Opinion
Case No. CIV-19-319-D
06-20-2019
ELOY VENZOR, Petitioner, v. WARDEN, F.C.I., EL RENO, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a federal inmate appearing pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, challenging the Bureau of Prison's (BOP) calculation of his federal sentence. Doc. No. 5. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). Respondent has filed a Motion to Dismiss, Petitioner responded, and Respondent replied. Doc. Nos. 13, 16, 17. For the following reasons, it is recommended that the Motion be granted and the habeas relief requested in the Petition be denied. I. Background
Petitioner is currently incarcerated at the Federal Correctional Institution, El Reno, where he is serving concurrent sentences in two unrelated cases. Petitioner asserts that he has completed serving one of the sentences and, as such, the offense and conviction associated with that sentence should no longer be considered current. The BOP, however, considers the offense and conviction, Possession of a Firearm in Furtherance of Drug Trafficking Crime, to still be current. Doc. No. 5, at 2-3, 4, 6, 8.
Petitioner asserts that he has completed the Residential Drug Abuse Program (RDAP), which completion allows for early release. See 28 C.F.R. § 550.55. However, if an inmate has a current felony conviction for an offense that involved the carrying, possession, or use of a firearm, then the inmate is precluded from early release under the RDAP. See 28 C.F.R. § 550.55(5)(ii). Petitioner contends that he is being denied the benefit of obtaining an early release for completion of the RDAP because the BOP is incorrectly aggregating his concurrent sentences. Doc. No. 5, at 6, 8. II. Legal Standard
A district court is only authorized to issue a writ of habeas corpus when the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). An action brought by a federal prisoner pursuant to 28 U.S.C. § 2241 is one that challenges the execution of a sentence. See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005); McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) ("[A] § 2241 attack on the execution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters[.]"); see also Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) ("A motion pursuant to § 2241 generally . . . [includes] such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions."). III. Analysis
Respondent raises two grounds to support the denial of habeas relief: (1) Petitioner did not exhaust administrative remedies before filing his Petition and (2) federal law precludes the relief Petitioner seeks. Doc. No. 13. Both of Respondent's arguments are valid.
A. Exhaustion
There is no express statutory exhaustion requirement in actions arising under Section 2241. See Holman v. Booker, No. 98-3124, 1998 WL 864018, at *2 (10th Cir. Dec. 14, 1998) ("[Section] 2241 does not contain an explicit exhaustion requirement[.]"). But federal common law requires federal prisoners to exhaust available administrative remedies before they can obtain habeas relief. See, e.g., United States v. Wilson, 503 U.S. 329, 335 (1992) ("Federal regulations have afforded prisoners administrative review of the computation of their credits, and prisoners have been able to seek judicial review of these computations after exhausting their administrative remedies." (internal citations omitted)); Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) ("The exhaustion of available administrative remedies is a prerequisite for § 2241 habeas relief[.]);" Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986) (a federal prisoner challenging a sentence computation by the BOP must exhaust administrative procedures before commencing an action under 28 U.S.C. § 2241).
Respondent incorrectly relies in part on 42 U.S.C. § 1997e(a) (2000). Doc. No. 13, at 7-8. This provision applies to actions involving "prison conditions." See Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) (2000). Section 2241 petitions do not involve "prison conditions," and Section 1997e(a) is inapplicable. See Nguyen v. Booker, 156 F.3d 1244, 1998 WL 568285 (10th Cir. Sept. 3, 1998) ("Petitioner's § 2241 petition does not fall within PLRA's language barring suits challenging prison conditions before administrative remedies have been exhausted." (citing 42 U.S.C. § 1997e(a))); cf. McIntosh, 15 F.3d at 811-12 (Section 2241 proceedings and appeals of those proceedings are not "civil actions" for purposes of the PLRA's amendments to 28 U.S.C. § 1915(a)(2) and (b)).
A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile. E.g., Garza, 596 F.3d at 1203. Petitioner does not assert that attempting to exhaust the administrative remedies would be futile. See Doc. No. 5.
Under "the BOP's administrative remedy protocol, a prisoner must first seek informal redress for his grievance and then he can proceed through the formal administrative appeal process, which includes, in sequence, institutional, regional, and national (central) levels of review. See 28 C.F.R. §§ 542.13-19." Acosta v. Daniels, 589 F. App'x 870, 872 (10th Cir. 2014); accord Garza, 596 F.3d at 1204. Petitioner has explained that his Petition is an attempt to gather information for use in the BOP's administrative remedy process and is forthcoming in stating that he did not exhaust the administrative remedies provided by the BOP. Doc. No. 5, at 2-3; Doc. No. 16, at 1-3. It remains, though, that Petitioner must fulfill the prerequisite of completing the administrative remedy process before he may bring a habeas petition. Because Petitioner has not done so, his Petition should be dismissed.
B. Relief Requested
Respondent also raises the argument that Petitioner is not entitled to the relief sought in the Petition. In the interest of judicial efficiency, the undersigned also addresses this argument.
Petitioner seeks a "clarification" that he has completed serving his sentence for case number 5:17-CR-008-01-C, a term of 18 months imposed upon revocation of his supervised release. Doc. No. 5, at 2, 6. As Petitioner presents the facts, he began serving this 18-month sentence on April 3, 2017, and the sentence was to run concurrently with all other pending state and federal cases. Doc. No. 5, at 6, 13. Petitioner had previously been sentenced to 96 months in case number 5:16-CR-008-01-C, an unrelated case. Doc. No. 5, at 13.
Petitioner was on supervised release after serving sentences for Possession with Intent to Distribute Methamphetamine and Possession of a Firearm in Furtherance of a Drug Trafficking Crime. Doc. No. 5, at 4. --------
As 18 months have passed since Petitioner began serving the sentence in case number 5:17-CR-008-01-C, Petitioner asserts that his sentence has been fully served and the related offense and conviction should no longer be considered current. Doc. No. 5, at 6, 8, 12-13. Petitioner requests the Court to provide confirmation of same. Doc. No. 5, at 6, 8. Petitioner, however, misunderstands aggregation of federal sentences. As Petitioner is aware, multiple federal sentences that run concurrently are aggregated. See Doc. No. 5, at 6; 18 U.S.C. § 3584(c) (federal statute requiring that "[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment."). Aggregated sentences are considered one, single sentence. See Warnick v. Booher, No. 01-CV-031-TCK-PJC, 2007 WL 3308906, at *3 (N.D. Okla., Nov. 5, 2007) (explaining that Oklahoma law follows the same principles governing the administration of sentences imposed on federal prisoners, under which multiple sentences that are aggregated are considered one sentence with multiple parts, and "the sentence will not be discharged until all parts of it are completely served . . ."); Warnick v. Booher, 425 F.3d 842, 849 (10th Cir. 2005) (J. Hartz, concurring) (explaining that under federal statutes, sentences that have been aggregated "are to be treated for sentence-administration purposes as a single sentence"); accord Wold v. Fed. Bureau of Prisons, No. 4:18-CV-04061-VLD, 2018 WL 4906273, at *9 (D.S.D. Oct. 9, 2018) (explaining that once aggregated under 18 U.S.C. § 3584(c), "both sentences are [petitioner's] 'current' sentence"). As a result, though 18 months may have passed since Petitioner began serving the sentence for case number 5:17-CR-008-01-C, the single aggregated sentence has not been fully served. Consequently, all offenses and convictions relating to the single aggregated sentence are considered current offenses and convictions. See Warnick, No. 01-CV-031-TCK-PJC, 2007 WL 3308906, at *3; Wold, 2018 WL 4906273, at *9; 18 U.S.C. § 3584(c). Therefore, Petitioner is not entitled to the habeas relief sought in the Petition.
RECOMMENDATION
Based on the foregoing findings, it is recommended that Respondent's Motion to Dismiss (Doc. #13) be granted and the habeas relief requested in the Petition be denied. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by July 9th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 20th day of June, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE