Opinion
3:23-cv-271-KAP
06-18-2024
LAZARO GINEBRA-VERA, Petitioner v. MICHAEL UNDERWOOD, WARDE F.C.I. LORETTO, et al., Respondents
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Petitioner Ginebra-Vera filed a petition dated October 30, 2023, ECF no. 15, seeking a writ of habeas corpus pursuant to 28 U.S.C.§ 2241(c)(3) because, he alleges, the Bureau of Prisons is wrongly computing his sentence. I denied petitioner leave to proceed in forma pauperis because he is not indigent, and in June 2024 petitioner paid the filing fee and the matter was re-opened. After screening the petition, I recommend that the petition be denied before service. See Rule 4 of the Rules Governing Section [28 U.S.C.§] 2254 Cases in the United States District Courts (Habeas Rules), applicable to Section 2241 petitions through Habeas Rule 1(b), and 28 U.S.C.§ 2243.
I am submitting this as a Report and Recommendation because preservice dismissal is appropriate: it would be wasteful to serve the matter to determine whether any or all parties would consent to my jurisdiction.
Report
Petitioner is at F.C.I. Loretto serving a sentence of imprisonment imposed in the United States District Court for the Southern District of Florida, at United States v. Ginebra-Vera, Case No. 1:11-cr-20877-MGC (S.D.Fla.), after petitioner pleaded guilty to one count of possession of a firearm and ammunition by a convicted felon, 18 U.S.C. 922(g)(1). On October 10, 2012, the Honorable Marcia G. Cooke sentenced petitioner to a prison term of 188 months, with a special condition of his three-year supervised release term that he cooperate in any removal proceedings initiated by Immigration and Custom Enforcement. The sentence was affirmed on direct appeal, United States v. Ginebra-Vera, 522 Fed.Appx. 827 (11th Cir.2013), and petitioner's first motion to vacate was denied, United States v. Ginebra-Vera, Case No. 1:11-cr-20877-MGC, 2016 WL 1295965 (S.D.Fla. March 30, 2016), certificate of appealability denied, No. 16-11924 (11th Cir. February 10, 2017). Petitioner unsuccessfully sought authorization to file a second motion to vacate in December 2019. In re: Lazaro Ginebra-Vera, No. 19-15017 (11th Cir. January 1, 2020). He is currently litigating a motion for sentence reduction in the trial court.
Using a form petition being submitted by inmates serving federal sentences at F.C.I. Loretto, petitioner asserts that he has been denied earned time credits (ETC) for participation in programming under the provisions of the First Step Act of 2018, Pub.L.No. 115-391, 132 Stat. 5208 (December 21, 2018), and he seeks a writ to the Bureau of Prisons ordering the BOP to apply those credits to his sentence.
The First Step Act 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 credits to most -but not all- inmates participating in these programs that can be applied toward time in prerelease custody or supervised release. Congress has precluded removable inmates with a final order of removal from having earned time credits applied to their sentences. 18 U.S.C.§ 3632(d)(4)(E):
(E) DEPORTABLE PRISONERS INELIGIBLE TO APPLY TIME CREDITS-
(i) In General- A prisoner is ineligible to apply time credits under subparagraph
(C) if the prisoner is subject of a final order of removal under any provision of the immigration laws (as such term is defined in Section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(17)).
Inmates using the form petition assert that because 8 C.F.R.§ 1241.1 defines when an order of removal becomes final after a hearing before an immigration judge under Section 240 of the Immigration and Nationality Act, 8 U.S.C.§ 1229a, and because they have never been before an immigration judge for a hearing, there is no valid final order of removal against them. Petitioner makes this claim and adds that because he is a Cuban national, given the current state of diplomatic relations between the United States and Cuba he will not be removed in any case.
The BOP has a three-tiered (or four-tiered if the informal remedy is counted) system through which a federal prisoner may file a grievance about any conditions of his imprisonment. 28 C.F.R.§§ 542.10-542.19. An inmate must first use a form BP-8 to “present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy.” 28 C.F.R.§ 542.13(a). An inmate who cannot resolve the problem informally must file “a formal written Administrative Remedy Request, on a form BP-9, [within] 20 calendar days following the date on which the basis for the Request occurred.” 28 C.F.R.§542.14(a). The responding authority is the warden of the inmate's institution, who has 20 days to respond. 28 C.F.R.§ 542.18. An inmate not satisfied with the warden's response must appeal that response. The Regional Director for the Northeast Region (NERO) is the relevant recipient of an appeal from Loretto. The appeal, on a form BP-10, must be filed within 20 days of the warden's signed BP-9 response. 28 C.F.R.§ 542.15(a). If the inmate is not satisfied with NERO's response, the final step is by filing a form BP-11 to the BOP's General Counsel within 30 days of the Regional Director's response. see 28 C.F.R.§ 542.18.
Petitioner almost completely ignored the administrative remedy process. He filed this petition, dated October 30, 2023, only seven days after he alleges he sent his BP-10 to the regional level of the BOP on October 23, 2023. That followed a rejection of his BP-9 because a signature on an attachment to his BP-9 was missing. Even if Ginebra-Vera is correct that the rejection of his BP-9 was erroneous because he signed in all the necessary places and further that NERO would agree with him and decide his claim on the merits, he filed his petition without giving NERO time to consider his BP-10 and without proceeding to the final step of review at the national level.
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, unless the matter 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). As the Court of Appeals has been saying for four decades, use of the 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).
There is no good reason for dispensing with the requirement of administrative exhaustion to consider this petition. See Ramirez v. Sage, 2022 WL 2318693, at *2 (M.D. Pa. June 28, 2022)(refusing to excuse exhaustion of administrative remedies on the grounds of futility because petitioner “anticipates he will be unsuccessful in his administrative appeals”), appeal dismissed sub nom. Ramirez v. Warden Schuylkill FCI, 2022 WL 18228673 (3d Cir. Oct. 4, 2022). Petitioner alleges that he never received a hearing under Section 240. At 18 U.S.C. § 3632(d)(4)(E)(i), however, the FSA makes an individual ineligible to have earned time credit applied if he or she is the “subject of a final order of removal under any provision of the immigration laws (as such term is defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)).” (my emphasis). The Section referred to, Section 101(a)(17) defines “immigration laws” as including “this chapter [Title 8] and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens.” 8 U.S.C.§ 1101(a)(17).
If petitioner's argument is that there is no final order of removal of any kind and the ICE notice to him at Petition, Exhibit 7, reciting that one exists is incorrect as a matter of fact, that is the sort of factual inquiry that the administrative remedy process is designed to answer. If petitioner's argument is that the only way a valid final order of removal can exist is after hearing under Section 240 (but see 8 U.S.C.§ 1228 (provision for expedited removal of aliens convicted of committing aggravated felonies)) and that his order of removal exists but is invalid, that is a challenge to the validity of the final order that must be made by petition for review to the appropriate Court of Appeals. See 8 U.S.C.A. § 1252(a)(1)-(5). If his argument is that as a practical matter being a Cuban national makes him not subject to a final order of removal, he is wrong. See Noya-Rodriguez v. Birkholz, 2024 WL 3009317, at *2 (C.D. Cal. May 10, 2024) (“That ICE may not be able to effectuate removal [to Cuba] does not mean that Noya-Rodriguez is not subject to an order of removal.”); Gonzalez v. Barraza, 2023 WL 8653164, at *2 n.4 (M.D. Pa. Dec. 14, 2023)(“To the extent that Petitioner attempts to argue that Cuba refuses to accept the return of inmates from the United States government, does not change the statute or its application to him.”)
No good reason exists to order service and spend time deciding exactly what petitioner's mass-produced petition intends to argue without letting the BOP consider the matter first and develop a factual record. As the Supreme Court explained, when discussing the general purpose of exhaustion requirements in the course of deciding that proper exhaustion is necessary for cases under the Prison Litigation Reform Act:
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).” Pozo, 286 F.3d, at 1024 (emphasis in original). This Court has described the doctrine as follows: “[A]s a general rule ... courts should not topple over administrative decisions unless the administrative body not only has erred, but has erred against objection made at the time appropriate under its practice.” United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (emphasis added). See also Sims v. Apfel, 530 U.S. 103, 108, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000); id., at 112, 120 S.Ct. 2080 (O'Connor, J., concurring in part and concurring in judgment) (“On this underlying principle of administrative law, the Court is unanimous”); id., at 114-115, 120 S.Ct. 2080 (BREYER, J., dissenting); Unemployment Compensation Comm'n of Alaska v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 91 L.Ed. 136 (1946); Hormel v. Helvering, 312 U.S. 552, 556557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); 2 K. Davis & R. Pierce, Administrative Law
Treatise § 15:8, pp. 341-344 (3d ed.1994). Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.Woodford v. Ngo, 548 U.S. 81, 90-91 (2oo6)(footnote omitted, emphasis in original). It wastes judicial resources when a petitioner fails to comply with the reasonable procedural requirements of the BOP's administrative remedy process and expects the habeas proceeding to be the forum in which both facts and legal arguments are developed.
The petition should be denied.
Pursuant to 28 U.S.C.§ 636(b)(1), the petitioner can within fourteen days file written objections to my recommendation. 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).
Notice by U.S. Mail to:
Lazaro Ginebra-Vera, Reg. No. 84155-004
F.C.I. Loretto
P.O. Box 1000
Cresson, PA 16630