Opinion
2:22-cv-00513
02-28-2023
WILLIAM T. MORRISON, JR. REG. # 19480-045 v. WARDEN MA'AT
SECTION P
JAMES D. CAIN, JR. JUDGE
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by pro se petitioner William T. Morrison on February 15, 2022. Doc. 1. Morrison is an inmate in the custody of the Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional Center at Oakdale, Louisiana (“FCIO”). This matter has been referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of this Court. For the following reasons:
IT IS RECOMMEDED that the petition be DENIED and DISMISSED WITHOUT PREJUDICE.
I.
Background
Morrison is currently serving a sentence imposed on August 25, 2009, by the United States District Court for the District of Kansas. Doc. 1, p. 1, ¶ 4. He contends that the Respondent refuses to credit him with approximately 280 days of First Step Act credit. Id. at p. 2, ¶ 6.
II.
Law & Analysis
A. Screening of Habeas Corpus Petitions
A district court may apply any or all of the rules governing habeas petitions filed under 28 U.S.C. § 2254 to those filed under § 2241. See Rule 1(b), Rules Governing § 2254 Cases in the United States District Courts. Rule 4 of the Rules Governing § 2254 Cases authorizes preliminary review of such petitions, and states that they must be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Id. at Rule 4. To avoid summary dismissal under Rule 4, the petition must contain factual allegations pointing to a “real possibility of constitutional error.” Id. at Rule 4, advisory committee note (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly, we review the pleadings and exhibits before us to determine whether any right to relief is indicated, or whether the petition must be dismissed.
B. Application -- Exhaustion
A § 2241 petition on behalf of a sentenced prisoner “attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). In order to prevail, a § 2241 petitioner must show that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
Under 18 U.S.C. § 3585(b), the authority to grant or deny credit for time served is specifically reserved to the United States Attorney General and delegated to the Bureau of Prisons. United States v. Wilson, 112 S.Ct. 1351, 1353-54 (1992); see also United States v. Jack, 566 Fed. App'x 331, 332 (5th Cir. 2014). The federal sentencing court thus has no authority to designate or calculate credit for time spent in jail prior to the commencement of a federal sentence. See, e.g., Wilson, 112 S.Ct. at 1353-54. A district court may review a challenge to the BOP's refusal to grant credit for time served or make a nunc pro tunc designation through a § 2241 petition, but only after the BOP has made a final decision on same. See Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010).
Exceptions to the exhaustion requirement apply only in extraordinary circumstances, and a § 2241 petition should be dismissed without prejudice when the petitioner fails to exhaust his administrative remedies. Castano v. Everhart, 235 Fed. App'x 206, 207-08 (5th Cir. 2007); see also Pierce, 614 F.3d at 160 (district court did not have jurisdiction to rule on § 2241 petition before BOP had made determination of petitioner's sentencing credit). Exhaustion means “proper exhaustion,” including compliance with all administrative deadlines and procedures. Woodford v. Ngo, 126 S.Ct. 2378, 2385 (2006).
The Supreme Court holds that failure to exhaust must be pleaded as an affirmative defense under the Prison Litigation Reform Act (“PLRA”). Jones v. Bock, 127 S.Ct. 910 (2007). However, the PLRA does not apply to federal habeas proceedings and nothing in Jones prohibits the sua sponte dismissal of a § 2241 petition of exhaustion grounds. See, e.g., Callahan v. Young, 2013 WL 3346842 at *2 n. 2 (W.D. La. Jul. 2, 2013); accord Wy v. Berkebile, 2008 WL 5262711 at *2 n. 2 (N.D. Tex. Dec. 17, 2008) (citing Korobov v. Angeli, 2008 WL 2787874 at *1 (M.D. Pa. Jul. 17, 2008)).
The BOP, which administers the prison in which petitioner is incarcerated, has a four-step process for resolving complaints by prisoners. Initially, a prisoner must attempt to informally resolve the complaint with staff. 28 C.F.R. § 542.13(a). If informal attempts are unsuccessful, the prisoner must submit a Request for Administrative Remedy to the Warden. 28 C.F.R. § 542.14. If the prisoner is not satisfied with the Warden's response, he may appeal to the Regional Director. 28 C.F.R. 542.15. If still unsatisfied, the prisoner may appeal to the Office of General Counsel. Id.
The Attorney General has vested the BOP with authority to determine issues related to the manner in which sentences are to be carried out, including the calculation of sentence credits. 28 C.F.R. § 0.96. If the BOP miscalculated petitioner's sentence calculation or release date, it has the authority to correct that error and should be permitted to do so. See Smith v. Thompson, 937 F.2d 217, 219 (5th Cir. 1991) (agency should be given opportunity to correct its own error before aggrieved party seeks judicial intervention).
Petitioner has conceded that he has failed to exhaust his claims but explains that it was due to the fact that the Administrative Remedy Coordinator at FCIO refused to process his BP-8 and BP-9. Doc. 1, p. 7, ¶ 14. However, even if Petitioner did not receive timely responses to his administrative remedy submissions, such would not have prevented him from fully exhausting his administrative remedies. Pursuant to 28 C.F.R. § 542.18, if an inmate does not receive a response, he may consider the absence of a response to be a denial at that level. See Buckley v. Pearsons, 2011 U.S. Dist. LEXIS 80420, 2011 WL 3022539, at *2 (S.D.Miss. May 25, 2011).
Additionally, the fact that it takes time to exhaust administrative remedies does not excuse Petitioner from completing the process. The United States Supreme Court has held that even inmates who may be entitled to immediate release must exhaust their administrative remedies. Preiser v. Rodriguez, 93 S.Ct. 1827, 1838 (1973). The Supreme Court also noted that while exhaustion of remedies may take time, "there is no reason to assume that . . . prison administrators . . . will not act expeditiously." Id. "Furthermore, the fact that petitioner merely believes his appeals would be denied or not responded to is not sufficient to establish the extraordinary circumstances required to excuse exhaustion." Mercado-Pedroza v. Warden, 2018 WL 1310008, *3 (E.D. Tex. Feb. 13, 2018).
III.
Conclusion
For the reasons stated above, IT IS RECOMMENDED that the instant petition be DENIED and DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days from receipt of this Report and Recommendation to file written objections with the Clerk of Court. Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days of receipt shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1429-30 (5th Cir. 1996).