Opinion
Civil Action 3:22-CV-184 (GROH)
12-18-2023
EIKO JONES, Petitioner, v. ACTING WARDEN NUNLEY, Respondent.
REPORT AND RECOMMENDATION
ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On November 4, 2022, the Petitioner, an inmate who was formerly incarceratedat Gilmer FCI (“Gilmer”), acting pro se, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241, regarding his placement at Gilmer, and a conflict of interest with Gilmer staff members. ECF No. 1. On November 7, 2022, the Petitioner paid the filing fee. ECF No. 4.
A review of the inmate locator page for the Bureau of Prisons shows that the Petitioner is currently incarcerated at Thomas FCI, in Thomson, Illinois. https://www.bop.gov/inmateloc/. The Petitioner has not updated his address with the Clerk since his transfer, despite being required to do so by Local Rule of Prisoner Litigation Procedure 6.
All ECF numbers cited herein are from the instant case, 3:22-CV-184, unless otherwise noted.
The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the Petition be dismissed without prejudice.
II. FACTUAL AND PROCEDURAL HISTORY
A. Instant Proceedings Under 28 U.S.C. § 2241
The Petitioner filed this petition for a writ of habeas corpus under 28 U.S.C. § 2241. Therein he raises two grounds for relief: (1) that he is being detained at a facility more than 500 driving miles away from his residence; and (2) that he has a conflict of interest with several FCI Gilmer staff members. ECF Nos. 1 at 5-6, 1-1. The Petitioner contends that he attempted to present the facts in relation to his petition to the prison's internal grievance procedure and the Bureau of Prisons (BOP), but asserts that the BOP Regional Office rejected his BP-10 because he did not first file a BP-9 at the institutional level, and that FCI Gilmer later lost his BP-9 request. ECF Nos. 1 at 7, 1-1 at 1. The Petitioner contends that he was previously denied a transfer because his Bureau of Prisons records incorrectly listed his medical status as a Care Level 2 chronic patient, even though the Petitioner claims to have “never been diagnosed by a physician as having any medical conditions whatsoever.” ECF No. 1-1 at 1. The Petitioner asks this Court to “consider his administrative remedy process exhausted due to the institution[']s delayed responses.” Id. at 2.
The Petitioner fails to identify his residence, but for relief, seeks to be transferred “to a facility within 500 miles of my residence.” ECF NO. 1 at 8. Further, he refers to the judgment entered in his criminal case which recommends as follows: “The defendant be housed as close as possible to Waukegan, Illinois.” ECF No. 1-4 at 2.
For relief, Petitioner asks for the Court to: (1) transfer him to a facility within 500 driving miles of his residence, preferably at FCI Milan, in Milan, Michigan, or FCI Greenville in Greenville, Illinois. Id. at 8.
III. STANDARD OF REVIEW
A. Review of Petitions for Relief
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and this Court's local rules, this Court is authorized to review such petitions for relief and submit findings and recommendations to the District Court. This Court is charged with screening Petitioner's case to determine if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rule 4(b), Rules Governing Section 2255 Cases in the U.S. District Courts.
B. Pro Se Litigants.
Courts must read pro se allegations in a liberal fashion and hold those pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because
of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.490 U.S. at 327.
The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided, “The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."
C. Habeas Corpus Petitions Filed Pursuant to 28 U.S.C. § 2241
A petition filed pursuant to § 2241 is the appropriate method for a prisoner to challenge the fact and length of his confinement, but generally not the conditions of that confinement. Preiser v. Rodriguez, 411 U.S. 475, 498 - 499 (1973). “[I]mmediate release or speedier release from [ ] confinement [is] the heart of habeas corpus.” Id. at 498.
D. Exhaustion of Administrative Remedies
The Bureau of Prisons' Program Statement (BOP PS) 1330.18 § 542.10 et seq., addresses the Bureau's Administrative Remedy Program, and directs inmates on the processes necessary to exhaust their administrative remedies by filing four mandatoryremedies: (1) an informal resolution (BP-8); (2) an administrative remedy at the facility (BP-9); (3) an appeal to the regional office (BP-10); and (4) a final appeal to the central office (BP-11). Failure to complete all four mandatory remedies is fatal to a claim based on the inmate's failure to exhaust administrative remedies.
See https://www.bop.gov/policy/progstat/1330 018.pdf.
Inmates who are incarcerated in Community Corrections Centers (CCCs) are not required to attempt informal resolution. BOP PS 1330.18 § 542.13.b.
Many BOP institutional handbooks refer to the Informal Resolution Form as the BP-8 form. See:
1. FC I Waseca https://www.bop.gov/locations/institutions/was/was ao handbook eng 031517.pdf;
2. FCI Oxford https://www.bop.gov/locations/institutions/oxf/OXF aohandbook.pdf;
3. FPC Schuylkill https://www.bop.gov/locations/institutions/sch/SCH camp aohandbook.pdf;
4. USMC Springfield https://www.bop.gov/locations/institutions/spg/spg ao handbook050917.pdf;
5. USP Lewisburg https://www.bop.gov/locations/institutions/lew/LEW smu aohandbook.pdf;
6. FDC Tallahassee https://www.bop.gov/locations/institutions/tal/TAL fdc aohandbook.pdf;
7. FCI Fort Dix https://www.bop.gov/locations/institutions/ftd/FTD aohandbook.pdf; and
8. USP/SCP McCreary https://www.bop.gov/locations/institutions/mcr/MCR aohandbook.pdf.
The Fourth Circuit recognizes the process that inmates must follow to exhaust administrative remedies:
The BOP grievance process is set forth at 28 C.F.R. § 542.13-.15 (2009). First, an inmate normally must present his complaint informally to prison staff using a BP-8 form. If the informal complaint does not resolve the dispute, the inmate may make an “Administrative Remedy Request” to the prison Warden using a BP-9 form. The BP-8 and BP-9 forms are linked. Both forms involve a complaint arising out of the same incident and both must be submitted within twenty calendar days of the date of that incident. 28 C.F.R. § 542.14(a). If the Warden renders an adverse decision on the BP-9, the inmate may appeal to the Regional Director within twenty calendar days of the date the Warden signed the response, using a BP-10 form. 28 C.F.R. § 542.15(a). The inmate may appeal an adverse decision by the Regional Director to the Central Office of the BOP using a BP-11 form. Id. Hill v. Haynes, 380 Fed.Appx. 268, 269, n.1 (4th Cir. 2010).
IV. ANALYSIS
A. Failure to Exhaust Administrative Remedies
Under the Prison Litigation Reform Act (PLRA), a prisoner bringing an action under 42 U.S.C. § 1983, or any other federal law, must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). “Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions. Failure to exhaust may only be excused upon a showing of cause and prejudice.” McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (citing Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634-35 (2d Cir.2001), Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir.1981)). Exhaustion as provided in § 1997e(a) is mandatory, regardless of the relief offered through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). Because exhaustion is a prerequisite to suit, all available administrative remedies must be exhausted prior to filing a complaint in federal court. Porter v. Nussle, 534 U.S. 516, 524 (2002) (citing Booth, 532 U.S. at 741). “Those remedies need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524.
Pursuant to McClung, failure to exhaust may only be excused upon a showing of cause and prejudice. The Petitioner contends that he attempted to exhaust his administrative remedies, but the institution failed to respond to his grievances. The Petitioner submitted records which he contends demonstrate that he took the required steps to exhaust the four-tiered administrative remedy process established for exhaustion of administrative remedies.
Attached to the petition are the following administrative remedy documents:
1. Rejection Notice for Remedy ID number 1125992-R1, received June 13, 2022, and rejected July 8, 2022, which relates to “institution clothing and services,” and which was rejected because: (a) the Petitioner did not first file a BP-9 at the institutional level, and (b) the Petitioner submitted more than one continuation page. ECF No. 1-2 at 1.
2. Regional Administrative Remedy Appeal Remedy ID number 1125992-R1, which bears a date stamp showing that it was received June 13, 2022. ECF No. 1-2 at 2. On the five handwritten pages attached thereto, the Petitioner complains of “inadequate clothing / linen,” and subsequent verbal threats by staff following the Petitioner's complaints at the institutional level about his clothing and linen, and then retaliation against him by staff who filed an incident report. ECF No. 1-2 at 4-6. The Petitioner further claimed that he was in fear for his physical safety. Id. at 6.
3. Request for Administrative Remedy Informal Resolution Form (BP-8) for FCI Gilmer, executed by the Petitioner on September 13, 2022, seeking transfer to a low security facility. ECF No. 1-3 at 2. On September 14, 2022, a staff member and a Unit Manager signed off on a response which advised that a transfer request was submitted on August 23, 2022, however the transfer was denied. Id. Further, the staff advised that the transfer request would be resubmitted. Id.
4. Request for Administrative Remedy form (BP-9) executed by the Petitioner on September 16, 2022, which again sought transfer to a lower security facility. ECF No. 1-3 at 1. The record does not show any marking or date stamp to show that it was received by the institution. Id.
The Petitioner did not submit any records that he attempted to file either an additional BP- 10 with the Regional Office, or a BP-11 with the Central Office or otherwise as to the issues raised in his § 2241 petition.
As recognized in Carmona, supra, which was cited by the Fourth Circuit in its opinion in McClung:
[T]he interests of judicial economy and accuracy are served by requiring that, absent a showing of cause and prejudice, appeals proceed in the first instance through the federal agency review process. Following the administrative procedures could potentially obviate the need for judicial review, or at a minimum, develop the factual record at the agency level at a time when the disputed events are still relatively fresh in witnesses' minds. In this sense, it is the
analogue of the exhaustion of state remedies requirement for a state prisoner seeking federal habeas review, and the results governing failure to take this path should be the same. Administrative autonomy is also served by requiring that a federal prisoner justify his failure to exhaust his intra-Bureau remedies. When, however, legitimate circumstances beyond the prisoner's control preclude him from fully pursuing his administrative remedies, the standard we adopt excuses this failure to exhaust.Carmona, 243 F.3d at 634 (internal citations omitted).
Although it is possible that Petitioner attempted to file an administrative remedy at FCI Gilmer, the documents he has provided do not support this claim. He submits a BP-8 Informal Resolution Form filed on September 13, 2022, and in which on September 14, 2022, Staff responded that an informal resolution was not accomplished. ECF No. 1-3 at 2. He also submits a BP-9 dated September 16, 2022, which appears to be executed, but does not bear a date stamp to demonstrate that the Petitioner ever filed the administrative remedy. ECF No. 1-3 at 1. Further, the Petitioner claims that he attempted to file his administrative remedies but was thwarted by Gilmer officials whom he claims “lost” his request. ECF Nos. 1 at 5, 1-1 at 1. By contrast, the Petitioner submitted a Regional Administrative Remedy Appeal (ID Number 1125992-R1) which bears a date stamp that the document was received on June 13, 2022. ECF No. 1-2 at 2. Additionally, the Regional Appeal Rejection Notice states that the appeal (ID Number 1125992-R1) was received on June 13, 2022. ECF No. 1-2 at 1. Notwithstanding any issue related to these filings, the Petitioner failed to file an appeal (BP-10) with the Regional Office after he contends that the institution misplaced his BP-9. Moreover, the Petitioner does not contend that he ever attempted to file an appeal (BP-11) to the Central Office.
Although the Petitioner claims he did not administratively exhaust his claims because he did not receive a response to his grievances, the Petitioner does not submit a copy of those alleged grievances which show that he ever submitted such a grievance. Further, the Petitioner fails to allege that he ever attempted to obtain or file an administrative remedy by filing BP-10, and/or BP-11 administrative remedy forms which are required to exhaust pursuant to 28 C.F.R. § 542.13-.15, and BOP Program Statement 1330.18 § 542.10 et seq. Finally, the Petitioner never asserts that he requested administrative remedy forms, or was denied those forms by Gilmer staff. Accordingly, the undersigned finds that no cause or prejudice exists to excuse Petitioner's failure to exhaust.
The Petitioner has failed to exhaust all administrative remedies available to address his claims. Although such a failure to exhaust may be excused for cause and prejudice, Petitioner has not demonstrated either cause or prejudice. The petition does not allege that Petitioner was denied access to the forms necessary to file administrative remedies, but rather contends that staff failed or refused to submit those forms once prepared by Petitioner. However, even if the Petitioner did not receive a response to his grievance, he was still obligated to appeal the lack of response to the Regional and Central Offices before filing the instant petition. Notwithstanding that obligation, the Petitioner does not contend that he attempted to appeal to the Regional or Central Offices following the alleged failure to respond to his BP-9 at the institutional level.
Because Petitioner has failed to exhaust his administrative remedies prior to filing this action, this court is without jurisdiction to consider the merits of the petition. When subject-matter jurisdiction does not exist, “the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 1012-16 (1998); Reinbold v. Evers, 187 F.3d 348, 359 n.10 (4th Cir. 1999).
B. The Petitioner's Second Claim for Relief: Location of Incarceration and Custody Classification are Not Properly Considered under § 2241.
Even if the Petitioner had exhausted his administrative remedies, he is still not entitled to relief on the merits. The Petitioner is not entitled to relief on the merits related to his claim regarding the location of his incarceration. The Petitioner challenges his prison conditions, and asserts that he has been improperly denied transfer to a facility closer to his residence. ECF No. 1 at 5. For relief from this ground, Petitioner does not seek release from custody, to shorten his incarceration, or to restore any good time credit. Rather, Petitioner seeks to have the Court order the Bureau of Prisons to transfer him to another facility. ECF No. 1 at 8.
To the extent that Petitioner contends that the BOP, acting through its administration or through FCI Gilmer, failed to properly determine his facility placement, or custody classification, his petition fails because neither the fact nor the length of his confinement are contested. Because Petitioner seeks relief that does not affect the fact or duration of his confinement, his claim is inappropriate for consideration under § 2241. As stated by the Supreme Court:
Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under . . . 42 U.S.C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas
corpus.” An inmate's challenge to the circumstances of his confinement, however, may be brought under § 1983.Hill v. McDonough, 547 U.S. 573, 579 (2006) (internal citations omitted). The Supreme Court previously explained in a challenge by two prisoners that, “[b]ecause neither prisoner's claim would necessarily spell speedier release, neither lies at ‘the core of habeas corpus' . . . [and] the prisoners' claims for future relief (which, if successful, will not necessarily imply the invalidity of confinement or shorten its duration) are yet more distant from that core.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (internal citations omitted). Further, in Rodriguez v. Ratledge, 715 Fed.Appx. 261, 266 (4th Cir. 2017), the Fourth Circuit found a petitioner's challenge to his transfer to a higher security institution “was not a cognizable 2241 claim, because this petition challenges the conditions of his confinement, not its fact or duration.”
Federal prisoners may file a petition under § 2241 to challenge the fact or duration of confinement.
Actions filed under § 1983 are civil rights actions against state actors. In Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 399 (1971), the Supreme Court created a counterpart to §1983, so that in limited circumstances individuals may bring suit against a federal actor for violating a right guaranteed by the Constitution or federal law. Egbert v. Boule, 142 S.Ct. 1793 (2022).
Similarly, other Courts of Appeal have held that prisoners have no constitutional right to placement in any particular institution or custody classification. Neal v. Shimoda, 131 F.3d 818, 828 (9th Cir.1997) (“[A] prisoner does not have a constitutional right to be housed at a particular institution, ..., [or] to receive a particular security classification....”) (citing Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2537 (1976), Moody v. Daggett, 429 U.S. 78, 87 n.9, (1976); Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (“[A] prison inmate does not have a protectable liberty or property interest in his custodial classification and an inmate's disagreement with a classification is insufficient to establish a constitutional violation.”) (Citing Wilson v. Budney, 976 F.2d 957 (5th Cir. 1992)).
In an unpublished per curiam opinion, the Fourth Circuit affirmed that an inmate's classification is administrative and prison officials can change an inmate's security classification “for almost any reason or no reason at all.” Brown v. Ratledge, No. 7-16-CV-00303, 2017 WL 4404248, at *7 (W.D.Va. Sept. 29, 2017, aff'd, 709 Fed.Appx. 215 (4th Cir. 2018) (per curiam) (unpublished) (citations omitted).
The district court more fully explained that:
A prison inmate does not have a protectable liberty or property interest in his custodial classification” and does not have a constitutional right to be housed in a particular facility. See Wolters v. Fed. Bureau of Prisons, 352 Fed.Appx. 926, 928 (5th Cir. 2009) (citing Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995)). Classification of inmates is an administrative function, and prison officials can change an inmate's classification for almost any reason or no reason at all. See Jackson v. Cain, 864 F.2d 1235 (5th Cir. 1989); Wolters, 352 Fed.Appx. at 928; Mendoza v. Lynaugh, 989 F.2d 191, 194 n. 4 (5th Cir. 1993). Therefore, the court concludes that Brown's allegations do not state a due process violation.Brown v. Ratledge, 2017 WL 4404248, at *7.
In his claim related to his placement, it is clear that Petitioner does not attack, nor are his claims related in any way to, the execution of his sentence. He does not challenge the validity of his confinement or seek speedier release from confinement. Instead, he complains about his placement at FCI Gilmer at a higher custody classification level, instead of a lower security BOP facility. Accordingly, it appears that the Petitioner has failed to assert a claim for which relief can be granted under 28 U.S.C. § 2241, and his second ground for relief must be dismissed.
The BOP website lists Gilmer FCI as a medium security facility. https://www.bop.gov/about/facilities/federal prisons.jsp. The following institutions are listed as Low Security: Aliceville FCI, Ashland FCI, Atlanta USP, Bastrop FCI, Big Spring FCI, Danbury FCI, Dublin FCI, Elkton FCI, Englewood FCI, Fort Dix FCI, La Tuna FCI, Loretto FCI, Memphis FCI, Miami FCI, Milan FCI, Oxford FCI, Safford FCI, Sandstone FCI, Seagoville FCI, Tallahassee FCI, Terminal Island FCI, Texarkana FCI, Thomson FCI, and Waseca FCI. Id. Additionally, the following institutions are designated as Minimum Security: Alderson FPC, Bryan FPC, Duluth FPC, Montgomery FPC, Morgantown FCI, Pensacola FPC, and Yankton FPC. Id.
Further, to the extent that Petitioner alleges that the BOP improperly designated him to a facility more than 500 driving miles of his residence, the same is not cognizable in a habeas petition. The Fourth Circuit has held that a petitioner's “claim seeking to have the BOP reconsider where he is being housed is one that would not fall within the scope of habeas corpus.” Wilborn v. Mansukhani, 795 Fed.Appx. 157, 164 (4th Cir. 2019).
Pursuant to 18 U.S.C.A. § 3621(b):
The Bureau of Prisons shall designate the place of the prisoner's imprisonment, and shall, subject to bed availability, the prisoner's security designation, the prisoner's programmatic needs, the prisoner's mental and medical health needs, any request made by the prisoner related to faithbased needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner's primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.
Because the issue raised by Petitioner related to the BOP's refusal to transfer him, which is not appropriate for disposition through a § 2241 proceeding, this ground should be dismissed for failure to state a claim upon which relief may be granted. To the extent that Petitioner contests his custody classification and seeks a lower custody classification, the issue is also inappropriate for disposition in a § 2241 proceeding because a challenge to custody classification contests the conditions of confinement, not the fact or duration of confinement. Custody classification issues are within the purview of the BOP, and are improperly considered for review in a § 2241 proceeding. Accordingly, Petitioner's claim is not appropriate in a § 2241 proceeding, even if this Court had subject matter jurisdiction.
Finally, it appears that the Petitioner has received the relief sought in his petition by his transfer to Thomson FCI in Thomson, Illinois. In addition, any concern for his physical safety (which he asserts as a conflict of interest with several FCI Gilmer staff members [ECF No. 1 at 5-6, 11]) which may have arisen during his placement at FCI Gilmer is now moot, as the Petitioner is no longer housed at that institution.
V. RECOMMENDATION
For the foregoing reasons, I RECOMMEND that the Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [ECF No. 1] be DENIED and that the § 2241 proceeding be DISMISSED WITHOUT PREJUDICE.
The Petitioner shall have fourteen (14) days from the date of filing this Report and Recommendation within which to file with the Clerk of this Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. 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), cert. denied, 467 U.S. 1208 (1984).
This Report and Recommendation completes the referral from the district court. The Clerk is directed to terminate the Magistrate Judge's association with this case.
The Clerk of the Court is directed to mail a copy of this Report and Recommendation to the pro se Petitioner by certified mail, return receipt requested, to his last known address as reflected on the docket sheet.