Opinion
CV-23-02149-PHX-SRB (DMF)
07-31-2024
Steven Luckenbill, Petitioner, v. Federal Correctional Institution - Phoenix, et al., Respondents.
HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 5 at 3)
Citation to the record as “Doc.” without a preceding case number indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-23-02149-PHX-SRB (DMF), which is this habeas matter.
On October 10, 2023, Petitioner Steven Luckenbill (“Petitioner”) filed a pro se Petitioner for Writ of Habeas Corpus § 2241(c)(3) (“Petition”). (Doc. 1) At the time of filing the Petitioner, Petitioner was confined in the Federal Correctional InstitutionPhoenix (“FCI-Phoenix”), and he presently remains so confined. (Id.) In his Petition, Petitioner claims that the Federal Bureau of Prisons (“BOP” or “Bureau”) is wrongfully refusing to credit adult education hours and First Step Act (FSA) classes Petitioner completed from December 2020 through October 2021 towards Petitioner's FSA time credits (“FSA FTCs”) and towards Petitioner's Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”) score. (Id.) Petitioner asserts he has exhausted administrative remedies. (Id.) In his Petition, Petitioner named FCI Phoenix as Respondent. (Id. at 1) Petitioner paid the filing fee in full. (Doc. 4)
The Petition was docketed by the Clerk of Court on October 16, 2023. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on October 10, 2024. (Id. at 7) This Report and Recommendation uses October 10, 2023, as the operative filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023).
As correctly explained by Respondent:
The FSA required the Bureau to create an assessment system that evaluates the risk and needs of each federal inmate, determines the recidivism risk for each inmate, and classifies each inmate as either minimum, low, medium, or high risk of recidivism. 18 U.S.C. §§ 3631, 3632(a). The Bureau developed the PATTERN scoring system to satisfy that statutory requirement.(Doc. 9 at 2, footnote 2)
On March 20, 2024, the Court substituted the unnamed Warden of FCI Phoenix as Respondent and ordered Respondents to answer the Petition. (Doc. 5 at 1-3)
On April 15, 2024, Respondent filed a Return and Answer to Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Answer”). (Doc. 9) In the Answer, Respondent's counsel requests that J. Gunther, Warden of FCI Phoenix, be substituted as Respondent in this case in place of the generic title reference to Respondent as Warden of FCI Phoenix. (Doc. 9 at 1, footnote 1) In the Answer, Respondent argues that the Petition claims are unexhausted despite Petitioner's obligation to exhaust administrative remedies and that Petitioner's claims fail on the merits. (Doc. 9)
Despite that Petitioner received an extension of time to file a reply, the time for reply expired without Petitioner filing a reply. (Docs. 10, 11)
The Answer in this matter was mailed to the correct address for Petitioner (Doc. 9), Petitioner has been receiving mail at that address in his other ongoing matter wherein Petitioner filed a pro se Petitioner for Writ of Habeas Corpus § 2241 regarding presentence incarceration credit. See Luckenbill v. Peters, et al., CV-23-2462-PHX-SRB (DMF) (“CV-23-2462”). In the other ongoing matter, Petitioner has made filings after April 15, 2024. (CV-23-2462 Docs. 16, 19)
Upon careful review of the record and applicable law, it is recommended that J. Gunther, Warden of FCI Phoenix, be substituted as Respondent in this case in place of the generic title reference to Respondent as Warden of FCI Phoenix in this case. Further, Petitioner did not exhaust his administrative remedies as he was required to do and, in any event, this sufficiently developed record does not support habeas relief. Thus, it is recommended that the Petition be denied and this matter terminated.
I. THESE HABEAS PROCEEDINGS
Petitioner is currently serving a 91 -month term of imprisonment for possession with the intent to distribute methamphetamine in violation of the United States criminal code. (Doc. 9-1 at 7, ¶ 16; Doc. 9-1 at 39; see also CV-23-2462 Doc. 15-2 at 26-32) The foregoing sentence was imposed on November 5, 2021. (Id.) At the time of filing, Petitioner was confined in FCI-Phoenix, and Petitioner presently remains so confined. (Doc. 1)
In his October 2023 Petition, Petitioner claims that BOP is wrongfully refusing to credit adult education hours and First Step Act (FSA) classes Petitioner completed from December 2020 through October 2021 towards Petitioner's FSA FTCs and towards Petitioner's PATTERN score. (Id.) Petitioner asserts that he “completed thirty-seven (37) adult education classes and two FSA classes” between December 2020 and October 2021 while housed at a federal detention facility in Englewood, Colorado. (Id. at 5) For relief, Petitioner requests that this Court order the BOP to “include any and all classes taken in Petitioner's file, and to reassess his pattern score immediately to reflect the inclusion” and to correct that Petitioner will be incarcerated “longer than warranted” if he does not receive FSA FTCs he asserts he earned from December 2020 through October 2021. (Id.) Petitioner also asserts that prior to filing the Petition, he exhausted his administrative remedies available to him, “including submitting remedy to the Federal Bureau of Prisons, Western Regional Office, via United States Postal Service Mail.” (Id. at 2)
See footnote 3, supra.
Respondent filed an Answer as ordered by the Court. (Doc. 9) Because the warden of the institution having physical custody of a petitioner is the only proper respondent in a habeas proceeding pursuant to 28 U.S.C. § 2241, see Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004), Respondent's counsel requests that J. Gunther, Warden of FCI Phoenix be substituted as Respondent in this case. (Doc. 9 at 1, footnote 1) In the Answer (Doc. 9), Respondent asserts that Petitioner's claims fail for multiple reasons, “[m]ost importantly” that “Petitioner failed to exhaust his administrative remedies prior to filing the Petition, Petitioner is statutorily precluded from earning time credits under the FIRST STEP Act of 2018 (FSA) prior to the date he commences his federal sentence, Petitioner's medium risk for recidivism level statutorily precludes him from applying any earned time credits, and Petitioner has no protected liberty interest in his classification.” (Id. at 1-2)In support of opposition to the Petition, Respondent submits a declaration with exhibits. (Doc. 9-1) The declaration and exhibits regard Petitioner's administrative appeal filings, Petitioner's sentence expiration calculations, BOP's implementation procedures for FSA FTCs, BOP's administrative review process, and inmate access to administrative review forms.
Petitioner's risk level was assessed in September 2023 and will be assessed again in September 2024. (Doc. 9-1 at 8, ¶ ¶ 19, 21)
On the same day that Respondent filed its Answer, Petitioner's letter requesting status of the matter and requesting an extension of time for his next filing was filed with the Court. (Docs. 9, 10) The Court treated Petitioner's letter as a motion and granted Petitioner's motion, including granting Petitioner an extension for filing a reply in support of his Petition. (Doc. 11) Petitioner did not file a reply in support of the Petition, and the time to do so has expired. (Id.)
See footnote 4, supra.
II. EXHAUSTION BEFORE 28 U.S.C. § 2241 PETITION
Federal inmates have two avenues for pursuing habeas corpus relief. A challenge to a federal prisoner's conviction or sentence can be raised via a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. A habeas petition challenging the “manner, location, or conditions of a sentence's execution” must be brought pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Here, the Petition is brought under Section 2241 and is alleged to regard the “manner, location, or conditions” of the execution of Petitioner's sentence.
As a general matter, an inmate must exhaust his administrative remedies before filing a lawsuit. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). It is true that administrative exhaustion is not statutorily required by 28 U.S.C. § 2241. See Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing McKart v. United States, 395 U.S. 185, 194 (1969)). However, courts generally require that administrative remedies be exhausted before Section 2241 habeas proceedings because it is usually more efficient for the administrative process to go forward without interruption than to permit parties to seek aid from the courts at various intermediate stages. Id.; see also McKart, 395 U.S. at 194. As explained by the Ninth Circuit in Laing:
Under the doctrine of exhaustion, “no one is entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been exhausted.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (citation and internal quotation marks omitted). Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement. El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 746 (9th Cir.1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir.1981).370 F.3d at 997-98.
Courts may require prudential exhaustion if “‘(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.'” Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (citations omitted). Even when exhaustion is prudential and courts have discretion to waive the exhaustion requirement, a key consideration in exercising this discretion is whether waiving the exhaustion requirement encourages the inmate to bypass the administrative scheme. Laing, 370 F.3d at 1000.
When a petitioner does not exhaust administrative remedies and administrative remedies remain available, “a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (citations omitted). Exhaustion may be excused if pursuing an administrative remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993).
If a prisoner is unable to obtain an administrative remedy because of his failure to administratively appeal in a timely manner, then the petitioner has procedurally defaulted his habeas corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)). If a claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged violation of law. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492 (1986) (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906-08 (9th Cir. 1986) (cause and prejudice test applied to pro se litigants).
The BOP has a process for inmates who want to challenge an aspect of their confinement, including implementation of the FSA FTCs and PATTERN scoring for recidivism risk assessment. See 28 C.F.R. § 542.10 et seq.; 28 C.F.R. § 542.14; Doc. 9-1 at 3, 53-73. Here, the record is clear that Petitioner has not properly exhausted his administrative remedies with respect to FSA FTCs and has not properly exhausted his administrative remedies with respect to PATTERN scoring. (Doc. 9-1 at 6-7, 16, 34-36; see also Doc. 1-1) Respondent has provided a declaration explaining the four-tiered administrative review/appeal process and adequate access to such by inmates at BOP facilities such as the one in which Petitioner is housed. (Doc. 9-1 at 3-5) The declaration submitted by Respondent further states that Petitioner has filed multiple administrative remedies and appeals since January 2005 (including multiple remedies/appeals in 2022 and 2023), but that “Petitioner has not properly filed an appeal to the Office of General Counsel (BP-11) on any subject matter while he has been in the custody of the Bureau as each attempt annotated above was rejected for procedural deficiencies.” (Id. at 5-6) The materials submitted by the parties support the declarant's statements. (Doc. 1-1; Doc. 9-1) There is no specific or credible evidence that Petitioner lacked available administrative remedies, and nothing in the record suggests that the administrative exhaustion requirement should be waived. Allowing Petitioner to raise the Petition issues first with the Court before properly following and completing the BOP administrative remedy process would encourage Petitioner and other inmates to deliberately bypass some or all of the BOP administrative remedy process.
In sum, the BOP should have been given a proper and complete administrative opportunity to address Petitioner's claims regarding earning and application of FSA FTCs and regarding Petitioner's PATTERN scoring. Petitioner has not shown cause or other sufficient excuse for his failure to previously and properly exhaust his administrative remedies. Thus, the Petition is subject to dismissal for failure to exhaust administrative remedies prior to filing the Petition. Nevertheless, the Court will address the Petition on the merits. In doing so as set forth below, the Court concludes that the Petition should be denied on the merits on this sufficiently developed record and this matter terminated.
III. PETITIONER'S CLAIMS FAIL ON THE MERITS
A. Overview
A habeas petition challenging the “manner, location, or conditions of a sentence's execution” must be brought pursuant to 28 U.S.C. § 2241. Hernandez, 204 F.3d at 864. Here, the Petition is brought under Section 2241 and the claims are alleged to regard the “manner, location, or conditions” of the execution of Petitioner's sentence. Although a district court has no jurisdiction over the BOP's discretionary designation decisions, it does have jurisdiction in Section 2241 proceedings to decide whether the Bureau of Prisons acted contrary to established federal law, violated the Constitution, or exceeded its statutory authority. Compare Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011), with Close v. Thomas, 653 F.3d 970, 973-74 (9th Cir. 2011).
By way of context to Petitioner's claims, the FSA was enacted on December 21, 2018 (P.L. 115-391), and addresses the reentry of incarcerated individuals into society. As part of the FSA, Congress directed the Attorney General to develop a risk and needs assessment system, to appropriately direct programming and programming incentives by “determining] the recidivism risk of each prisoner” and classifying “each prisoner as having minimum, low, medium, or high risk for recidivism[.]” 18 U.S.C. § 3632(a); see also 18 U.S.C. § 3631. To determine a prisoner's risk for recidivism, the BOP utilizes the PATTERN scoring system. See LaPuente v. Derr, 2023 WL 3821136, at *4 (D. Haw. June 5, 2023). The FSA also included creation of an evidence-based recidivism reduction program that incentivizes prisoners to participate in and complete programs and productive activities by allowing certain prisoners to earn “10 days of time credits ...” and allowing prisoners classified as a minimum or low risk of recidivism to earn “an additional 5 days of time credits for every 30 days of successful participation.” 18 U.S.C. § 3632(d)(4). These time credits are referred to as “FSA FTCs” throughout this report and recommendation. There are other separate incentives in addition to time credits, such as phone and visitation privileges. 18 U.S.C. § 3632(d)(1), (2), & (3).
FSA's provisions in P.L. 115-391 included new statutory sections as well as amendments/additions to existing statutes. For example, 18 U.S.C. § 3632 was enacted
FSA FTCs are credits towards placement into prerelease custody, such as home confinement or at a residential reentry center placement and also allow BOP to begin supervised release early in some circumstances rather than or in addition to prerelease custody. See 18 U.S.C. §§ 3632(d)(4), 3624(g)(2), & 18 U.S.C. § 3624(g)(3).
Pursuant to the FSA, FSA FTCs “shall be applied toward time in prerelease custody or supervised release” and “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). Under 18 U.S.C. § 3624(g) of the FSA, an “eligible prisoner” for the application of FSA FTCs to prerelease custody or supervised release must meet four criteria:
In 2022, the BOP implemented its final agency rules regarding the earning and awarding of FSA FTCs. See 28 C.F.R. §§ 523.40-523.44; Doc. 13-1 at 21.
(A) the prisoner must have already earned FTCs;
(B) the prisoner must have demonstrated “recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of from P.L. 115-391, and subsection (g) of 18 U.S.C. § 3624 was added from P.L. 115-391.
imprisonment”;
(C) the prisoner “has had the remainder of the prisoner's imposed term of imprisonment computed under applicable law”; and
(D) the prisoner has either (I) “been determined under the System to be a minimum or low risk to recidivate pursuant to the last 2 reassessments of the prisoner,” or (II) has had a petition to be transferred to prerelease custody or supervised release approved by the warden after the warden has determined the prisoner meets certain criteria.See 18 U.S.C. § 3624(g)(1)(A)-(D).
Specifically, the Warden must have determined that:
(aa) the prisoner would not be a danger to society if transferred to prerelease custody or supervised release;
(bb) the prisoner has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities; and
(cc) the prisoner is unlikely to recidivate[.]18 U.S.C. § 3624(g)(1)(D)(II).
B. Petitioner's FSA FST Claim Fails on the Merits
The first of Petitioner's two claims concerns Petitioner's eligibility to earn FTCs under the FSA from December 2020 through October 2021. (Doc. 1) This timeframe is before Petitioner was federally sentenced on November 5, 2021. (Doc. 9-1 at 7, ¶ 16; Doc. 9-1 at 39; see also CV-23-2462 Doc. 15-2 at 26-32) Upon review, the Court finds that the record is sufficiently developed, and an evidentiary hearing is unnecessary for resolving this Petition claim.
Contrary to Respondent's arguments, neither the inapplicability of the Administrative Procedures Act, See 18 U.S.C. § 3625, nor the Court's lack of jurisdiction to review BOP discretionary designation decisions undermines the Court's Section 2241 jurisdiction to evaluate whether the Bureau of Prisons acted contrary to established federal law, violated the Constitution, or exceeded its statutory authority in the manner, location, or condition of Petitioner's sentence in light of the particular issue before the Court of whether Petitioner was eligible to earn FSA FTCs before he was federally sentenced in November 2021.
As a matter of law, Petitioner was not statutorily eligible to earn FSA FTCs from December 2020 through October 2021. FSA FTCs cannot be earned prior to commencement of the term of imprisonment. 18 U.S.C. § 3632(d)(4)(B)(ii) (inmate may not earn time credits “for an evidence-based recidivism reduction program that the prisoner successfully completed during official detention prior to the date that the prisoner's sentence commences under section 3585(a)”); 28 C.F.R. § 523.42(a) (inmate may earn FSA FTCs when term of imprisonment commences); 18 U.S.C. § 3585(a) (sentence commences “on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served”). Petitioner was not federally sentenced until November 5, 2021, which is after the timeframe at issue in Petitioner's claim, (Doc. 9-1 at 7, ¶ 16; Doc. 9-1 at 39; see also CV-23-2462 Doc. 15-2 at 26-32) and a sentence cannot commence until it is imposed. See 18 U.S.C. § 3632(d)(4)(B)(ii); 18 U.S.C. § 3585(a); 28 C.F.R. § 523.42(a); Doc. 9-1 at 7, ¶ 17. Petitioner's federal sentence commenced on March 30, 2022, when Petitioner was received into federal custody from state custody to begin serving the federal sentence imposed on November 5, 2021. (Doc. 9-1 at 7, ¶ 16; Doc. 9-1 30-35)
As a matter of law, Petitioner was not eligible to earn FSA FTCs while housed in a federal facility prior to the commencement of his sentence. Thus, Petitioner's claim regarding earning FSA FTCs for the timeframe from December 2020 through October 2021 fails on the merits.
C. Petitioner's PATTERN Scoring Claim Fails on the Merits
Petitioner's second claim is that that BOP did not properly calculate Petitioner's PATTERN score because the PATTERN score fails to take into account programming in which Petitioner participated from December 2020 through October 2021. (Doc. 1) In response to this claim, Respondent correctly argues that Petitioner does not have a liberty interest in his PATTERN scoring. (Doc. 9 at 10-12) Respondent accurately explains that:
the FSA “gives the Attorney General discretion in assessing each prisoner's recidivism risk level and in determining when a prisoner is minimum or low recidivism risk.” Newell v. Fikes, 2023 WL 2543092, at *3 (S.D. Ga. Feb. 21, 2023). “Thus, no constitutionally protected liberty interest is implicated
when the BOP calculates a prisoner's PATTERN score and resulting recidivism risk level.” Id. See also Prince v. Fikes, 2021 WL 2942311, at *3 (D. Minn. June 16, 2021) (holding that “federal prisoners have no constitutional or inherent right to receive a particular security or custody classification,” including a “recidivism risk level”), adopted in part, 2021 WL 2936656, at *1 (D. Minn. July 13, 2021)(Doc. 9 at 11)
Further, due process protections do not extend to “prisoner classification and eligibility for rehabilitative programs in the federal system” as “Congress has given federal prison officials full discretion to control these conditions of confinement.” Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); see also Reeb v. Thomas, 636 F.3d at 1227 (individual determinations pertaining to eligibility for early release are not judicially reviewable); Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 827 (9th Cir. 2002) (noting that relief under § 2241 is not available to challenge purely discretionary decisions), amended, 337 F.3d 1023 (9th Cir. 2003).
Thus, Petitioner's habeas claim based on PATTERN scoring fails as a matter of law on the merits.
Also, as this claim in the Petition is dependent on Petitioner's eligibility to earn FSA FTCs from December 2020 through October 2021, this claim would fail even if it were legally viable. See section III(B), supra.
IV. CONCLUSION
As requested by Respondent's counsel, J. Gunther, Warden of FCI Phoenix, should be substituted as Respondent in this case in place of the generic title reference to Respondent as Warden of FCI Phoenix. Petitioner did not exhaust his administrative remedies, nor has Petitioner sufficiently demonstrated excuse for failing to properly exhaust his administrative remedies. This is reason to dismiss the Petition. In any event, Petitioner's claims fail on the merits based on this sufficiently developed record. Thus, the Petition should be denied without an evidentiary hearing, and this matter should be terminated.
Accordingly, IT IS RECOMMENDED that J. Gunther, Warden of the Federal Correctional Institution in Phoenix, Arizona (FCI Phoenix) be substituted as Respondent in this case in place of the generic title reference to Respondent as Warden of FCI Phoenix, and that the Clerk of Court be directed to update the docket accordingly, IT IS FURTHER RECOMMENDED that Petitioner Steven Luckenbill's pro se Petition for Writ of Habeas Corpus § 2241(c)(3) (Doc. 1) be denied and that the Clerk of Court be directed to terminate this matter.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.