, which only precludes those prisoners with final orders of removal from applying earned FSA time credits toward prerelease custody or supervised release; the FSA does not speak to prisoners who are subject only to a detainer.” Bello-Arias v. Warden, FCI Berlin, No. 23-cv-079-SM, 2023 WL 3043271, at *2 (D.N.H. Apr. 21, 2023) (internal quotation marks omitted) (emphasis added). As such, after the BOP issued Program Statement 5410.01, “[f]ederal prisoners subject to immigration detainers began filing habeas petitions challenging these portions of Program Statement 5410.01,” and courts granted habeas relief to federal prisoners subject to such immigration detainers. Alatorre, 2023 WL 2599546, at *4 (collecting cases). “Seemingly recognizing its error, on February 6, 2023, the BOP amended its procedures for implementing the FSA,” Bello-Arias, 2023 WL 3043271, at *2, and issued Change Notice 5410.01 to remove the language in the prior policy that prohibited prisoners subject to ICE detainers from applying FSA TCs, Alatorre, 2023 WL 2599546, at *5. See also Ashemuke v. Jacquez, No. C22-1320-JHC-SKV, 2023 WL 2563180, at *2 (W.D. Wash. Feb. 17, 2023), Report and Recommendation adopted by 2023 WL 2560841 (W.D. Wash. Mar. 17, 2023).
Exhaustion of Administrative Remedies
This action is subject to summary dismissal because Petitioner has not exhausted his administrative remedies and has failed to demonstrate any reason to waive the exhaustion requirement. Although Petitioner concedes he has not exhausted his remedies, he contends the administrative remedy process would be futile and asks the Court to waive the exhaustion requirement. [Docs. 1 at 2; 3 at 2-4.] Petitioner premises his futility argument on the old language of the BOP Program Statement 5410.01. However, Petitioner's reliance on BOP Program Statement 5410.01 is misplaced because, as noted, the language with which Petitioner takes issue has been struck from the Program Statement. As such, Petitioner's exhaustion argument is without merit and his sole ground in this Petition is moot.
Several courts have recently considered this specific issue. One court found that a petitioner's claim in a similar habeas action was moot because the language struck from the Program Statement reflected a broad policy change. See Alatorre, 2023 WL 2599546, at *6. That court noted, “the consequences of the alterations made by Change Notice 5410.01 are unmistakable: an immigration detainer, without more, no longer precludes a federal prisoner from applying earned time credits.” Id. Similarly, another court rejected a petitioner's argument-like Petitioner's argument in the present case-that exhaustion was futile based on the BOP Program Statement, noting the BOP had altered its position:
Petitioner contends that exhaustion is futile since the BOP's position that he is statutorily barred from earning [FSA TCs] is established policy. As previously discussed, the BOP has since altered its position such that he is not statutorily barred from earning [FSA TCs]. Therefore, exhaustion in this case would not be futile. The exhaustion requirement should not be excused in this case.Garrido, 2023 WL 2587894, at *6.
Because Petitioner is challenging the BOP's calculation of his release date via the application of FSA TCs, he must first exhaust his administrative remedies before bringing an action in this Court. Because the BOP altered Program Statement 5410.01, Petitioner's ICE detainer no longer prevents him from applying his FSA TCs to his sentence. As such, this is precisely the type of case which requires a fully developed administrative record so that the Court may evaluate the BOP's calculation of time to be credited to Petitioner's sentence. See Mero v. Phelps, No. 4:20-cv-3615-MGL-TER, 2020 WL 7774378, at *2 (D.S.C. Nov. 2, 2020) (“The BOP should be afforded the opportunity to correct any alleged errors, to develop its factual record, and apply its expertise to the situation.”), Report and Recommendation adopted by 2020 WL 7769784 (D.S.C. Dec. 30, 2020). Therefore, because Petitioner has not exhausted his administrative remedies, the Petition should be dismissed.
Further, Petitioner has not alleged facts to justify a waiver of the exhaustion requirement to the extent this Court could do so. In this case, it is essential for Petitioner to exhaust his administrative remedies so that the BOP can create a record of its determinations regarding the application of any FSA TCs due to Petitioner. At this time, because “there is no record for the Court to review the BOP's analysis and decision” as “the BOP was not permitted the opportunity to consider . . . any sentence calculation issues claimed by Petitioner, the undersigned [concludes] such claim should be dismissed for lack of exhaustion.” Brown v. Tatum, No. 1:16-cv-05307, 2018 WL 1614093, at *4-5 (S.D. W.Va. Feb. 26, 2018), Report and Recommendation adopted by 2018 WL 1611599 (S.D. W.Va. Apr. 2, 2018).
CONCLUSION AND RECOMMENDATION
Accordingly, it is recommended that the § 2241 Petition be DISMISSED without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
Petitioner's attention is directed to the important notice on the next page.
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, Suite 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).