Opinion
Civil Action No. 4:04-CV-0271-Y.
September 8, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Donaciano Hernandez-Escarsega, Reg. No. 82161-012, is a federal prisoner who is currently incarcerated in the Federal Medical Center (FMC-Fort Worth) in Fort Worth, Texas.
The Respondent is L.E. Fleming, Warden of FMC-Fort Worth.
C. BACKGROUND
On October 24, 1986, Petitioner Hernandez-Escarsega was sentenced in the United States District Court for the Southern District of California to a 40-year term of imprisonment for Conspiracy to Import Controlled Substance and Travel in Interstate Commence in Aid of Racketeering and Continuing Criminal Enterprise. (Resp't Appendix A at 1-2.) His sentence was subsequently reduced by the district court to 35 years. ( Id.) He is currently serving his 35-year term of imprisonment at FMC-Fort Worth and is "slated" for release to mandatory supervision on April 29, 2006. ( Id.) The Immigration and Naturalization Service (INS) has lodged an immigration detainer against him with the Bureau of Prisons (BOP).
The INS has been transferred into the Directorate of Border and Transportation Security within the Department of Homeland Security and is now known as United States Immigration and Customs Enforcement (ICE). Nevertheless, for the purposes of these findings, the court will refer to the INS.
On April 12, 2004, Hernandez-Escarsega filed this petition for writ of habeas corpus, wherein he contends that, because he is a "naturalized citizen" or, at the very least, a "national" of the United States, the INS detainer is illegal. (Petition at 5-9.) He further contends that as a result of the illegal INS detainer, he has been improperly classified by the BOP as a "deportable alien" and, thus, ineligible for various programs, including prison camp placement, furloughs to visit his family, halfway house placement, home confinement, sentence reduction for completion of the 500-hour drug abuse program, and educational transfers. ( Id.) Respondent Fleming has filed a response in which he moves to dismiss the petition for failure to exhaust administrative remedies and/or failure to state a claim upon which relief can be granted.
D. ANALYSIS
To the extent Hernandez-Escarsega claims the INS detainer is illegal, a habeas petitioner may not challenge the detainer levied against him by way of habeas corpus until he is placed in the custody of the INS, an event which will not occur until Hernandez-Escarsega is released from his present term of confinement. See Campillo v. Sullivan, 853 F.2d 593, 595-96 (8th Cir. 1988) (holding habeas relief as to INS detainer unavailable until prisoner placed in INS custody); see also Prieto v. Gulch, 913 F.2d 1159, 1162-63 (6th Cir. 1990) (same); Fernanadez v. I.N.S., No. 3:01-CV-0317-P, 2001 WL 435065, at *2 (N.D. Tex. Apr. 20, 2001) (same), adopted, 2001 WL 493142 (N.D. Tex. May 76, 2001) (not designated for publication). But see Vargas v. Swan, 854 F.2d 1028, 1032-33 (7th Cir. 1988) (stating that under certain circumstances INS detainer could establish INS custody). Accordingly, this claim is dismissed for lack of jurisdiction.
To the extent Hernandez-Escarsega claims that as a result of the illegal INS detainer, the BOP has classified him as a "deportable alien" and denied him the benefit of, or placement in, various programs, his claim is unexhausted. See 28 U.S.C. § 2254(b), (c). Under Fifth Circuit case law, federal prisoners are required to exhaust available administrative remedies through the BOP before seeking habeas corpus relief under § 2241. See Rourke v. Thompson, 11 F.3d 47, 50 (5th Cir. 1993). An administrative remedy procedure for federal prisoners is provided at 28 C.F.R. §§ 542.10-542.19. Under this administrative procedure, if informal resolution fails, the inmate must pursue a three-level process within the prescribed time intervals. Typically, the inmate must formally appeal to the Warden, via a Request for Administrative Remedy, commonly referred to as a BP-9; then to the Regional Director, via a form commonly referred to as a BP-10; and finally to the Office of General Counsel, via a form commonly referred to as a BP-11. (Resp't Appendix A at 2.) Administrative remedies have not been exhausted until the inmate's claim has been filed at all levels and has been denied at all levels. ( Id.) See 28 C.F.R. § 542.15; Rourke, 11 F.3d at 49.
In support of the government's argument that Hernandez-Escarsega's petition should be dismissed for lack of exhaustion of administrative remedies, it has submitted the declaration of Alberto Munguia, Supervisory Attorney at FMC-Fort Worth. (Resp't Appendix A at 1.) Affiant Munguia avers that, by way of his employment, he has access to inmates' records maintained by the BOP. ( Id.) Munguia further avers that review of BOP records reveals that Hernandez-Escarsega has not exhausted the administrative remedy process relevant to his claim. ( Id. at 2.) The purpose of exhaustion is to permit the federal agency being challenged to correct its own error without court intervention. Smith v. Thompson, 937 F.2d 217, 219 (5th Cir. 1991). Exceptions to the exhaustion requirement are appropriate only in extraordinary circumstances where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (quoting Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985)). Such showing not having been demonstrated by Hernandez-Escarsega, he cannot now proceed in this court in habeas corpus. Accordingly, dismissal of this federal habeas corpus proceeding for lack of exhaustion is warranted so that Hernandez-Escarsega can fully exhaust his administrative remedies and then return to this court, if he so desires, after exhaustion has been properly and fully accomplished.
II. RECOMMENDATION
The government's motion to dismiss should be granted and Hernandez-Escarsega's petition for writ of habeas corpus be dismissed without prejudice.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until September 28, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until September 28, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.