Opinion
3:22-cv-176-KRG-KAP
05-19-2023
BEN McCORMACK, Petitioner v. MICHAEL UNDERWOOD, WARDEN, F.C.I. LORETTO, Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Petitioner McCormack filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.§ 2241, Petition, ECF no. 1, see also Supplement, ECF no. 3, to which the respondent has filed a Response, ECF no. 9. The petition should be denied without prejudice.
Report
Petitioner McCormack is serving a 121-month federal sentence at F.C.I. Loretto that is projected to result in his release in April 2024. Petitioner's petition, filed in October 2022, seeks a writ directing the Bureau of Prisons to award him earned time credits (ETC, also referred to by the parties as FTC) 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.
McCormack asserts, Petition at ¶8, that “I need these FTC's [sic] now because the only way to get 12 months in the Residential Re-Entry Center. I won't be able to get a RRC date of 1-23-2023 unless those credits are applied now.” Petitioner indisputably did not exhaust his administrative remedies before filing the habeas petition: as the Response asserts and the correspondence that petitioner includes as exhibits to his Supplement shows, petitioner filed his petition after he had initiated agency review by filing a request for an administrative remedy, but before his appeal to the Bureau of Prisons Northeast Regional Office was decided (on December 12, 2022, according to Response, Exhibit 1, Baker-Dykstra Declaration at ¶6) and therefore before beginning what would have been the final level of administrative review when relief is not afforded at the regional level, namely an appeal to the Bureau of Prisons Office of General Counsel. See 28 C.F.R. §§ 542.10-19.
In general, 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 reentry center, must exhaust available administrative remedies first, see 28 C.F.R.§ 542.1019, although an exception exists 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).
This is a textbook example showing why dispensing with the requirement of administrative exhaustion is unwise. As of May 2023, the Bureau of Prisons considered petitioner to have earned 856 program days, which it translated into 280 days of ETC that the Bureau of Prisons applied to move petitioner's release to supervised release date (assuming that Good Time Credits, another incentive program not at issue in this petition, continue to accrue as expected) from January 2025 to April 2024. Because of a medical hold that arose in April 2023, however, the Bureau of Prisons will not consider moving petitioner to a residential re-entry center (RRC) at this time. Response, Exhibit 2, Fannin Declaration at ¶¶9-12.
In other words, the controversy alleged in the petition may well be moot, and at the least has nothing to do with the reason why the respondent is not currently considering petitioner for placement in a RRC. At the least, McCormack must exhaust any complaint about that issue by fully using the administrative process before filing a petition. Courts have the power under the habeas corpus statute to review Bureau of Prisons' decisions, but using habeas corpus to ask courts to make those decisions in the first instance (or worse, to jump in as an ombudsman to resolve issues as they occur to the parties) wastes judicial time and resources as well as agency time and resources. Petitioners may not care about that, but to function courts must. 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).