Opinion
C. A 4:23-2535-JFA-TER
07-14-2023
Daquan Pierre, #03773-509, Petitioner, v. Warden Joseph, 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 a federal institution serving time on a federal sentence. For the reasons that follow, the undersigned recommends that the Petition be denied. Further, the Petition is also subject to summary dismissal because Petitioner has not exhausted his administrative remedies with the Bureau of Prisons (BOP) and exhaustion is not futile.
DISCUSSION
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 as Petitioner has failed to state a claim upon which relief could be granted and also due to Petitioner not having exhausted his administrative remedies and exhaustion is not futile.
The Rules Governing Section 2254 Cases are also applicable to Section 2241 cases. See Rule 1(b) of Rules Governing Section 2254 Cases.
Petitioner has filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (ECF Nos. 1, 1-1). Petitioner argues he has accrued/earned 250-290 ETC(earned time credit) days towards early release. (ECF No. 1-1 at 2). Petitioner states the BOP acknowledges 200 of these days, but the BOP states he is ineligible to apply these credits. (ECF No. 1-1 at 2-3). Petitioner acknowledges that BOP has found him “eligible to earn” these types of credit because he does not have an ineligible conviction or a pending deportation/detainer. (ECF No. 1-1 at 3, 11). Petitioner admits the reason he is not being allowed to apply these earned eligible credits is because Petitioner has a high PATTERN score. (ECF No. 1-1 at 11). Petitioner attaches all the documentation regarding his PATTERN score. (ECF No. 1-2 at 1-17). Petitioner argues if the BOP were to “follow the law,” he would be entitled to immediate release. (ECF No. 1-1 at 4). Petitioner's home detention eligibility date is September 9, 2023. (ECF No. 1-2 at 3). As of January 2022, GCT earned and projected was 225 days. (ECF No. 1-2 at 5).
Petitioner was Risk Assignment assessed for First Step Act credit purposes on January 23, 2022, July 20, 2022, January 3, 2023, and March 25, 2023. (ECF No. 1-2 at 7). Every time his PATTERN score was HIGH, with the BOP noting “cannot apply FTC”. (ECF No. 1-2 at 7).
BOP program statement 5400.01 requires reassessment every 180 days.
Petitioner asserts “nowhere in the statute does it say that the BOP has the authority to determine that if an inmate has a medium or high pattern score [the BOP] is not allowed to apply FSA ETCs.” (ECF No. 1-1 at 8). However, Congress was very specific about this in the statute, 18 U.S.C. § 3624(g), titled Prerelease custody or supervised release for risk and needs assessment system participants. Eligible prisoners are defined as “shown through the periodic risk assessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment.” 18 U.S.C. § 3624(g)(1)(B). Petitioner's PATTERN score has always been HIGH. (ECF No. 1-2 at 7). Petitioner cannot show he meets the statutory definition of eligible to apply. Second, even if Petitioner was “prerelease custody,” Petitioner must have been “minimum” or “low” on the last two reassessments of PATTERN score; if “supervised release,” must be determined as minimum or low on last reassessment, which Petitioner has not been. The face of the statute shows Petitioner is ineligible for application of these ETCs due to his PATTERN score.
Next, Petitioner asserts his PATTERN score is high because BOP staff is not updating it properly. (ECF No. 1-1 at 9). Petitioner's attachments belie this. Also the BOP program statement 5400.01 only requires reassessment every 180 days and Petitioner is receiving that.
Statutorily, Petitioner is ineligible for relief here based on the facts of his circumstances. Petitioner estimates his “actual” release date has passed, May 7, 2023. Petitioner argues as to exhaustion that his Petition presents a question of legislative interpretation that cannot be resolved by the BOP. (ECF No. 1 at 4). Petitioner argues he can show cause and prejudice because is injury is a unlawful term of continuous incarceration. However, as discussed above, Petitioner is statutorily ineligible for the application of these credits. Petitioner wants the BOP to immediately apply earned time credits and calculate an early release date. (ECF No. 1 at 9, No. 1-1 at 4). Petitioner argues harm will result due to an allegedly impending release date. Petitioner filed one of the first steps in the administrative exhaustion process, a BP-8, three days before his last RISK assessment. The response was “you are ineligible to apply your FSA time due to having HIGH risk.” (ECF No. 1-2 at 11). An informal prior response was “you must have no 100 or 200 series incident reports within the last three years.” (ECF No. 1-2 at 15). The January PATTERN score details showed Petitioner's violence score is high causing him to score HIGH on the PATTERN score. (ECF No. 1-2 at 17). Petitioner is simply statutorily ineligible under First Step Act until his PATTERN score comes down; even if exhausted, Petitioner would not be immediately eligible for release.
The BOP administrative appeal process is three-tiered. See 28 C.F.R. 542.10. 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 administrative process is exhausted when the General Counsel issues a ruling on the inmate's final appeal. 28 C.F.R. 542.15(a). Petitioner has not followed the applicable steps of an appeal to the General Counsel level pursuant to 28 C.F.R. 542.18. Petitioner has only filed a BP-8. Therefore, Petitioner has not fully exhausted his administrative remedies as he is required to before pursuing habeas relief.
Exhaustion may be excused under certain circumstances, such as by a showing of futility or irreparable injury. The undersigned has not found a reason to waive the BOP exhaustion requirement; as discussed above, statutorily Petitioner's release date has not passed. 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. App'x 621 (4th Cir. 2005) (unpublished).
Petitioner must exhaust all of his administrative remedies with BOP before his § 2241 Petition becomes ripe for review. Thus, the Petition is subject to summary dismissal as it fails to state a claim upon which relief can be granted, and alternatively due to a failure to exhaust.
RECOMMENDATION
Accordingly, it is recommended that the Petition in this case be denied and dismissed without prejudice and without requiring the respondent to file a return.
IT IS SO ORDERED.
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 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).