Opinion
C. A. 5:22-1184-SAL-KDW
01-18-2023
John Oscar Kalu, Petitioner, v. Warden R.S. Dunbar, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
John Oscar Kalu (“Petitioner”), proceeding pro se, is incarcerated at the Federal Correctional Institution Williamsburg in Salters, South Carolina, a facility of the federal Bureau of Prisons (“BOP”). He filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Motion to Dismiss, or in the alternative, Motion for Summary Judgment.ECF No. 26. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 27. After obtaining an extension, ECF No. 31, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on September 16, 2022. ECF No. 33.
Because the court has considered matters outside of the pleadings, the undersigned considers the motion as one for summary judgment. The Roseboro order issued to Petitioner contained an explanation of the summary judgment procedures.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the court grant Respondent's Motion for Summary Judgment.
I. Factual and Procedural Background
On March 30, 2021, Petitioner was convicted in the United States District Court for the Southern District of Florida of one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349; two counts of bank fraud, in violation of 18 U.S.C. § 1344; and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). United States v. Kalu, Cr. No.: 1:10-cr-20625-RAR-1 (S.D. Fl. June 7, 2011), ECF No. 104. On June 7, 2011, the court sentenced Petitioner to 168-months imprisonment. Id., ECF No. 117. Petitioner filed a notice of appeal on June 13, 2011, and the Eleventh Circuit Court of Appeals issued an order affirming Petitioner's convictions and sentences on August 29, 2012. Id., ECF Nos. 122, 142. On September 30, 2013, Petitioner filed a pro se motion to vacate judgment under 28 U.S.C. § 2255. Kalu v. United States, C/A No.: 1:13-cv-23538-FAM (S.D. Fl. July 22, 2014), ECF No. 1. The court dismissed Petitioner's § 2255 motion on July 22, 2014. Id., ECF No. 17. Petitioner filed a second § 2255 motion on March 8, 2016, which the district court denied on June 28, 2017. Kalu v. United States, C/A No.: 1:16-cv-20835-FAM (S.D. Fl. June 28, 2017), ECF Nos. 1, 16. Petitioner filed a third § 2255 motion on July 26, 2017, which the district court denied on August 31, 2017. Kalu v. United States, C/A No.: 1:17-cv-23023-FAM (S.D. Fl. Aug. 31, 2017), ECF Nos. 1, 7. Petitioner filed a fourth § 2255 motion on April 5, 2018, which the district court denied on June 7, 2018. Kalu v. United States, C/A No.: 1:18-cv-21344-FAM (S.D. Fl. June 7, 2018), ECF Nos. 1, 10.
Petitioner filed this habeas petition on April 12, 2022, requesting the court order the BOP to correct his good time credits under the First Step Act by increasing his credits from 42 days to 54 days. ECF No. 1 at 8.
II. Discussion
A. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly 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.” Id. at 248. The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56.
B. Analysis
Respondent argues the instant petition should be dismissed because Petitioner failed to exhaust his administrative remedies before filing his petition. ECF No. 26 at 4-8. Respondent also contends the petition should be dismissed because Petitioner does not have a protected liberty interest in the opportunity to earn good conduct time, and the BOP has properly calculated Petitioner's good conduct time. Id. at 8-11.
In response to Respondent's summary judgment motion, Petitioner claims he has attempted to exhaust his administrative remedies, but was unable to do so. ECF No. 33 at 3. Petitioner argues the BOP has already determined his First Step Act claim and therefore their exhaustion argument is a “systematic and customary way[] of prolonging” granting him relief. Id. Petitioner also contends the good time credit that is being withheld from him by the BOP is earned good time credit and therefore is a violation of his due process rights. Id. at 4-5. Finally, Petitioner claims the BOP is incorrectly calculating his good conduct time. Id. at 5-7.
Petitioner is required to exhaust his administrative remedies within the BOP before submitting a § 2241 petition in this case. Although § 2241 does not contain a statutory exhaustion requirement, courts consistently require 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 28 U.S.C. § 2241 matter); McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions.”). This requirement of 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).
The BOP has a three-tiered formal administrative grievance process, in addition to an informal resolution process. See 28 C.F.R. §§ 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. 28 C.F.R. § 542.13. If the matter is not resolved informally, the inmate may file a formal written complaint to the warden within 20 calendar days after the date upon which the basis for the request occurred. 28 C.F.R. § 542.14. The matter will be investigated, and a written response provided to the inmate. Id. If dissatisfied with the response, the inmate may appeal to the Regional Director within 20 days of the date of the Warden's response. 28 C.F.R. § 542.15(a). If dissatisfied with the regional response, the inmate may appeal to the General Counsel within 30 days of the Regional Director's response. Id. Appeal to the General Counsel is the final level of agency review. 28 C.F.R. § 542.15(a).
In support of his summary judgment motion, Respondent submits an affidavit from J. Carter, Legal Assistant for the South Carolina Consolidated Legal Center, at FCI Edgefield, South Carolina. ECF No. 26-1 at 1. Carter attests Petitioner filed an administrative remedy seeking to have his good conduct time reevaluated. Id. Carter states Petitioner's remedy was rejected at the institutional level with instructions to correct deficiencies and refile. Id. Carter attests Petitioner did not correct and refile his administrative remedy, but instead filed at the regional level. Id. Carter states Petitioner's regional filing was rejected, and Petitioner was instructed to properly file his administrative remedy at the institutional level before filing as the regional level. Id. Carter attests Petitioner failed to file at the institutional level, nor did he file any appeal at the national level. Id.
In response, Petitioner submits his own affidavit and states he attempted to exhaust his administrative remedies, but could not “because of his belief that BOP has already determined the case.” ECF No. 33-2 at 2.
Petitioner appears to acknowledge he did not exhaust his administrative remedies before he filed his habeas petition, however, he argues any further exhaustion is futile. Petitioner's failure to exhaust his administrative remedies may be excused under certain circumstances, such as by showing futility. United States v. Strickland, No. 7:98-CR-82-5-F(1), 2004 WL 3414644, at *1 (E.D. N.C. Aug. 9, 2004), aff'd, 126 Fed.Appx. 116, 117 (4th Cir. 2005). However, Petitioner's belief that the BOP had already decided his case is insufficient to show futility as Petitioner has failed to offer any evidence that the Regional Director, or the BOP General Counsel were biased or had predetermined the issues in his case. See, Levon v. Zickefoose, 2010 WL 3025135, *4 (D.N.J. July 30, 2010) (rejecting futility argument based on the inmate's presumption that his administrative grievance would be denied and concluding that a full administrative record was necessary for the Court to determine whether the decision had been made in accordance with the law); Molina v. Wendt, 2004 WL 1490029, *2 (N.D. Tex. July 1, 2004) (“Although Petitioner states that he challenges the good time credit regulation itself and that the BOP is not likely to overturn existing regulations, the mere fact that Petitioner believes his administrative review will be denied does not make this remedy futile.”). Petitioner has failed to properly exhaust his administrative remedies and is barred from obtaining federal habeas relief at this time.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court grant Respondent's Motion for Summary Judgment ECF No. 26, deny the petition for writ of habeas corpus, and dismiss the petition without prejudice.
IT IS SO RECOMMENDED.
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. □[!]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must Oonly satisfy itself that there is no clear error on the face of the record in order to accept the recommendation00 Diamondv. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R Civ. P. 72 advisory committeefls 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. fl 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 2317
Florence, South Carolina 29503
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); Diomas v. Am, 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).