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considering the identical issue and finding the petitioner could not show that exhaustion would be futile because the BOP should have the opportunity to consider this issue internally while it implements the First Step Act's requirements, before it is subjected to judicial scrutiny
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Case No. 8:19-cv-00546-HMH-JDA
03-25-2019
Tony Tykwon Brown, Petitioner, v. Bureau of Prisons, Warden of FCI Williamsburg, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Tony Tykwon Brown ("Petitioner") is a prisoner in the custody of the Federal Bureau of Prisons ("BOP") and is currently incarcerated in South Carolina at the Williamsburg Federal Correctional Institution ("FCI Williamsburg"). [Doc. 1-2 at 1.] Proceeding pro se and in forma pauperis, Petitioner brings this action challenging the BOP's delay in calculating his sentence via good time credits under the First Step Act. 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 Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, the Petition filed in this action is subject to summary dismissal.
BACKGROUND
On March 14, 2018, Petitioner pled guilty in the United States District Court for the Eastern District of Tennessee to conspiracy to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(b)(1)(B). [Doc. 1-2 at 1]; United States v. Brown, No. 4:17-cr-00020-HSM-SKL-1 (E.D. Tenn. Mar. 14, 2018), Docs. 111; 120. On July 9, 2018, the Honorable Harry S. Mattice, Jr., sentenced Petitioner to, among other things, a total term of 120 months' imprisonment, to run consecutive to another federal sentence Petitioner was serving at that time. United States v. Brown, No. 4:17-cr-00020-HSM-SKL-1 (E.D. Tenn. Jul. 9, 2018), Docs. 130; 131. According to the BOP's Inmate Locator, Petitioner currently has a projected release date of April 27, 2027. See https://www.bop.gov/inmateloc/ (search by Petitioner's name) (last visited Mar. 25, 2019).
The Court takes judicial notice of the records in Petitioner's criminal case. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts "may properly take judicial notice of matters of public record"); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that 'the most frequent use of judicial notice is in noticing the content of court records.'").
The Court notes that projected release dates inherently fluctuate. This is so because they depend on a number of factors, including a prisoner's amount of credit for pre-sentence detention or "jail time served," the award of variable types of sentence credits, such as when an inmate earns good time, work, education, or other sentence-related credits, which reduce his max-out date, and the loss of those credits for disciplinary reasons, which may extend the max-out date. See Twitty v. Reynolds, No. 0:11-cv-2667-DCN-PJG, 2012 WL 2366452, at *1 n.2 (D.S.C. June 1, 2012), Report and Recommendation adopted by 2012 WL 2368330 (D.S.C. June 21, 2012).
Petitioner commenced this action on February 20, 2019, challenging the BOP's delayed implementation of the good time credit ("GTC") calculation set forth in the First Step Act. [Doc. 1-2 at 2.] Specifically, Petitioner claims he is entitled to an order requiring the BOP to calculate his sentence by awarding him 54 days of GTC for each year of his sentence. [Id. at 6-7.] Petitioner argues that, while he is entitled to a sentence calculation with an award of 54 days of GTC for each year of his sentence, the BOP has improperly delayed its implementation of the First Step Act. [Id. at 2.] Petitioner contends that the BOP has continued to provide only 47 days of GTC under the old method, claiming that the First Step Act does not become effective until the BOP completes its risk and needs assessment system. [Id. at 7.] According to Petitioner, the BOP's interpretation of the First Step Act is incorrect, and the new GTC calculation should have immediate effect. [Id.] For his relief, Petitioner asks that the Court order the BOP to comply immediately with the First Step Act and calculate Petitioner's sentence using the new calculation method. [Id. at 8.] To support his position, Petitioner cites United States v. Walker, No. 3:10-cr-00298-RBB-1 (D. Or. Feb. 7, 2019), Doc. 110. [Id.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Petitioner's envelope was stamped as received by the prison mailroom at FCI Williamsburg on February 20, 2019. [Doc. 1-1 at 2.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
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; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
Habeas Corpus
Generally
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is "attack[ing] the computation and execution of the sentence rather than the sentence itself." U.S. v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (per curiam). A petition pursuant to § 2241 challenging the execution of a federal prisoner's sentence generally addresses "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." Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (citing Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)); see also Manigault v. Lamanna, No. 8:06-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) ("A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers."). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004), and "in the district of confinement rather than in the sentencing court," Miller, 871 F.2d at 490.
Exhaustion
The execution of sentences and the computation of jail time is an administrative function under the authority of the Attorney General, who has delegated this task to the BOP, including the responsibility for computing time credits and determining a sentence termination date once a defendant actually commences serving his sentence. United States v. Wilson, 503 U.S. 329, 334-35 (1992) (clarifying that 18 U.S.C. § 3585(b) does not authorize a district court to award credit at sentencing, and the Attorney General must continue to compute credits as he did under the predecessor statute to § 3585). Accordingly, the Attorney General, through the BOP, must make the initial determination to award sentence credit for time spent in official detention; a district court does not have the jurisdiction to make an initial determination. U.S. v. Jeter, 161 F.3d 4, 1998 WL 482781, at *1 (4th Cir. 1998) (unpublished table decision). As a result, prior to filing a § 2241 habeas petition, a petitioner must exhaust his administrative remedies. McClung v. Shearin, 90 F. App'x 444, 445 (4th Cir. 2004) (unpublished opinion) (citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir. 1981)). The exhaustion of administrative remedies is not waivable. Jeter, 161 F.3d 4, 1998 WL 482781, at *2. Further, a petitioner's failure to exhaust administrative remedies is excused only upon a showing of cause and prejudice. McClung, 90 F. App'x at 445 (citing Carmona, 243 F.3d at 634-35).
The BOP's Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written complaint with the institution's warden; complaints must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id.
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts have required 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 a § 2241 matter); Timms v. Johns, 627 F.3d 525 (4th Cir. 2010) (noting courts require "exhaustion of alternative remedies before a prisoner can seek federal habeas relief" (internal quotation marks omitted)). 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). Any arguments not advanced at each step of the administrative appeal are procedurally defaulted. See Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002). Moreover, if a prisoner cannot obtain an administrative remedy because of his failure to timely appeal at the administrative level, then the prisoner has procedurally defaulted his § 2241 claim, unless the prisoner can demonstrate cause and prejudice for the failure. See, e.g., Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3rd Cir. 1996), cited with approval in Watkins v. Compton, 126 F. App'x 621, 622 (4th Cir. 2005); Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994).
DISCUSSION
Construction of the Pro Se Pleading
Petitioner commenced this action by filing a petition for writ of mandamus pursuant to 28 U.S.C. § 1361. [Doc. 1.] In an attempt to liberally construe Petitioner's pro se pleading, however, the Court construed this action as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Doc. 5 at 2.] The Court directed Petitioner to file a § 2241 habeas petition on the standard court form, and Petitioner filed a proper form Petition. [Docs. 5 at 2-3; 1-2.] Construing this action as a petition seeking habeas relief under § 2241 is appropriate because Petitioner challenges the BOP's calculation of his sentence, and he asks this Court to order the BOP to award him GTC pursuant to the First Step Act.
"[A] district court may recharacterize a habeas matter which has been improperly filed by a pro se litigant as some other sort of pleading." Lee v. Frazier, No. 5:11-CT-3101-F, 2011 WL 9977049, at *3 (E.D.N.C. Nov. 29, 2011) (citing Castro v. United States, 540 U.S. 375, 383 (2005); Rivenbark v. Virginia, 305 F. App'x 144, 145 (4th Cir. 2008)). Because Petitioner challenges the BOP's calculation of his sentence via GTC, the Court construes the action as a petition for writ of habeas corpus pursuant to § 2241. This is so because a § 2241 petition "is the proper means for a federal prisoner to challenge the BOP's sentencing calculations, including good conduct time credits." Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (citing Yi v. Fed. Bureau of Prisons, 412 F.3d 526 (4th Cir. 2005); United States v. Little, 392 F.3d 671, 679 (4th Cir. 2004)).
The Court notes that, regardless of whether this action is construed as one seeking habeas relief or as one seeking mandamus relief, the claims are frivolous and the case is subject to summary dismissal for the reasons explained below.
Even if treated as a petition seeking mandamus relief, Petitioner's claim would be without merit and the petition still would be subject to summary dismissal. Writs of mandamus are drastic remedies to be used only in extraordinary circumstances. Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir. 1987); see also In re Cox, 441 F. App'x 145 (4th Cir. 2011). The law is clear that such relief is only available when there are no other means by which the relief sought could be granted. In re Beard, 811 F.2d at 826; In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007). The party seeking mandamus relief carries the heavy burden of showing that his entitlement to such relief is clear and indisputable. Mallard v. United States Dist. Court, 490 U.S. 296, 309 (1989); Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980); see also United States v. Moussaoui, 333 F.3d 509, 517 (4th Cir. 2003). The United States Court of Appeals for the Fourth Circuit has held that
[t]he party seeking a writ of mandamus must satisfy the conditions of a rigorous test, demonstrating each and every one of the following requirements:
In re Braxton, 258 F.3d 250, 261 (4th Cir. 2001) (quoting United States ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 502, 511 (4th Cir. 1999)). Here, Petitioner is unable to meet the requirements for a writ of mandamus. This is so because Petitioner has other adequate means to attain the relief he desires, such as through a habeas action under § 2241. United States v. Sosa, 364 F.3d 507, 511 (4th Cir. 2004). Additionally, the BOP does not have a duty to act until the Attorney General has completed its risk and needs assessment to implement the First Step Act. As explained in detail below, the amendments to § 3624(b) do not become effective until the Attorney General completes its risk and needs assessment system, which it is required to do within 210 days after the Act was enacted. For these reasons, a petition for writ of mandamus would be subject to summary dismissal.(1) he has a clear and indisputable right to the relief sought; (2) the responding party has a clear duty to do the specific act requested; (3) the act requested is an official act or duty; (4) there are no other adequate means to attain the relief he desires; and (5) the issuance of the writ will effect right and justice in the circumstances.
The First Step Act and 18 U.S.C. § 3624(b)
"Federal sentencing law permits federal prison authorities to award prisoners credit against prison time as a reward for good behavior." Barber v. Thomas, 560 U.S. 474, 476 (2010). Specifically, 18 U.S.C. § 3624(b) authorizes the BOP to award GTC toward the service of a sentence for satisfactory behavior. "The BOP is vested with the authority by the Attorney General to calculate a federal prisoner's period of incarceration of the sentence imposed. . . . Implicit in this authority is the ability to calculate, and re-calculate, the sentence as changes occur and time is earned and lost, and to correct any inaccurate calculations as they are discovered." Morgan v. Morgan, No. 5:08-HC-2114-FL, 2010 WL 3239080, at *3 (E.D.N.C. Aug. 16, 2010) (citing United States v. Wilson, 503 U.S. 329, 334-35 (1992)); see also Newsome v. Williams, No. 3:15-cv-141, 2016 WL 11431790, at *3 (N.D.W. Va. May 26, 2016) ("Following a federal conviction and sentencing, the United States Attorney General, acting through the BOP, is responsible for calculating an inmate's term of confinement."), Report and Recommendation adopted by 2016 WL 4153615 (N.D.W. Va. Aug. 5, 2016).
On December 21, 2018, President Donald Trump signed into law the First Step Act of 2018 ("First Step Act" or "the Act"), Pub. L. No. 115-391, 132 Stat. 5194 (2018). Among other things, the First Step Act "amended 18 U.S.C. § 3624(b)(1) to change the manner in which good time credits are calculated by increasing the maximum allowable days from 47 to 54 per year." Schmutzler v. Quintana, No. 5:19-cv-046-DCR, 2019 WL 727794, at *1 (E.D. Ky. Feb. 20, 2019). Prior to this amendment, the BOP employed a method of awarding GTC on the basis of the number of days actually served and not on the length of the sentence imposed. See Barber v. Thomas, 560 U.S. 474, 478-83 (2010); Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 529 (4th Cir. 2005). The Supreme Court upheld the BOP's method for calculating an inmate's GTC based upon the time served under the old version of the statute. See Barber, 560 U.S. at 480.
As relevant to this case, the First Step Act provides as follows:
Section 3624 of title 18, United States Code, is amended—(A) in subsection (b)(1)—First Step Act of 2018, Pub. L. No. 115-391, § 102(b)(1), 132 Stat. 5194, 5210 (2018).
(i) by striking ", beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term," and inserting "of up to 54 days for each year of the prisoner's sentence imposed by the court,"; and
(ii) by striking "credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence" and inserting "credit for the last year of a term of imprisonment shall be credited on the first day of the last year of the term of imprisonment";
Accordingly, § 3624(b)(1), as amended by the First Step Act, provides as follows:
[A] prisoner . . . may receive credit toward the service of the prisoner's sentence of up to 54 days for each year of the prisoner's sentence imposed by the court, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. Subject to paragraph (2), if the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit toward service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines to be appropriate. In awarding credit under this section, the Bureau shall consider whether the prisoner, during the relevant period, has earned, or is making satisfactory progress toward earning, a high school diploma or an equivalent degree. Credit that has not been earned may not later be granted. Subject to paragraph (2), credit for the last year of a term of imprisonment shall be credited on the first day of the last year of the term of imprisonment.18 U.S.C. § 3624(b)(1).
As noted, however, the First Step Act changes the language of the statute, effectively abrogating Barber and Yi. Under the amended statute, the BOP must award GTC on the basis of the actual term of imprisonment imposed and not on the time actually served. This means that prisoners, such as Petitioner here, may be entitled to an award of additional days of GTC.
The question presented by this case is whether Petitioner is entitled to an Order requiring the BOP to immediately recalculate his sentence to apply an award of GTC in accordance with the First Step Act's amendment to § 3624(b). This issue is a matter of first impression in this District and in the Fourth Circuit. For the reasons below, the Court concludes that Petitioner is not entitled to the requested relief at this time, and the Petition is subject to summary dismissal because the First Step Act's amendments to § 3624(b) are not yet effective.
Analysis
Effective Date of Amendment
Section 102(b)(2) of the Act provides that the amendments to § 3624(b) take effect only after the Attorney General completes the risk and needs assessment system required by Section 101(a) of the Act. The statute notes explain:
18 U.S.C. § 3624(b)(1) (emphasis added). Section 101(a) does not require completion of the risk and needs assessment system until 210 days after the Act's December 21, 2018, enactment. Thus, Section 102(b)(1) will not take effect until approximately July 2019, provided the Attorney General takes the full 210-day period to complete the assessment. Importantly, § 102(b)(2) is clear that it applies to the implementation of all of § 102(b). The risk and needs assessment system involves the sentence calculation to the extent that the system must "determine when a prisoner is ready to transfer into pre-release custody or supervised release in accordance with § 3624." First Step Act of 2018, Pub. L. No. 115-015, 132 Stat. 015 § 101(a) (2018). The Court is obligated to apply the law as it is written. Congress chose to delay the implementation of the First Step Act's amendments until the Attorney General could complete the risk and needs assessment. The Court has no power to rewrite or disregard the express language of the statute.
AMENDMENT OF SUBSEC. (B)(1)
<Pub.L. 115-391, Title I, § 102(b)(1)(A), (2), Dec. 21, 2018, 132 Stat. 5210, 5213, provided that, effective beginning on the date that the Attorney General completes and releases the risk and needs assessment system under subchapter D of chapter 229 of Title 18, subsec. (b)(1) is amended by striking ", beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term," and inserting "of up to 54 days for each year of the prisoner's sentence imposed by the court,"; and by striking "credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence" and inserting "credit for the last year of a term of imprisonment shall be credited on the first day of the last year of the term of imprisonment".>
Because the Attorney General has not yet completed the assessment, the amendments to § 3624(b) have not taken effect. Accordingly Petitioner's argument that he is entitled to immediate relief is without merit. Although Petitioner may be frustrated with this process, the risk and needs assessment system being implemented by the BOP "is in compliance with statutory requirements." Sheppard v. Quintana, No. 5:19-cv-084-DCR, 2019 WL 1103391, at *2 (E.D. Ky. Mar. 8, 2019).
Plaintiff's reliance on Walker is without merit. In Walker, the court granted the petitioner's habeas motion and ordered the BOP to "recalculate Defendant's release date forthwith, using the amended good time provision in [the First Step Act] and a rate of 54 days of good conduct time per year for the ten year term of imprisonment imposed." Walker, Doc. 110 at 2. The court concluded that, given "the equities of the situation," the court would grant the "relief requested for this case only , without a final determination of the merits of the legal issues raised by Defendant." Id. at 1 (emphasis added). Importantly, the court was concerned that, because the petitioner's projected release date was April 8, 2019, and under the First Step Act his new release date would be January 28, 2019, the petitioner would be serving an unlawful sentence if he waited until after the BOP's implementation of the new calculation after completing the risks and needs assessment system. The court's concern addressed in Walker is not present in the instant case, as the projected release date for Petitioner is not until 2027.
A number of other courts have evaluated claims similar to those raised in the instant case and have reached the same conclusion. See, e.g., Schmutzler, 2019 WL 727794, at *2 (summarily dismissing a petition for a writ of habeas corpus pursuant to § 2241 based on the delayed effective date of the First Step Act and because the petitioner had failed to exhaust his administrative remedies); Rizzolo v. Puentes, No. 1:19-cv-00290-SKO-HC, 2019 WL 1229772, at *3 (E.D. Cal. Mar. 15, 2019) (same); Sheppard, 2019 WL 1103391, at *2 (same); Sennett v. Quintana, No. 5:19-cv-085-JMH, 2019 WL 1085173, at *2 (E.D. Ky. Mar. 7, 2019) (same); Kornfeld v. Puentes, No. 1:19-cv-00263-JLT-HC, 2019 WL 1004578, at *2-3 (E.D. Cal. Mar. 1, 2019) (same); Shah v. Hartman, No. 1:18-cv-07990, at 2-3, Doc. 12 at 3-5 (N.D. Ill. Jan. 3, 2019) (same).
Exhaustion Requirement
As an additional matter, the Court notes that Petitioner has not exhausted his administrative remedies, and he has failed to show any cause or prejudice that would arise from requiring him to first pursue such an available avenue of relief through the BOP's grievance process. As noted, prior to filing a § 2241 habeas petition, a petitioner must exhaust his administrative remedies. See, e.g., McClung, 90 F. App'x at 445 (citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir. 1981)). While § 2241 does not contain a statutory exhaustion requirement, "the requirement of administrative exhaustion, absent a showing of cause and prejudice, is a well established requirement which rests on federal case law throughout the federal courts." Zambrano v. Standsbury, No. 5:04-HC-251-BO, 2004 WL 3623345, at *1 (E.D.N.C. Dec. 14, 2004); see also Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010) (explaining that, generally, courts require exhaustion of administrative remedies before a prisoner can seek federal habeas relief). "Where a petition for writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241, the exhaustion of administrative remedies is jurisdictional." Hicks v. Jordan, 165 F. App'x 797, 798 (11th Cir. 2006); see Timms, 627 F.3d at 533.
As a general rule, the exhaustion of administrative remedies is not waivable. U.S. v. Jeter, 161 F.3d 4, 1998 WL 482781, at *2 (4th Cir. 1998). However, while the Fourth Circuit does not appear to have addressed the issue, some courts have held that the judicial exhaustion requirement of § 2241 may be excused by courts for discretionary reasons, such as where requiring exhaustion would be futile. See, e.g., Dunkley v. Hamidullah, No. 6:06-cv-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007). Further, courts have emphasized a petitioner's failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice. McClung, 90 F. App'x at 445 (citing Carmona, 243 F.3d at 634-35).
Here, Petitioner has not exhausted his administrative remedies, and he has failed to demonstrate any cause or prejudice suggesting the exhaustion requirement should be waived. "The purpose of the exhaustion requirement is to ensure that the agency has an opportunity to review and revise its actions before litigation is commenced, which preserves both judicial resources and administrative autonomy, and also to ensure that a court reviewing the agency's final action does so upon a developed and complete evidentiary record." Sennett, 2019 WL 1085173, at *2 (citing Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003); Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996)). Indeed, as one court has noted,
This case underscores the importance [of] one of the core values that the exhaustion requirement is designed to serve: ensuring that the Court has an adequate record before it to review the agency action in question. Without a full administrative record explaining the BOP's actions and the reasons for those actions, the Court lacks an adequate evidentiary basis upon which to review the claims asserted in the petition.Schmutzler, 2019 WL 727794, at *1 (citing Woodford v. Ngo, 548 U.S. 81, 89 (2006)). As another court has noted, this is "a situation where the exhaustion requirement is eminently reasonable" because the "Department of Justice and Bureau of Prisons are in the process of implementing a new statute. Congress has given the Executive Branch time for this implementation. It is reasonable to permit that implementation to occur, and to be challenging from within the Bureau of Prisons, before subjecting it to challenges in the federal courts." Shah v. Hartman, No. 1:18-cv-07990, Doc. 12 at 4-5 (N.D. Ill. Jan. 3, 2019). Because Petitioner has not exhausted his administrative remedies, the Petition should be dismissed on this basis as well.
CONCLUSION AND RECOMMENDATION
Accordingly, it is recommended that the § 2241 Petition be dismissed without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge March 25, 2019
Greenville, South Carolina
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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).