Opinion
3:23-cv-34-KAP
03-02-2023
FRANCISCO LORA, Petitioner v. MICHAEL UNDERWOOD, WARDEN, F.C.I. LORETTO, Respondent
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO,UNITED STATES MAGISTRATE JUDGE
This is filed as a recommendation because not all parties have consented to Magistrate Judge jurisdiction. Petitioner Lora's petition for a writ of habeas corpus pursuant to 28 U.S.C.§ 2241 should be dismissed before service, see 28 U.S.C.§ 2243, without prejudice to refiling after exhaustion of administrative remedies.
Report
Lora is serving a federal sentence at F.C.I. Loretto that the Bureau of Prisons projects to result in his release in 2027. Petition, Exhibit 4a. Lora may be a removable alien, and the Department of Homeland Security has lodged a detainer against him. Petition, Exhibit 3. Lora seeks a writ directing the Bureau of Prisons to award him earned time credits (ETC) for programming completed under the applicable provisions of the First Step Act of 2018, Pub.L.No. 115-391, 132 Stat. 5208 (December 21, 2018). 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 eligible inmates who participate in these programs credits that can be applied toward time in prerelease custody or supervised release.
Lora alleges that the Bureau of Prisons has not awarded him ETC because it does not consider a removable alien subject to a detainer to be eligible to have ETC applied to his sentence. As have several other petitioners at Loretto, Lora argues that this is contrary to the letter and spirit of the FSA, which makes aliens ineligible if they are subject to a final order of removal. See 18 U.S.C.§ 3632(d)(4)(E)(i).
Lora admits that he did not exhaust his administrative remedies before filing the habeas petition. The Bureau of Prisons' three-level administrative remedy system culminates with an appeal to the Bureau of Prisons Office of General Counsel. See 28 C.F.R. §§ 542.10-19. Lora filed his appeal there on February 8, 2023, and it was still pending when he submitted his Petition here less than two weeks later.
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 re-entry center, must exhaust available administrative remedies first, see 28 C.F.R.§ 542.10-19, although an exception exists (which Lora invokes) for matters 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). Review in the Bureau of Prisons' 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).
I know from review of similar petitions from Loretto that on February 6, 2023, the Bureau of Prisons issued a change to its implementation of the FSA and no longer considers inmates ineligible solely because they have DHS detainers lodged against them. See Notice of Change to BOP's Program Statement on FSA Time Credits, ECF no. 13 in Adeyemi v. Underwood, Case No. 3:22-cv-134-SLH-KAP (W.D.Pa.). If the BOP's change in policy does not moot Lora's petition, at the least Lora should exhaust any remaining issues by fully using the administrative process. Courts have the power in a habeas action to review Bureau of Prisons' decisions, but having courts make those decisions in the first instance wastes time and resources, especially since Lora, according to his Petition and the exhibits thereto, is several years from being released even if all the ETC that he suggests he is eligible for were applied to his sentence computation. The petition should be dismissed without prejudice.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. The parties are advised that 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).