Opinion
CA 9:20-cv-04271-JD-MHC
07-23-2021
Karim Abdullah Hasan, Petitioner, v. S.W. Phelps, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States 'Magistrate Judge.
Petitioner Karim Abdullah Hasan (“Petitioner”), a federal inmate incarcerated at Federal Correctional Institution (“FCI”) Edgefield, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner is pro se and was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. See ECF Nos. 10-11. Respondent S.W. Phelps (“Respondent”) filed a Motion for Summary Judgment, ECF No. 17, and Petitioner filed a Response in Opposition, ECF No. 20. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this matter was referred to the undersigned for a Report and Recommendation.
Petitioner contends that the Bureau of Prisons (“BOP”) miscalculated his sentence by failing to award jail credit as ordered by the sentencing court. He states that on September 14, 2015, in the United States District Court for the Eastern District of Tennessee, he was sentenced to 192 months' imprisonment to run concurrently to his state sentences. ECF No. 1 at 6-7. Petitioner requests that the BOP correct his sentence by giving him jail credits for the three and one-half years he was in state custody. ECF No. 1 at 7. However, because Petitioner failed to exhaust his administrative remedies, the Court recommends dismissing the Petition without prejudice.
I. BACKGROUND
A. BOP's Administrative Remedy Process
The BOP has a three-tier formal administrative remedy process through which an inmate may seek formal review of any issue which relates to any aspect of their confinement. See 28 C.F.R. §§ 542.10-542.19. 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 Administrative Remedy Request, which 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. Appeal to the General Counsel is the final level of agency review. Id.
B. Petitioner's administrative appeals
SENTRY, the BOP's record system, shows Petitioner filed an administrative remedy at the institution level, Remedy ID No. 1009903-F1, on March 10, 2020, regarding Jail Credit. ECF No. 17-2 at 1-2, ¶ 7; ECF No. 17-2 at 31-34. The request was denied fifteen days later. ECF No. 172 at 1-2, ¶ 7. The response advised that Petitioner was not eligible for a nunc pro tunc designation and that his federal sentence had been computed to begin the date it was imposed, which was the earliest date possible. ECF No. 17-2 at 1-2, ¶ 7; ECF No. 17-2 at 40.
As Respondent explains:
All formal requests are logged into the national database and given a unique identifying number. An extension is added to the number which denotes the level at which the claim is filed. Subsequent appeals of an issue will have the same identification number with a different extension identifying the level where filed. The extension “-F1” indicates the filing was at the institution or field level; “-R1” indicates a regional-level filing; and “-A1” indicates a national-level filing. If an appeal is rejected and re-filed at the same level, perhaps correcting the identified deficiencies, then the number will change but the letter will remain the same. For example, the extension “- R2” indicates the appeal was rejected at the regional level once and the inmate has re-filed, presumably after correction of the noted deficiencies.ECF No. 17-1 at 6-7.
Petitioner appealed the denial on April 8, 2020, to the Regional Office by filing Remedy ID No. 1009903-R1, where the remedy was denied on August 5, 2020. ECF No. 17-2 at 2, ¶ 8; ECF No. 17-2 at 31-34, 38. Petitioner appealed the denial to the Central Office (Remedy ID No. 1009903-A2) on June 2, 2020, where it was rejected on June 29, 2020, with the codes “IRQ RSA.” ECF No. 17-2 at 2, ¶ 9; ECF No. 17-2 at 31-34. Code “IRQ” means failure to provide a copy of the institution-level request or the response from the Warden, and “RSA” is a code that advises the inmate he could resubmit the appeal in proper form within fifteen days. ECF No. 17-2 at 2, ¶ 9.
The SENTRY printout denotes the first appeal, Remedy ID 1009903-A1, was accepted in error on June 24, 2020. See ECF No. 17-2 at 33. The appeal appears to have been subsequently rejected on June 29, 2020. See id.
Petitioner re-filed the appeal at the Central Office level in Remedy ID No. 1009903-A3 on August 10, 2020. ECF No. 17-2 at 2, ¶ 10; ECF No. 17-2 at 31-34. The remedy request was rejected on August 31, 2020, for being untimely (Code: “RJA”) and for failure to provide a copy of the Regional Administrative Remedy appeal or response from the Regional Director (Code: “RAP”). ECF No. 17-2 at 2, ¶ 10. The rejection notice advised Petitioner he could resubmit the remedy request with an explanation for the untimeliness. ECF No. 1-1 at 7. However, Petitioner did not resubmit, and he did not further pursue the remedy request after this date. ECF No. 17-2 at 2, ¶ 11; ECF No. 17-2 at 31-34.
II. LEGAL STANDARDS
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Habeas Corpus
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”), and other habeas corpus statutes. Pro se complaints 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 complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
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 “attacking] the computation and execution of the sentence rather than the sentence itself.” United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (per curiam); see also Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). A § 2241 petition 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); 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 § 2241 petition must be brought against the warden of the facility where the prisoner is being held, Rumsfeldv. Padilla, 542 U.S. 426, 434-35 (2004), and “in the district of confinement rather than in the sentencing court, ” Miller, 871 F.2d at 490. See also 28 U.S.C. § 2242.
C. Administrative Exhaustion
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies before seeking habeas review under § 2241. See, e.g., Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-91 (1973) (requiring exhaustion in a § 2241 matter); Timms v. Johns, 627 F.3d 525, 530-33 (4th Cir. 2010) (same); McClung v. Shearin, 90 F. App'x. 444, 445 (4th Cir. 2004) (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions.”); Miller v. Clark, 958 F.2d 368, 1992 WL 48031, at *1 (4th Cir. 1992) (unpublished table opinion) (“Federal prisoners who wish to challenge the length of their confinement must first exhaust administrative remedies.”); Henderson v. Warden, Edgefield Satellite Prison Camp, No. 2:09-cv-01599-RBH, 2009 WL 3317149, at *2 (D.S.C. Oct. 14, 2009) (“It is well settled that a federal prisoner is required to exhaust his administrative remedies within the BOP before filing an action pursuant to § 2241.”).
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. 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 Fed.Appx. 621, 622 (4th Cir. 2005). A petitioner's failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445; see also Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (“Cause and prejudice may excuse a procedural default of administrative remedies.”).
III. DISCUSSION
Respondent argues that Petitioner failed to exhaust his administrative remedies before filing his § 2241 Petition because he did not further pursue the August 31, 2020, rejection of his remedy request. The Court agrees.
As noted above, Petitioner followed the administrative appeal process all the way to the Central Office level (i.e., national level) when he appealed the Regional Office denial on June 2, 2020. ECF No. 17-2 at 2, ¶ 9; ECF No. 17-2 at 31-34. On June 29, 2020, his appeal was rejected, and he was informed that he could resubmit the appeal in proper form within fifteen days. ECF No. 1-1 at 6. Petitioner re-filed the appeal on August 10, 2020, and his resubmission was rejected on August 31, 2020, because it was untimely and because he did not provide copies of the Regional Administrative Remedy appeal or response from the Regional Director (Code: “RAP”). ECF No. 17-2 at 2, ¶ 10; ECF No. 1-1 at 7. The rejection notice clearly advised Petitioner he could resubmit the remedy request with an explanation for the untimeliness, but Petitioner failed to do so. See ECF No. 1-1 at 7; ECF No. 17-2 at 34. Petitioner then filed this § 2241 Petition. As a result, Petitioner failed to exhaust his administrative remedies before seeking habeas relief in this Court, and the Petition should be dismissed. See McClung v. Shearin, 90 F. App'x. 444, 445 (4th Cir. 2004) (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions.”).
In his Response to the Motion for Summary Judgment, Petitioner does not offer any argument for this Court to consider excusing his failure to exhaust. Rather, he states he exhausted his administrative remedies and re-attaches the administrative remedy paperwork that was attached to his Petition. However, the August 31, 2020, rejection notice he provides clearly states that his appeal was rejected as untimely and because he failed to include the proper paperwork, and it further informs him that he can resubmit his appeal and give a reason for the untimeliness. See ECF No. 20-1 at 7. This is not exhaustion, and Petitioner provides no reason why he did not further pursue his remedy request. Moreover, Petitioner failed to give a reason for the untimeliness to both the BOP and this Court. Therefore, the Court will not excuse Petitioner's failure to exhaust. See McClung, 90 Fed.Appx. at 445 (noting a petitioner's failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice).
For the foregoing reasons, Respondent is entitled to summary judgment. The petition should be dismissed without prejudice for failure to exhaust administrative remedies. See, e.g., Roudabush v. Warden FCI Edgefield, No. 818CV02070BHHJDA, 2019 WL 943663, at *4 (D.S.C. Jan. 29, 2019) (recommending dismissal of prisoner's § 2241 petition for failure to exhaust, where BOP rejected prisoner's administrative request as untimely and prisoner did not try to appeal that rejection), report and recommendation adopted, No. CV 8:18-2070-BHH, 2019 WL 935238 (D.S.C. Feb. 26, 2019); Taylor v. Warden, Satellite Prison Camp at Edgefield, S.C., No. 2:16-CV- 1826-RBH-MGB, 2016 WL 11190493, at *4 (D.S.C. July 21, 2016) (“[T]his unexhausted [§ 2241] Petition should be dismissed without prejudice for failure to exhaust administrative remedies.”), report and recommendation adopted, No. 2:16-CV-01826-RBH, 2017 WL 359497 (D.S.C. Jan. 25, 2017).
Because the Court finds Respondent is entitled to summary judgment on this basis, the Court declines to address Respondent's remaining arguments.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 17) be GRANTED and that the petition be DISMISSED without prejudice.
The parties are directed to the next page for their rights to file objections to this 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 835
Charleston, South Carolina
29402
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).