Opinion
C. A. 4:23-2216-JD-TER
05-31-2023
Petit Pierre, #72191-004, Petitioner, v. Warden Janson, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
Petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. 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 is authorized to review such petitions for relief and submit findings and recommendations to the District Court. Petitioner is an inmate at FCI Edgefield; Petitioner does not answer the Petition's question regarding where he was sentenced. (ECF No. 1). The Petition is subject to dismissal because Petitioner has not exhausted his administrative remedies with the Bureau of Prisons (BOP) and exhaustion is not futile.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. 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 currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
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. Following the required initial review, it is recommended that the Petition should be summarily dismissed due to Petitioner not having exhausted his administrative remedies.
The Rules Governing Section 2254 Cases are also applicable to Section 2241 cases. See Rule 1(b) of Rules Governing Section 2254 Cases.
DISCUSSION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, contesting “how [his] sentence is being carried out, calculated, or credited by prison or parole authorities (for example, revocation or calculation of good time credits),” “immigration detention,” and “detainer.” (ECF No. 1 at 2). Petitioner alleges he has not commenced the administrative appeal process. (ECF No. 1 at 2, 8). Petitioner alleges the administrative exhaustion process is “inadequate.” (ECF No. 1 at 8). Petitioner alleges he has been denied First Step Act credits “because he has a final order of deportation.” (ECF No. 1 at 3). The remainder of the Petitioner's allegations involve exhaustion and not the Petition's grounds. (ECF No. 1). Petitioner asserts the inadequacy of the administrative process is supported by an attached affidavit from a fellow prisoner. (ECF No. 1 at 5). The affidavit is from Ricky Denton, who swears the administrative process is “inadequate” and staff are hostile, forms are misplaced or thrown away, requests are often denied, and there are no Spanish speaking case workers. (ECF No. 1-1). A similar affidavit from Denton was included in objections in a similar § 2241 action. Garcia v. Janson, No. 8:23-CV-1619-JFA-JDA, 2023 WL 3559697 (D.S.C. May 19, 2023). That case found that those assertions in the affidavit were “insufficient to overcome the requirement that Petitioner exhaust his administrative remedies.” Id. A court may excuse a failure to exhaust only upon a showing of cause and prejudice; baseless assertions from a fellow inmate are insufficient to show prejudice to Petitioner. Id. “Petitioner has not shown that he has even attempted to initiate a grievance process, let alone encountered an instance of prejudice.” Id. Further, as to the language barrier alleged, Petitioner and others using the “Ricky Denton affidavit” have been filing in this court and could do the same in the administrative remedy process. Also, as to the administrative remedy allegation that FCI-Edgefield case managers have not been trained in the First Step Act and regularly deny grievances- that the alleged expectation is that Petitioner will be denied, such allegations are a reason why the process is multitiered going beyond the institutional levels, the next step after the institution is the regional office and the general counsel.
The statute and regulation applicable here state that the BOP may not apply the FSA earned time credits of prisoners who are subject to “final orders of removal.” 28 C.F.R. § 523.44(a)(2)(“Subject 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 Bureau may not apply FSA Time Credits toward prerelease custody or early transfer to supervised release.”); 18 U.S.C. § 3632(d)(4)(E)(i) (prisoner who “is the subject of a final order of removal” cannot apply any FSA time credits toward prerelease custody or early transfer to supervised release).
Several courts have recently dealt with this specific issue. In Garrido v. Warden, FCI-Mendota, 2023 WL 2587894, at *5 (E.D. Cal. Mar. 21, 2023)(finding no case or controversy due to BOP Change Notice), the petitioner there also argued exhaustion was futile and that court found exhaustion was not futile because the BOP had altered its position via a change notice to Program Statement 5410.01. Id.; Alatorre v. Derr, 2023 WL 2599546, at *1, 5 (D. Haw. Mar. 22, 2023); see also Portillo v. Janson, No. 4:23-cv-1402-BHH; Rivera v. Janson, No. 4:23-cv-1609-TMC(recommending same result under similar facts); Cruz v. Janson, No. 4:23-cv-1758-MGL. Thus, exhaustion is not futile.
Petitioner's Petition is subject to summary dismissal for failure to exhaust his administrative remedies. In order for this court to consider a habeas action under § 2241, Petitioner is required to have fully exhausted his administrative remedies. See Timms v. Johns, 627 F.3d 525, 530-32 (4th Cir. 2010); see also Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)(mandatory exhaustion unlike § 1983 actions). The BOP administrative appeal process is three-tiered. See 28 C.F.R. § 542.10. The administrative process is exhausted when the General Counsel issues a ruling on the inmate's final appeal. 28 C.F.R. § 542.15(a). An inmate may first seek to informally resolve the complaint at the institution level. 28 C.F.R. § 542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint (Administrative Remedy Request - on a BP -9 form) to the Warden. 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, within 20 days of the response, the inmate may appeal (on a BP-10 form) to the Regional Director. 28 C.F.R. § 542.15(a). If dissatisfied with the regional response, within 30 days of the response, the inmate may appeal (on a BP-11 form) to the General Counsel. Id. Appeal to the General Counsel (Central Office) is the final level of agency review. 28 C.F.R. § 542.15(a). A claim has not been administratively exhausted until it has been filed with the General Counsel. “Where a petition for writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241, the exhaustion of administrative remedies is jurisdictional.” Hicks v. Jordan, 165 Fed.Appx. 797, 798 (11th Cir. 2006); see Timms, 627 F.3d at 533.
The BOP should be afforded the opportunity to correct any alleged errors, to develop its factual record, and apply its expertise to the situation. See Moscato v. Fed. B.O.P., 98 F.3d 757, 761 (3d Cir.1996), cited with approval by Watkins v. Compton, 126 Fed.Appx. 621 (4th Cir. 2005) (unpublished). Petitioner must exhaust his administrative remedies with BOP before his § 2241 Petition becomes ripe for review.
Thus, the Petition is subject to summary dismissal due to a failure to exhaust.
RECOMMENDATION
Accordingly, it is recommended that the Petition in this case be dismissed without prejudice and without requiring the respondent to file a return.
IT IS SO ORDERED.
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).