Opinion
3:00-CV-2673-D.
March 14, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the district court in implementation thereof, the subject cause has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a federal inmate pursuant to 28 U.S.C. § 2241.
Parties: Petitioner is presently incarcerated at the Cedar Hill Unit in Big Spring, Texas. He is represented by retained counsel. Respondent is the Bureau of Prisons. No process has been issued to Respondent in this case.
Statement of Case: Petitioner is presently serving a sixty-month sentence for conspiracy to commit arson imposed on May 2, 1997, in United States v. Herrera Rangel, 3:96-CR-175-D(02) (N.D. Tex., Dallas Division). In this petition for a writ of habeas corpus, he is seeking credit for time served prior to the imposition of his federal sentence.
Findings and Conclusions: 18 U.S.C. § 3585 provides: "A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences. . . ." 18 U.S.C. § 3585(b). Effective November 1, 1987, this statute replaced § 3568, which stated: "The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." 18 U.S.C. § 3568. Section 3585 applies to Petitioner because his offense occurred after November 1, 1987.United States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992).
Although the new statute does not refer to the Attorney General, a petitioner must exhaust his administrative remedies before seeking judicial review. See United States v. Wilson, 503 U.S. 329, 335, 112 S.Ct. 1351, 1355, 117 L.Ed.2d 593 (1992) (prisoners may seek administrative review of the computations of their credit, see 28 C.F.R. § 542.10-542.16 (1990), and, once they have exhausted their administrative remedies, they may pursue judicial review of these computations); United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992). The petition in this case is silent as to whether Petitioner has exhausted his administrative remedies. In order to permit Petitioner to show whether he has exhausted his administrative remedies, the magistrate judge issued an order on January 29, 2001, requesting him to show cause within thirty days, of the date of filing of the order, why his petition should not be dismissed for failure to exhaust administrative remedies. As of the date of this recommendation, Petitioner has neither responded to the show cause order nor requested an extension of time to file his response. Therefore, the petition should be dismissed without prejudice for failure to exhaust administrative remedies.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be dismissed without prejudice for failure to exhaust administrative remedies. A copy of this recommendation will be mailed to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.