Opinion
NO. 3-03-CV-2234-P
January 12, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Timothy Robert Meyer, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be dismissed in part for failure to exhaust administrative remedies and denied in part.
I.
On October 11, 2001, petitioner was arrested for a state parole violation. At the time of his arrest, petitioner was in possession of stolen explosives. He was subsequently charged by a federal grand jury with a violation of 18 U.S.C. § 842(h). On June 25, 2002, the U.S. Marshals Service assumed temporary custody of petitioner pursuant to a writ of habeas corpus ad prosequendum. Petitioner subsequently pled guilty to the federal charge and was sentenced to 72 months confinement, followed by supervised release for a period of three years. United States v. Meyer, No. 02-CR-081(03) (W.D. Tex. Sept. 25, 2002). The judgment does not specify whether petitioner's federal sentence runs concurrent with or consecutive to his state sentence. Immediately following his federal sentencing on September 25, 2002, petitioner was returned to state custody where he remains today.
Federal prison regulations provide that time spent in federal custody pursuant to a writ of habeas corpus will not, in itself, be considered for the purpose of determining custody credits. This is because the primary reason for custody is not the federal charge. Rather, the federal court merely "borrows" the prisoner under the provisions of the writ for the purpose of court appearance. See Sentencing Computation Manual, Policy Statement 5880.28 (CCCA 1984).
By this motion, petitioner seeks credit on his federal sentence from October 11, 2001, the date of his arrest, and maintains that his federal and state sentences should run concurrently. On November 13, 2003, written interrogatories were sent to petitioner in order to determine whether his sentence credit claim had been presented to the Bureau of Prisons. Petitioner filed his interrogatory answers with the district clerk on December 29, 2003. The court now determines that this case should be dismissed in part and denied in part.
Petitioner originally filed his motion in the Waco Division of the United States District Court for the Western District of Texas. By order dated September 5, 2003, that court denied the motion because "it should have been filed in the Northern District where Defendant is incarcerated." United States v. Meyer, No. 02-CR-081 (03) (W.D. Tex. Sept. 5, 2003).
II.
A federal prisoner must typically exhaust all administrative remedies before seeking judicial relief. See McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291 (1992). The Supreme Court has long recognized that exhaustion "serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency." Id., 112 S.Ct. at 1086. These concerns apply with particular force "when the action under review involves the exercise of the agency's discretionary power or when the agency proceedings in question allow the agency to apply its special expertise." Id. (citing cases). Moreover, "[w]hen an agency has the opportunity to correct its own errors, a judicial controversy may well be mooted, or at least piecemeal appeals may be avoided." Id. (citing cases). See also Garner v. U.S. Dep't of Labor, 221 F.3d 822, 825 (5th Cir. 2000), cert. denied, 121 S.Ct. 1230 (2001).
The exhaustion requirement applies to the computation of sentence credit awards. See, e.g. Rodriguez v. Lamar, 60 F.3d 745, 747 (11th Cir. 1995); United States v. Pelaez, 930 F.2d 520, 524 (6th Cir. 1991); United States v. Gabor, 905 F.2d 76, 78 n. 2 (5th Cir. 1990); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984), cert. denied, 105 S.Ct. 1403 (1985); Barron-Rodriguez v. Malisham, 2003 WL 21246072 at * 1 (N.D. Tex. Feb. 11, 2003). The Bureau of Prisons has established an Administrative Remedy Program whereby inmates can "seek formal review of an issue which relates to any aspect of their confinement." 28 C.F.R. § 542.10. A prisoner must present his claim to the prison warden and appeal any adverse decision to the BOP Regional Director and General Counsel. Id. § 542.15(a). Only then can a prisoner seek relief in federal court. See Lundy v. Osborn, 555 F.2d 534, 535 (5th Cir. 1977).
Petitioner acknowledges that he never presented his sentence credit claim to the warden or BOP officials as required by federal prison regulations. ( See Spears Quest. #1). Absent evidence of an unreasonable or indefinite timeframe for administrative action, lack of administrative authority to grant effective relief, or the futility of exhaustion due to agency bias, the BOP must be given an opportunity to consider the issue before this court exercises habeas jurisdiction. This claim should be dismissed without prejudice for failure to exhaust administrative remedies. See Sanchez v. Wendt, 2003 WL 22327877 at *2-3 (N.D. Tex. Oct. 8, 2003), citing McCarthy, 112 S.Ct. at 1087-88.
III.
Petitioner also seeks to have his federal sentence run concurrently with his state sentence. This claim implicates 18 U.S.C. § 3584, which provides, in pertinent part:
(a) If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively . . .
* * * *
(b) The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).18 U.S.C. § 3584(a) (b). In its original judgment, the district court did not specify whether petitioner's federal sentence should run concurrent with or consecutive to his state sentence. To the extent that petitioner contends the district court abused its discretion by ordering him to serve consecutive sentences, such a claim could have been raised on direct appeal. Petitioner has failed to demonstrate "cause" for his procedural default or "actual prejudice" resulting from the error. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982) (collateral challenge may not substitute for direct appeal). As a result, he is precluded from raising this claim on collateral review. See also Beasley v. Wendt, 2003 WL 22952226 at *2 (N.D. Tex. Dec. 11, 2003).
Petitioner did not appeal his federal conviction and sentence.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed in part and denied in part. His sentence credit claim should be dismissed without prejudice for failure to exhaust administrative remedies. In all other respects, the application should be denied.