Opinion
C. A. 9:24-01278-JDA-MHC
06-20-2024
Pablo David Zamora Miranda, Petitioner, v. FCI Bennettsville's Warden, Joseph, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Pablo David Zamora Miranda, also known as Pablo David Zamora-Miranda, was a federal inmate at the time he filed this Petition. Proceeding pro se and in forma pauperis, he seeks habeas corpus relief under 28 U.S.C. § 2241 (§ 2241). Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
I. BACKGROUND
On October 29, 2021, Petitioner was found guilty at a jury trial of the offenses of conspiring to possess with intent to distribute five kilograms or more of cocaine and possessing with intent to distribute five kilograms or more of cocaine. United States v. Zamora-Miranda, No. 8:21-cr-00121-CEH-J S-4 (M.D. Fla.), Dkt. Nos. 128, 131. He was sentenced to terms of 55 months' imprisonment as to each count with the sentences to run concurrently. Dkt. No. 216. On February 1, 2024, Petitioner's motion to reduce sentence was granted and his term of imprisonment was reduced to 41 months' imprisonment nunc pro tunc to the date of the original sentence or time served, whichever was greater. Dkt. No. 264.
Petitioner appears to allege that the Federal Bureau of Prisons (BOP) violated his Fifth Amendment right to due process by refusing to grant what he claims are statutorily mandated Earned Time Credits (ETCs) he is owed under the First Step Act of 2018 (FSA), Pub. L. No. 115391, 132 Stat. 5194 (2018). Petitioner requests that this Court issue an order requiring Respondent and the BOP to “(a) immediately apply all [his FSA] Earned Time Credits to date, to calculate [his] applicable early release date, and (b) thereafter, release [him] on that early release date pursuant to an appropriate early release option...” ECF No. 1 at 9-10.
Petitioner submitted a BOP Sentence Monitoring Computation Data sheet dated February 22, 2024. It was noted that Petitioner's home detention eligibility date was May 14, 2024, and his projected date of release was October 12, 2024. The sheet contains an acknowledgement that an order was received granting a sentence reduction from 55 months to 41 months, or time served (whichever was greater), effective February 15, 2024. Additionally, the sheet contains a notation that “per ICE [Immigrations and Customs Enforcement] Mr. Windsor, a Final Order was placed on 02-15-2024.” ECF No. 1-3 at 6.
On March 15, 2024, this Court received what appeared to be a discovery request directed to Respondent. The Clerk of Court mailed the materials back to Petitioner, but the envelope was returned from FCI-Bennettsville (where Petitioner was incarcerated at the time he filed his Petition) on April 9, 2024, with a notation of “individual no longer at this address[.]” ECF No. 4. Records from the BOP indicate that Petitioner was released from BOP custody on April 22, 2024. See https://www.bop.gov/inmateloc/ [search name Pablo Zamora-Miranda] (last visited June 18, 2024).
II. STANDARD OF REVIEW
A pro se habeas petition is reviewed pursuant to the procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996; and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); and Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983). The Court is charged with screening Petitioner's lawsuit to determine “[i]f 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.
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
It is recommended that this Petition be summarily dismissed for the reasons discussed below.
A. The Petition is Moot
Article III, Section 2 of the United States Constitution provides that federal courts may adjudicate only live cases or controversies. See Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990); Nakell v. Attorney General of North Carolina, 15 F.3d 319, 322 (4th Cir.), cert. denied, 513 U.S. 866 (1994). This means that the “litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Id. In the context of a habeas corpus proceeding, the writ “does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973). Article III requires that an “actual controversy persist throughout all stages of litigation.” Hollingsworth v. Perry, 570 U.S. 693 (2013) (internal quotations and citation omitted).
In this case, because Petitioner has been released from Respondent's custody, Respondent can no longer provide the requested relief. Consequently, the Court can no longer consider the Petition under Section 2241. See, e.g., Figuero Chiquito v. Rokosky, No. CV 1:23-00080, 2023 WL 5736990, *2 (S.D. W.Va. May 17, 2023), report and recommendation adopted sub nom. Chiquito v. Rokosky, 2023 WL 5733858 (S.D. W.Va. Sept. 5, 2023) (dismissing § 2241 petition as moot because the BOP awarded the petitioner his requested days of FSA credit such that his claims were rendered moot by his receipt of the requested relief and absence of collateral consequences); Richardson v. Warden Bennettsville FCI, No. 4:21-CV-03230-JD-TER, 2022 WL 1184038 (D.S.C. Apr. 21, 2022) (Petitioner's claim that the BOP should place him on home confinement pursuant to the provisions to the FSA's provisions concerning elderly release were moot because Petitioner has been released from custody); Alexander v. Healy, No. 4:23-CV-02384, 2024 WL 2020281 (N.D. Ohio May 7, 2024) (denying as moot and dismissing § 2241 petition of deportable inmate who claimed he was entitled to ETCs under the FSA because he was released from BOP custody after he filed his petition and was instead being held by ICE).
There are two possible exceptions to the mootness doctrine: (1) “‘collateral consequences;' and (2) [matters] ‘capable of repetition, yet evading review.'” Leonard v. Hammond, 804 F.2d 838, 842 (4th Cir. 1986) (quoting Carafas v. LaVallee, 391 U.S. 234, 237 (1968)). A collateral consequence is “some concrete and continuing injury other than the now-ended incarceration ....” Spencer v. Kemna, 523 U.S. 1, 7 (1998). Petitioner has alleged no facts as to any collateral consequences, only that he did not receive his ETCs. Moreover, a petitioner cannot meet his burden to show that a wrongful detention is “capable of repetition” by the mere possibility that he may be returned to custody one day. See Incumaa v. Ozmint, 507 F.3d 281, 288-89 (4th Cir. 2007).
B. Failure to Exhaust Administrative Remedies
Alternatively, even if Petitioner could show that his Petition is not moot, this action is subject to summary dismissal because Petitioner failed to exhaust his administrative remedies prior to filing this action. 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, 410 U.S. at 490-91(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, 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) (unpublished table decision), 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 v. Shearin, 90 Fed.Appx. 444, 445 (citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634-35 (2d Cir. 2001)).
Petitioner admits he has not exhausted his administrative remedies, but he argues that exhaustion is futile because he believes “the question presented here is a matter of legislative interpretation which the BOP cannot resolve.” ECF No. 1 at 6. However, Petitioner's belief that the BOP will interpret something in an unfavorable manner does not show that the administrative process is futile. Petitioner appears to assert that he is being denied ETCs based on his status as a deportable alien, which he claims is incorrect because a final order of removal had not been served on him at that time. However, Petitioner has not alleged facts to indicate that the BOP's decision was not subject to challenge through the administrative review process. See, e.g., Valencia v. Holzapfel, No. 5:23-HC-2116-FL-RJ, 2024 WL 923200 (E.D. N.C. Mar. 4, 2024) (denying § 2241 petition alleging BOP denial of FSA credits based on the petitioner's status as a deportable alien, finding that the petitioner failed to exhaust his administrative remedies and noting he had not established that the BOP would not consider his claim for application of the time credits or shown that the administrative remedy program was otherwise unavailable to him).
The BOP administrative appeal process is three-tiered. It is exhausted when the General Counsel issues a ruling on the inmate's final appeal. See 28 C.F.R. §§ 542.10 to 542.15. Petitioner filed a request for administrative remedy (BP-9) on February 27, 2024, and appears to have mailed his Petition (on March 13, 2024) prior to receiving a response to his request (and less than the allowed 20 calendar days in which a response from the Warden should be madesee 28 C.F.R. § 542.18). There is no indication that he filed an administrative remedy appeal (BP-10) or a final administrative appeal. ECF Nos. 1 at 6, 10; 1-7 at 3.
IV. RECOMMENDATION
Accordingly, it is RECOMMENDED that the Petition in this action be DISMISSED without prejudice and without requiring Respondent to file a return.
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
Post Office Box 835
Charleston, South Carolina 29402
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).