Opinion
3:19-cv-01552-JE
11-18-2020
NATHANIEL YANCEY, Petitioner, v. JOSIAS SALAZAR, Respondent.
Stephen R. Sady Assistant Federal Public Defender Attorney for Petitioner Billy J. Williams United States Attorney Alison Milne, Assistant United States Attorney Attorneys for Respondent
Stephen R. Sady Assistant Federal Public Defender Attorney for Petitioner
Billy J. Williams United States Attorney Alison Milne, Assistant United States Attorney Attorneys for Respondent
FINDINGS AND RECOMMENDATION
JOHN JELDERKS UNITED STATES MAGISTRATE JUDGE
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2241 challenging the calculation of his federal sentence. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be denied.
BACKGROUND
On June 6, 2007, the Northern District of California sentenced Petitioner to a 72-month prison term for being a felon in possession of a firearm. On January 26, 2012, authorities released him from this sentence to a 36-month term of supervised release but, on June 21, 2012, police officers in Contra Costa County arrested Petitioner for violating the conditions of his supervised release. Five days later, Contra Costa County authorities relinquished Petitioner to the custody of the U.S. Marshals, and the Northern District of California released Petitioner on bond on July 9, 2012.
On July 17, 2012, the Northern District of California sentenced Petitioner to an 18-day prison term for violating the terms of his supervised release. However, by the time of Petitioner's release on bond on July 9, he had already served 19 days in custody and therefore did not return to federal custody following sentencing.
On October 17, 2012 Contra Costa County authorities arrested Petitioner on state charges that were later dismissed. On October 22, 2012, state officials released Petitioner to the custody of the U.S. Marshals due to violations of the conditions of his supervised release.
On May 2, 2014, the Northern District of California sentenced Petitioner to a 24-month prison term as a sanction for violating the conditions of his supervised release, and also imposed a consecutive 140-month sentence based upon convictions for one count of possession with intent to distribute marijuana, and one count of being a felon in possession of a firearm. It is this 164-month aggregate sentence Petitioner is currently serving at FCI-Sheridan.
On September 26, 2019, Petitioner filed this habeas corpus case in which he alleges that the BOP denied him credit for time spent in official detention before the Northern District of California imposed his 164-month sentence. Respondent asks the Court to deny relief on the Petition because: (1) Petitioner failed to properly exhaust his administrative remedies; and (2) the BOP already provided Petitioner with his credit for time served.
DISCUSSION
I. Exhaustion
“In order to seek habeas relief under section 2241 . . . a petitioner must first, ‘as a prudential matter,' exhaust his or her available administrative remedies.” Singh v. Napolitano, 649 F.3d 899, 900 (9 Cir. 2010) (per curiam). Requiring a petitioner to exhaust his administrative remedies aids "judicial review by allowing the appropriate development of a factual record in an expert forum." Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Use of available administrative remedies conserves "the court's time because of the possibility that the relief applied for may be granted at the administrative level." Id. Moreover, it allows "the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings." Id; United Farm Workers v. Arizona Agric. Employ. Relations Bd., 669 F.2d 1249, 1253 (9th Cir. 1982).
Cir. 2004).
"Exhaustion of administrative remedies is not required where the remedies are inadequate, inefficacious, or futile, where pursuit of them would irreparably injure the plaintiff, or where the administrative proceedings themselves are void." United Farm Workers, 669 F.2d at 1253 (citation omitted); see also Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (exhaustion waived where request for administrative remedy initially denied by Community Corrections Office based upon official B.O.P. policy and further appeal would almost certainly have been denied based upon the same policy). Courts should not, however, relax the exhaustion requirement where it “would encourage the deliberate bypass of the administrative scheme.” Laing v. Ashcroft, 370 F.3d 994, 1000 (9
The BOP maintains an administrative review process for prisoners that begins with an informal grievance, or BP-8. If an inmate does not achieve satisfactory results from that informal process, he may file a formal complaint with the warden using a BP-9 form. If the BP-9 is unsuccessful, the prisoner can file a Regional Administrative Remedy Appeal (BP-10). Finally, if the BP-10 does not afford Petitioner relief he finds to be satisfactory, he can file a Central Office Administrative Remedy Appeal (BP-11). See 28 C.F.R. §§ 542.13-542.15. If the BOP denies relief on the BP-11, the inmate has exhausted his administrative remedies and may file for judicial relief.
In this case, Petitioner filed an informal request with local staff, who informed him that they could not help him with his issue. According to Petitioner, he then spoke with his Warden who discouraged him from filing a BP-9 because it would be futile, and further informed him that the administrative remedy process permitted him to go straight to the source of the decision about which he was complaining. Petition (#1), pp. 8-9. After researching the issue, and where his sentence computation issue did not originate with the Warden or the Warden's staff, Petitioner believed that the regulations governing the administrative review process permitted him to bypass the BP-9 to the Warden and file his administrative remedy request directly with the Regional Office.
On April 10, 2019, Petitioner filed a BP-10 with the Regional Office. On April 23 2019, the Regional Office rejected that filing on procedural grounds. Specifically, the Regional Director informed Petitioner that he must first file a BP-9 with his Warden prior to filing a BP-10. Declaration of Jandi Lum, ¶10. Petitioner did not do so and, instead, filed a BP-11 with the Central Office on May 28, 2019. On June 11, 2019, the Central Office agreed with the Regional Office that Petitioner's appeal was procedurally deficient because he had not first filed a BP-9. Id. The Central Office went one step further, however, and suggested that before filing a BP-9, Petitioner might wish to review the computation of his sentence because the credit he sought for time served had already been applied to his sentence. Id.
Petitioner did not file a BP-9 and, instead, proceeded to file this habeas corpus case. Although Respondent asks the Court to dismiss this action for lack of exhaustion where Petitioner did not file a BP-9, he does not address Petitioner's contention that a BP-9 was unnecessary in this case. Petitioner's position is not plainly meritless where 28 CFR 542.14(d)(5) provides that “formal administrative remedy requests regarding initial decisions that did not originate with the Warden, or his/her staff, may be initially filed with the [BOP] office which made the original decision, and appealed directly to the General counsel.” After speaking with the Warden who represented that a BP-9 would be futile and that Petitioner could bypass the BP-9 filing, Petitioner followed 28 CFR 542.14(d)(5) exactly. Where Petitioner's assertions and argument on this issue are uncontroverted, the Court should conclude that Petitioner properly exhausted his sentencing computation claim.
II. The Merits
As pled in the Petition for Writ of Habeas Corpus, Petitioner maintains that the BOP has not credited him with any of the time he served in official detention after authorities took custody of him in the wake of his supervised release violations in October 2012. Although I appointed the Federal Public Defender's Office to assist Petitioner with his argument as to this claim, counsel has not addressed it. Instead, he argues that pursuant to the First Step Act, Petitioner should be receiving 54 days of good-time credits for each year of his sentence. Counsel's argued claim is not contained within the Petition for Writ of Habeas Corpus, thus it is not properly before the Court. See Rule 2(c), Rules Governing Section 2254 Proceedings, 28 U.S.C. foll. § 2254 (requiring each habeas petition to "specify all the grounds for relief which are available to the petitioner"); Rule 1(b) Rules Governing Section 2254 Proceedings (permitting the application of the 2254 Rules to other habeas proceedings); see also Greene v. Henry, 302 F.3d 1067, 1070 fn 3 (9th Cir. 2002) (a court need not consider claims not raised in the petition).
The claim properly at issue in this case is whether the BOP credited Petitioner for the time he spent in custody prior to the imposition of his 164-month sentence in the Northern District of California in 2014. A review of the record reveals that Petitioner was arrested in Contra Costa County on October 17, 2012 and sentenced to the 164-month term in the Northern District on May 1, 2014. Based upon these events, Petitioner was entitled to 562 days of credit for time served. The BOP credited him with 563 days credit for time served, reflecting the 562-day period referenced above plus the one day that remained from his 19-day detention in 2012 that resulted in a one-day overstay. Lum Declaration, ¶8; Declaration of Dawn Giddings, ¶¶8-11. Where the BOP credited Petitioner with the appropriate credit for time served, his Petition lacks merit.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#1) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should decline to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.