Opinion
C/A No.: 5:20-1278-JMC-KDW
04-16-2020
Andre Willis, #43961-019, Petitioner, v. Warden Phelts, Respondent.
REPORT AND RECOMMENDATION
Andre Willis ("Petitioner"), proceeding pro se, is incarcerated at the Federal Correctional Institution in Edgefield, South Carolina, a facility of the federal Bureau of Prisons ("BOP"). He filed the instant Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 alleging he is being denied additional good conduct time pursuant to the First Step Act 2018. ECF No. 1. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the Petition in this case without requiring the respondent to file an answer. I. Background
Petitioner states he was convicted of conspiracy to possess with intent to distribute cocaine in the United States District Court for the Northern District of Texas, and on October 19, 2009, he was sentenced to 120 months imprisonment and five years of supervised release. ECF No. 2 at 3. Petitioner says he was released from incarceration on September 22, 2015, and began the supervised release portion of his sentence. Id. Petitioner contends his supervised release was revoked on December 19, 2019, and he was sentenced to six months. Id. II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a pleading filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se pleading, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
Petitioner is required to exhaust his administrative remedies within the BOP before submitting a § 2241 petition in this case. 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 F. App'x 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). Exhaustion of administrative remedies may be excused under certain circumstances, such as by showing futility. United States v. Strickland, No. 7:98-CR-82-5-F(l), 2004 WL 3414644, at *1 (E.D.N.C. Aug. 9, 2004), aff'd, 126 F. App'x 116, 117 (4th Cir. 2005).
Petitioner concedes he did not exhaust his administrative remedies, but he argues it is futile for him to try to exhaust his administrative remedies because he does not have enough time to complete the process. ECF No. 1 at 2-4. The undersigned finds Petitioner's argument is insufficient to excuse his lack of exhaustion. See, e.g., Yannucci v. Stansberry, Action No. 2:08CV561, 2009 WL 2421546, *3 (E.D. Va. Jul. 28, 2009) (finding inmate's claim that "he ran out of time to complete the administrative exhaustion process prior to filing his petition is not a sufficient excuse for failing to exhaust his claims"); Mayberry v. Pettiford, 74 F. App'x. 299 (5th Cir. 2003) (finding "complaints regarding the length of the administrative appeals process . . . particularly unpersuasive" and affirming dismissal of 2241 petition for failure to exhaust). Accordingly, the undersigned recommends Petitioner's § 2241 Petition be summarily dismissed. II. Conclusion and Recommendation
It also appears that Petitioner is not entitled to relief on the merits of his claim. Petitioner contends his good-time credit should apply to his original sentence imposed on October 19, 2009, arguing the six-month revocation sentence is a continuation of his original sentence. ECF No. 1 at 6-7. However, Petitioner's six-month revocation sentence is separate from Petitioner's original sentence for the purpose of calculating good-time credit. See Stelluto v. Wendt, No. Civ. A. 105CV31, 2005 WL 3277661, at *3 (N.D. W. Va. Nov. 30, 2005) (declining to aggregate petitioner's initial sentence and revocation sentence for purposes of calculating good-conduct time). See also Boniface v. Carlson, 881 F.2d 669, 671-72 (9th Cir. 1989) (stating "[t]he courts have uniformly accepted the Commission's conclusion and have held that good time, both statutory and extra or industrial good time, earned during the original incarceration does not survive a parole release and cannot be credited upon a parole violator's sentence."). Because Petitioner is serving a six-month sentence, and good time credit does not apply to federal sentences of one year or less, the undersigned finds Petitioner would not be entitled to habeas relief. See 18 U.S.C. § 3624(b)(1).
For the foregoing reasons, the undersigned recommends the district judge dismiss the Petition in the above-captioned matter without prejudice. If the court accepts this recommendation, Petitioner's Emergency Motion to Expediate Proceedings, ECF No. 2, will be rendered moot.
IT IS SO RECOMMENDED. April 16, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
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).