Opinion
C. A. 5:23-3101-HMH-KDW
06-05-2024
Daniel Pacheco-Morales, Petitioner, v. Warden Janson, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Daniel Pacheco-Morales (“Petitioner”), proceeding pro se, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is a federal prisoner at the Federal Correctional Institution in Edgefield, South Carolina, a facility of the federal Bureau of Prisons (“BOP”). This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Motion to Dismiss, or in the alternative, Motion for Summary Judgment. ECF No. 23.Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 24. On November 9, 2023, Petitioner filed a Response in Opposition to Respondent's Motion to Dismiss and/or Motion for Summary Judgment. ECF No. 28.
Because the court has considered matters outside of the pleadings, the undersigned considers the motion as one for summary judgment. The Roseboro order issued to Petitioner contained an explanation of the summary judgment procedures.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's Motion for Summary Judgment.
I. Factual and Procedural Background
On April 6, 2015, Petitioner entered a guilty plea to Conspiracy to Distribute and Possess With Intent to Distribute Cocaine and Heroin (Count 1) and Distribution and Possession With Intent to Distribute Cocaine and Heroin (Count 2). See United States v. Pacheco-Morales, C/A No.: 1:12-cr-00310-YK-7 (M.D. Pa. May 6, 2016), ECF No. 459. On May 6, 2016, the district court sentenced Petitioner to 180 months imprisonment on Counts 1 and 2 to be served concurrently. Id., ECF No. 560. Petitioner's current projected release date, via First Step Act Release, is February 7, 2025. ECF No. 23-1 at 2.
Petitioner filed the instant Petition seeking to be released on home confinement. ECF No. 1. Petitioner states he sent a request to the Warden of FCI Edgefield on May 1, 2021, requesting that he be considered for home confinement per policy statement 7320.01 as it relates to the CARES Act. ECF No. 1-1 at 1. Petitioner claims as of the date of the filing of his Petition, he has not received a response to his request. Id. Petitioner asks the court to order the BOP to review his request for home confinement and/or order his immediate release to home confinement. Id.
II. Discussion
A. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56.
B. Analysis
Respondent contends the instant petition should be dismissed because Petitioner failed to exhaust his administrative remedies prior to filing his petition and therefore his claims are not ripe for review. ECF No. 23 at 4.
In his Response in Opposition, Petitioner contends Respondent's exhaustion argument should be rejected noting the core of his argument is that the administration at Edgefield is unresponsive to requests and complaints. ECF No. 28 at 2.
A federal petitioner is required to fully exhaust his administrative remedies within the BOP before submitting a § 2241 petition. Although § 2241 does not contain a statutory exhaustion requirement, courts consistently require 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 28 U.S.C. § 2241 matter); McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions.”). This requirement of exhaustion allows prison officials to develop a factual record and “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).
In support of his summary judgment motion, Respondent submits an affidavit from J. Carter, paralegal specialist for the South Carolina Consolidated Legal Center at FCI Edgefield, South Carolina. ECF No. 23-1 at 1. Carter attests Petitioner filed an administrative remedy concerning a request to be placed on home confinement under the Cares Act on August 5, 2022. ECF No. 23-1 at 2; SENTRY Administrative Remedy Generalized Retrieval, ECF No. 23-1 at 19. Carter states the remedy was rejected on August 8, 2022, for attaching too many continuation pages and for either not submitting or attempting informal resolution. Id. Carter attests Petitioner was advised to resubmit his appeal with the corrections within 5 days, and Petitioner did not further pursue the administrative remedy. Id. A SENTRY Administrative Remedy Generalized Retrieval printout shows Petitioner has filed one additional administrative remedy since that time that is unrelated to his August 5 remedy. ECF No. 23-1 at 20.
The exhaustion of § 2241 habeas petitions filed by a federal prisoner is governed by 28 C.F.R. § 542.10 et. seq. The BOP has a three-tiered formal administrative grievance process, in addition to an informal resolution process. See 28 C.F.R. §§ 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. 28 C.F.R. § 542.13. If the matter is not resolved informally, the inmate may file a formal written complaint to the warden within 20 calendar days after the date upon which the basis for the request occurred. 28 C.F.R. § 542.14. The matter will be investigated, and a written response provided to the inmate. Id. If dissatisfied with the response, the inmate may appeal to the Regional Director within 20 days of the date of the Warden's response. 28 C.F.R. § 542.15(a). If dissatisfied with the regional response, the inmate may appeal to the General Counsel within 30 days of the Regional Director's response. Id. Appeal to the General Counsel is the final level of agency review. 28 C.F.R. § 542.15(a).
Although Petitioner generally claims the BOP administration fails to respond to complaints and requests, Petitioner does not address or challenge Respondent's assertion that Petitioner failed to file any response after his initial administrative remedy was rejected. Even if the court were to accept Petitioner's allegations that the warden failed to respond to his initial grievance as true, the undersigned finds this fact does not excuse Petitioner's failure to complete the administrative remedy process. The administrative remedy program explicitly provides that “[i]f the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.” 28 C.F.R. § 542.18. If Petitioner did not receive a response to his written complaint to the warden, he was entitled to consider it denied and continue to pursue his remedies. Petitioner does not allege any facts to show he continued with the administrative remedy process after his initial filing. Further, Respondent submits undisputed evidence that Petitioner never properly submitted a remedy at the institutional level.
Petitioner is correct that his failure to exhaust his administrative remedies may be excused by showing futility, see United States v. Strickland, No. 7:98-CR-82-5-F(1), 2004 WL 3414644, at *1 (E.D. N.C. Aug. 9, 2004), aff'd, 126 Fed.Appx. 116, 117 (4th Cir. 2005). However, Petitioner has failed to allege any facts to support his futility claim. The undersigned finds Petitioner failed to fully exhaust his administrative remedies prior to filing his instant Petition, and therefore, recommends Respondent's Motion for Summary Judgment be granted.
III. Conclusion
For the foregoing reasons, the undersigned recommends the court grant Respondent's Motion for Summary Judgment, ECF No. 23, deny the Petition for writ of habeas corpus, and dismiss the Petition without prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 2317
Florence, South Carolina 29503
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).