Opinion
C/A 4:23-5920-MGL-TER
01-18-2024
Venancio Reza, #29569-057, Petitioner, v. M. 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. The Petition is 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 not 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 filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (ECF Nos. 1, 17). Petitioner is challenging “how your sentence is being carried out, calculated, or credited by prison or parole authorities(for example, revocation or calculation of good time credits)” and “other(First step act credits awarded and second chance act placement).” (ECF No. 1 at 2). Petitioner indicates he filed a first step/informal and BP-8 in 2023 and he received no response. Petitioner did not file any further steps. Petitioner alleges understaffing causes responses not to be timely. Petitioner alleges “due process is broken.” (ECF No. 1 at 4). Petitioner alleges BOP will not add 365 days to his projected release date even though it had been earned. (ECF No. 1 at 7). Petitioner alleges his RRC date has not been changed and he has completed programs. (ECF No. 1 at 7). Petitioner alleges he cannot proceed to the next level of exhaustion. (ECF No. 1 at 7). Petitioner's request for relief is apply 365 days to RRC date, “get 9-12 months halfway house, 6 months home confinement immediately”. (ECF No. 1 at 8). In December 2023, Petitioner submitted a supplement to the Petition that included the BP-8 response, his BOP sentence computation sheet, his FSA Time Credit Assessment, and his PATTERN score/FSA Recidivism Risk Assessment. (ECF No. 17). Petitioner's filings show the BOP shows Petitioner earned 365 days towards release but the BOP states he is ineligible to apply these credits. (ECF No. 17 at 7).
Petitioner asserts the warden told him to go to the courts and that the “remedy process was taken and exhausted” when that happened. (ECF No. 17 at 1). Petitioner asserts he cannot proceed to the next level when no documents have been returned. (ECF No. 1 at 7). Petitioner asserts he did not receive a response to his BP-8. (ECF No. 1 at 2). However, Petitioner attached the April 2023 response to the BP-8, where the BOP stated Petitioner's Risk Assessment Level was high and in order to apply earned credit, Petitioner had to have clear conduct(no 100/200 series incidents) for three years. (ECF No. 17 at 12-13).
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. Petitioner even attached information about how the administrative process works, including that if a response is not returned within the allotted time period, petitioner should assume the request has been denied and proceed to appeal the assumed denial. Petitioner did not do this. 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. Petitioner attempts to allege cause and prejudice because his injury is an alleged, unlawful term of continuous incarceration. Petitioner filed one of the first steps in the administrative exhaustion process, a BP-8, and received a response in regard to his PATTERN scores and that he must have no 100 or 200 series incident reports in the last three years. Petitioner does not assert that his actual release date has passed, estimating that if 365 days were applied, April 2024 would be the date, but Petitioner asserts if combined with RRC, he would have been released to home confinement or a halfway house by now, not taking into consideration the statutory requirements of PATTERN scores for those prerelease options. (ECF No. 17 at 4). The undersigned has not found a reason to waive the BOP exhaustion requirement; 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).
It appears Petitioner is statutorily ineligible for the application of these credits; even if exhausted, Petitioner would not be immediately eligible for release. See 18 U.S.C. § 3624(g)(1)(B). Petitioner cannot show he meets the statutory definition of eligible due to his PATTERN score. Even if Petitioner was “prerelease custody,” Petitioner must have been “minimum” or “low” on the last two reassessments of PATTERN score; if “supervised release,” he must be determined as minimum or low on last reassessment, which Petitioner has not been. (ECF No. 17 at 5,7,8). See also Pierre v. Joseph, No. 4:23-CV-2535-JFA, 2023 WL 5319778, at *2 (D.S.C. Aug. 18, 2023)(“he does not meet the statutory mandates which require him to maintain a minimum or low recidivism risk”). Plaintiff's assertions that exhaustion is futile because he should be released is unsupported.
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 due to a failure to exhaust and exhaustion is not futile.
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.
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).