Opinion
3:23-cv-252-KAP
10-27-2023
MILKO VILOMAR BORGE, Petitioner v. MICHAEL UNDERWOOD, WARDEN, F.C.I. LORETTO, Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Petitioner Milko Borge, an inmate at F.C.I. Loretto, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.§ 2241. ECF no. 1. Pursuant to 28 U.S.C.§ 2243, the petition should be summarily denied without prejudice.
Report
This is filed as a Report and Recommendation because dismissal before service is appropriate. By now the Court is familiar with the many copycat federal habeas petition being filed with minor changes by inmates at Loretto. Borge submits, in the format of similar petitions, a claim that the Bureau of Prisons (BOP) “has refused to implement the First Step Act (FSA) Earned Time Credits (ETCs) as required by federal law, thereby limiting my access to the Second Chance Act (SCA), thus prejudicing me to serve more time than I am legally required to.”' Petition at ¶2(c). The First Step Act of 2018, Pub.L.No. 115-391, 132 Stat. 5208 (December 21, 2018) amended 18 U.S.C.§ 3621 to require the Bureau of Prisons to create or expand programs that will reduce the risk of recidivism by persons convicted of federal offenses, and to award eligible inmates who participate in these programs credits that can be applied toward time in prerelease custody or supervised release. The typical form petition alleges that the BOP has not credited the inmate with all his ETC or has improperly determined the inmate to be ineligible for ETCs either because of the offense of conviction or because the inmate is an alien subject to a final order of removal. This petition mentions an immigration detainer, but the petition has nothing to do with the status of any removal action.
Like many inmates who have obtained the form petition, Borge's attempt to tailor it to his use also relates his individual attempt to exhaust or excuse the lack of exhaustion of administrative remedies. Because Borge probably copied from a template, the allegations and dates in his Petition and the attached Affidavit do not always match. Borge submits as exhibits a collection of paperwork in support of exhaustion. ECF no. 2. Borge alleges that he filed an informal request for a remedy - a BP-8 - on August 18 or 20, 2023 and it was never answered. Petition, Exhibit 2. The exhibits include an email exchange before during and after the submission of administrative remedy forms in which Borge's Unit Manager confirms to Borge that he has been referred for placement in a halfway house. Exhibit 1. Borge alleges that he filed a BP-9 at Loretto on or about August 30 or 31, 2023, asking the BOP to “put me in for RRC as soon as possible.” That was rejected on September 1, 2023 -without prejudice to being resubmitted- for failure to attach evidence that he had attempted to resolve the matter informally with a BP-8. Exhibit 3. Borge's next step should have been to refile his BP-9 and then, if necessary after a proper BP-9 was submitted, to file a BP-10 at the Bureau of Prisons Northeast Regional Office (NERO), and finally (if necessary) to file a BP-11 seeking review at the Bureau of Prisons' Central Office. See 28 C.F.R. §§ 542.10-19.
What Borge alleges he did instead was to file a BP-10 with NERO on September 10 or 15, 2023. See Exhibit 4, which is an undated and unsigned request “to put me in for RRC as soon as possible.” Borge alleges in his Affidavit at 2 that he “has no timely response to the BP-10,” so he followed this with a BP-11 to the Central Office. See Exhibit 6, which is another undated and unsigned request “to be put in [for RRC] as soon as possible.” Borge, because he probably copied the Petition from a template, only mentions this administrative step in his Affidavit and does not mention any BP-11 in his Petition. If in fact Borge had submitted a BP-10 to NERO on the earlier date alleged either in the Petition or Affidavit (September 10), a lack of timely response would not have made a BP-11 a proper filing until October 10, 2023, which would not make a response to the BP-11 untimely until mid-November 2023. Borge filed his petition here dated October 9, 2023.
Borge also alleges that he wrote a letter to Immigration and Customs Enforcement's (ICE's) Pittsburgh office dated September 29, 2023. Exhibit 7. That exhibit attaches a detainer action letter from the BOP to ICE reflecting that Borge “has a referral for a tentative placement” on January 5, 2024 “in a Residential Reentry Center (RRC) located in or around his/her sentencing district,” and asking ICE to inform the BOP if Borge should become subject to a final removal order.
In general, an inmate who seeks habeas relief from actions by the Bureau of Prisons affecting the execution of a federal sentence, whether a disciplinary sanction, credit for prior custody decision, sentence computation, or length of placement in a residential reentry center, must exhaust available administrative remedies first, see 28 C.F.R.§ 542.1019, although an exception exists for matters involves only a question of law without the need for development of a factual record. See Vasquez v. Strada, 684 F.3d 431, 433-34 (3d Cir.2012), citing Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir.1981). Review in the Bureau of Prisons' administrative process not only facilitates judicial review by allowing the Bureau of Prisons to develop a factual record and explain its decision, but also conserves judicial resources because in at least some cases the inmate obtains relief in the administrative process. See Barksdale v. Sing Sing, 645 Fed.Appx. 107 (3d Cir. 2016); Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir.1996); Arias v. United States Parole Commission, 648 F.2d 196 (3d Cir.1981); Lindsay v. Williamson, 271 Fed.Appx. 158, 160 (3d Cir. 2008) (affirming sua sponte dismissal of 28 U.S.C. § 2241 petition for failure to exhaust administrative remedies).
Explaining the concept that exhaustion under the Prison Litigation Reform Act means proper exhaustion, the Supreme Court observed:
Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper exhaustion of administrative remedies, which “means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).”Woodford v. Ngo, 548 U.S. 81, 90 (2006). Woodford v. Ngo expressly used the concept of proper exhaustion in habeas as the guide for PLRA exhaustion. Id., 548 U.S. at 92: “In practical terms, the law of habeas, like administrative law, requires proper exhaustion[.]”
Inmates can be delayed in their release to a halfway house because there is no bed space available. Borge claims that he is eligible for RRC placement now, and the single scrap of information from the BOP indicates that the BOP believes that Borge “has a referral for placement” in January 2024. There may be no legal dispute at all over Borge's request “to put me in for RRC as soon as possible.”
If I had to guess, Borge copied a form habeas petition circulating at Loretto because he was told it would help him get a bed in an RRC faster. The inconsistent allegations about submitting either a BP-10 or a BP-11 make his habeas petition premature regardless of the accuracy of my guess, and the relief Borge seeks -speedier placement in an RRC-has nothing to do with whether he is eligible for ETCs or not, because his exhibits indicate the BOP has not denied him ETCs. If there is a legal dispute over Borge's eligibility for placement in a RRC (for example a dispute over how many days of ETC Borge has accumulated) it can be considered with a complete and accurate record - if there is a genuine dispute - after Borge has properly exhausted his administrative remedies as to that dispute. There is no reason to leap to consider questions Borge has not even framed accurately when those questions are committed to the Bureau of Prisons to resolve first.
Pursuant to 28 U.S.C.§ 636(b)(1), the petitioner is given notice that he has fourteen days to file written objections to this Report and Recommendation. The parties are advised that in the absence of timely and specific objections any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017)(describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).