Opinion
Civil Action 3:23-CV-214 (GROH)
04-18-2024
HANNIBAL MOORE, Petitioner, v. S. LOVETT, UNITED STATES ATTORNEY GENERAL, and F.B.O.P., Respondents.
REPORT AND RECOMMENDATION
ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On October 10, 2023, the Petitioner, an inmate who was then incarcerated at USP Hazelton, acting pro se, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241, challenging the calculation of his sentence by the Bureau of Prisons (“BOP”). ECF No. 1 at 1, 5. On October 17, 2023, the Petitioner paid the filing fee. ECF No. 4.
According to the Bureau of Prisons' Inmate Locator page, and the docket, the Petitioner is currently incarcerated at Atwater USP in Atwater, California. https://www.bop.gov/inmateloc/.
All ECF numbers cited herein are from the instant case, 3:23-CV-214, unless otherwise noted.
The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the Petition be dismissed without prejudice.
II. FACTUAL AND PROCEDURAL HISTORY
A. Petition Filed Under 28 U.S.C. § 2241
The Petitioner filed this petition for a writ of habeas corpus under 28 U.S.C. § 2241. In his sole ground for relief, the Petitioner claims that the BOP improperly calculated his sentence when it refused to give him concurrent credit for his 37-month sentence imposed in the Northern District of Alabama, case number 2:19-CR-40, and 80-month sentence imposed in the Southern District of Alabama, case number 1:19-CR-28. ECF No. 1 at 5. The Petitioner contends that the BOP's refusal to grant him concurrency in his sentences violates the judgment imposed in 2:19-CR-40. Id.
The Petitioner was charged in two separate indictments with felony activity in both the Northern and Southern Districts of Alabama on January 31, 2019. On May 6, 2020, the Petitioner entered a guilty plea pursuant to a written plea agreement in the Northern District of Alabama to Count 2 of the superseding indictment which charged him with being a felon in possession of a firearm. N.D. Ala. 2:19-CR-40, ECF No. 73. The plea agreement included a stipulation to a 37-month sentence. Id. On May 14, 2020, the Petitioner was sentenced in accordance with his plea to 37 months of incarceration. N.D. Ala. 2:19-CR-40, ECF No. 79 at 2. The judgment makes three recommendations to the Bureau of Prisons, the first of which is that “the sentence in this case run concurrently to any other yet-to-be imposed sentence.” Id. The Petitioner proceeded to trial in his case in the Southern District of Alabama, and was convicted by a jury on December 8, 2020, of being a felon in possession of a firearm, as charged in Count 1 of the superseding indictment. S.D. Ala. 1:19-CR-28, ECF No. 58. On June 28, 2021, the Petitioner was sentenced to 80 months of imprisonment. S.D. Ala. 1:19-CR-28, ECF No. 86. The judgment is silent as to whether the 80-month sentence imposed in the Southern District was intended to be served concurrently with the 37-month sentence imposed in the Northern District. Id. A review of the sentencing transcript shows it likewise is silent as to whether the sentences should be served concurrently with or consecutively to one another. S.D. Ala. 1:19-CR-28, ECF No. 99 at 43:18-46:8.
The Petitioner contends that he filed an administrative remedy, and asserts that the Designation and Sentence Computation Center (“DSCC”) “stated my time was computed correctly.” ECF No. 1 at 7-8. For relief, the Petitioner asks for the Court to recalculate his sentences, order his sentences to run concurrently with one another, and direct his release date to be in 2024, instead of in 2027. Id. at 8.
B. Respondent's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment
Following the October 18, 2023, issuance of an Order to Show Cause, the Respondent filed a Motion to Dismiss, or in the Alternative, for Summary Judgment, with a memorandum and exhibits in support thereof on November 15, 2023. ECF No. 9, 10, 10-1 through 10-12. Therein, the Respondent argues that the Petitioner is not entitled to relief because: (1) he failed to exhaust his administrative remedies prior to filing his habeas corpus petition; and (2) the Petitioner's sentence was computed in accordance with federal law, and includes all credit permissible under law. ECF No. 10. The Respondent asserts that the Petitioner's current 80-month federal sentence from the Southern District of Alabama commenced on June 28, 2021, the date it was imposed. Id. at 12. Further, the Petitioner's prior 37-month sentence from the Northern District of Alabama commenced on May 14, 2020, and with the inclusion of seven terms of jail credit, was satisfied on March 4, 2021, approximately three months prior to the imposition of his sentence in the Southern District of Alabama. Id.
The Respondent states that the Petitioner received 665 days of prior jail credit which was applied to his 37-month sentence for the Northern District of Alabama, from the following dates: October 18, 2016, November 12, 2016, June 17, 2017 - June 20, 2017, October 22, 2017 - October 24, 2017, October 30, 2017 - November 6, 2017, June 11, 2018 - August 8, 2018; and October 3, 2018 - May 13, 2020. ECF Nos. 10 at 13, 10-1 at 5, 10-8 at 2. Those periods of incarceration were applied to his sentence in the Northern District because all the relevant state charges were either dismissed, nolle prossed, or he received probation for the charges, meaning those dates were not applied to any other state sentence. ECF Nos. 10 at 4-5, 10-1 at 4-5, 10-2.
The Respondent argues that the BOP has correctly calculated the Petitioner's sentence, including all allowable credit. Id. at 11-13. The Respondent asserts that the BOP, not the courts, determines the date a defendant's sentence commences and whether the defendant should receive credit for any time spent in custody. Id. at 11. Further, the Respondent states that the Petitioner's sentence in the Southern District of Alabama properly commenced on June 28, 2021, the date sentence was imposed, and after he discharged his sentence imposed in the Northern District of Alabama. Id. at 1112. Because the Petitioner's current sentence was imposed on June 28, 2021, and based on 18 U.S.C. § 3585(a) and BOP Program Statement 5880.28, the Respondent argues “that sentence could not commence prior to that date.” Id. at 12. Further, because the Petitioner's sentence in the Northern District of Alabama was satisfied on March 4, 2021, three months before his sentence was imposed in the Southern District. The two sentences “cannot run concurrently as one sentence expired before the other commenced.” Id. at 12. Finally, the Respondent states that it is not possible for the BOP to change his release date from 2027 to 2024, because all his jail credit prior to the discharge of his Northern District of Alabama sentence on March 4, 2021, was credited towards that sentence, and thus that time cannot also be credited to his current term of imprisonment from the Southern District of Alabama. Id. at 13.
A review of the computation sheet of the Public Information Inmate Data sheet for the Petitioner shows that his computation began on June 28, 2021, and that he received jail credit starting on March 5, 2021, through June 27, 2021. ECF No. 10-10 at 2. That 115-day period started the day after the Petitioner discharged his Northern District of Alabama sentence, and ended the day before his sentence was imposed in the Southern District of Alabama.
In support of its exhaustion argument, the Respondent filed a copy of the Petitioner's six administrative remedy submissions to the facility, regional and central offices:
1. Remedy ID number 1110829-F1, filed at the facility on February 11, 2022, regarding “credit for time spent in jail” [ECF No. 10-12 at 2];
2. Remedy ID number 1110829-R1, filed at the regional office on November 4, 2022, regarding “credit for time spent in jail” [Id.];
3. Remedy ID number 1169895-F1, filed at the facility on July 27, 2023, regarding “sentence correction” [Id. at 3];
4. Remedy ID number 1172764-F1, filed at the facility on August 21, 2023, regarding “sentence request” [Id.];
5. Remedy ID number 1172764-R1, filed at the regional office on September 5, 2023, regarding “sentence request” [Id. at 4]; and
6. Remedy ID number 1172764-A1, filed at the central office on November 2, 2023, regarding “sentence request” [Id. at 4].
The Respondent asserts that a response to the Petitioner's Central Office appeal, Remedy ID number 1172764-A1, would be due by January 1, 2024. ECF No. 10 at 10. Further the Respondent asserts that the Petitioner filed the instant petition ten (10) days before the Regional Office response to Remedy ID number 1172764-R1, and 23 days before filing his appeal to the Central Office. Id. at 11.
Finally, the Respondent argues that the Petitioner does not dispute his failure to exhaust, nor has he claimed that he was unable to, or that the process was unavailable to him. Id. at 10.
C. Petitioner's Response to the Motion to Dismiss or for Summary Judgment
Following the granting of three motions for extensions of time to respond, on February 6, 2024, the Petitioner filed a response styled, “Reply/Motion to Strike.” ECF No. 23. Therein the Petitioner contends that he was indicted on both Alabama federal cases on the same date, and that his pre-trial custody was for both cases. Id. at 1-2. Further, he asserts that he was in official detention at five different facilities “on both cases prior to the prison sentence expiring” in his 37-month sentence imposed in the Northern District of Alabama. Id. at 2. The Petitioner argues that the first court to impose sentence, the Northern District of Alabama, specified that his sentence in that district was to be served concurrently with any other sentence yet to be imposed, and thus the second sentence imposed in the Southern District of Alabama should have been ordered to be served entirely concurrently with the first sentence. Id. at 3 - 4. According to the Petitioner, “[t]he BOP changed the structure of [his] sentence imposed by the judge of the Northern District of Alabama and undermin[ed] that judge's reasoning.” Id. at 4. Further, the Petitioner contends that the BOP has a duty to execute the judgment imposed by the sentencing court, but that:
The BOP took advantage of the delay in the court of the Southern District imposing its sentence after he was found guilty . . . in the second federal case [in order] to evade acknowledgement of the Northern District Court order [directing] that sentence [to be served] concurrent[ly] with any other yet to be imposed sentence through manipulation of jail credit on the first case.Id. at 5-6. The Petitioner's response states that “he did exhaust the administrative remedy process, which the BOP is yet to respond to his Central Office final appeal.” Id. at 7.
D. Respondent's Reply
The Respondent filed a reply on February 20, 2024, which asserts that the Petitioner's federal cases cannot run concurrently with one another because his 80-month sentence imposed in the Southern District of Alabama was not imposed until his three months after he satisfied his 37-month sentence imposed in the Northern District of Alabama. ECF No. 25 at 1-2. Further, the Respondent contends that the Petitioner received all jail credit to which he was entitled, and which was applied to his Northern District of Alabama sentence. That sentence from the Northern District was satisfied prior to the imposition of the sentence in the Southern District, and thus he is not entitled to have that time applied to his Southern District of Alabama sentence. Id. at 2.
III. STANDARD OF REVIEW
A. Review of Petitions for Relief
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and this Court's local rules, this Court is authorized to review such petitions for relief and submit findings and recommendations to the District Court. This Court is charged with screening Petitioner's case to determine if “it plainly appears from the petition, any attached exhibits, that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts.
Pursuant to Rule 1(b), “[t]he district court may apply any or all of these rules to a habeas corpus petition not covered by Rule 1(a).” Rule 1, Rules Governing Section 2254 Cases in the United States District Courts. Rule 1(a) provides that:
These rules govern a petition for a writ of habeas corpus filed in a United States district court under28 U.S.C. § 2254 by:
(1) a person in custody under a state-court judgment who seeks a determination that the custody violates the Constitution, laws, or treaties of the United States; and
(2) a person in custody under a state-court or federal-court judgment who seeks a determination that future custody under a state-court judgment would violated the Constitution, laws, or treaties of the United States.
B. Pro Se Litigants.
Courts must read pro se allegations in a liberal fashion and hold those pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.490 U.S. at 327.
The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided, “The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."
C. Habeas Corpus Petitions Filed Pursuant to 28 U.S.C. § 2241
A petition filed pursuant to § 2241 is the appropriate method for a prisoner to challenge the fact and length of his confinement, but generally not the conditions of that confinement. Preiser v. Rodriguez, 411 U.S. 475, 498 - 499 (1973). “[I]mmediate release or speedier release from [ ] confinement [is] the heart of habeas corpus.” Id. at 498.
D. Exhaustion of Administrative Remedies
The Bureau of Prisons' Program Statement (BOP PS) 1330.18 § 542.10 et seq., addresses the Bureau's Administrative Remedy Program, and directs inmates on the processes necessary to exhaust their administrative remedies by filing four mandatoryremedies: (1) an informal resolution (BP-8); (2) an administrative remedy at the facility (BP-9); (3) an appeal to the regional office (BP-10); and (4) a final appeal to the central office (BP-11). Failure to complete all four mandatory remedies is fatal to a claim based on the inmate's failure to exhaust administrative remedies.
See https://www.bop.gov/policy/progstat/1330 018.pdf.
Inmates who are incarcerated in Community Corrections Centers (CCCs) are not required to attempt informal resolution. BOP PS 1330.18 § 542.13.b.
Many BOP institutional handbooks refer to the Informal Resolution Form as the BP-8 form. See:
1. FCI Waseca https://www.bop.gov/locations/institutions/was/was ao handbook eng 031517.pdf;
2. FCI Oxford https://www.bop.gov/locations/institutions/oxf/OXF aohandbook.pdf;
3. FPC Schuylkill https://www.bop.gov/locations/institutions/sch/SCH camp aohandbook.pdf;
4. USMC Springfield https://www.bop.gov/locations/institutions/spg/spg ao handbook050917.pdf;
5. USP Lewisburg https://www.bop.gov/locations/institutions/lew/LEW smu aohandbook.pdf;
6. FDC Tallahassee https://www.bop.gov/locations/institutions/tal/TAL fdc aohandbook.pdf;
7. FCI Fort Dix https://www.bop.gov/locations/institutions/ftd/FTD aohandbook.pdf; and
8. USP/SCP McCreary https://www.bop.gov/locations/institutions/mcr/MCR aohandbook.pdf.
The Fourth Circuit recognizes the process that inmates must follow to exhaust administrative remedies:
The BOP grievance process is set forth at 28 C.F.R. § 542.13-.15 (2009). First, an inmate normally must present his complaint informally to prison staff using a BP-8 form. If the informal complaint does not resolve the dispute, the inmate may make an “Administrative Remedy Request” to the prison Warden using a BP-9 form. The BP-8 and BP-9 forms are linked. Both forms involve a complaint arising out of the same incident and both must be submitted within twenty calendar days of the date of that incident. 28 C.F.R. § 542.14(a). If the Warden renders an adverse decision on the BP-9, the inmate
may appeal to the Regional Director within twenty calendar days of the date the Warden signed the response, using a BP-10 form. 28 C.F.R. § 542.15(a). The inmate may appeal an adverse decision by the Regional Director to the Central Office of the BOP using a BP-11 form.Id. Hill v. Haynes, 380 Fed.Appx. 268, 269, n.1 (4th Cir. 2010).
E. Motions to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a case when a complaint fails to state a claim upon which relief can be granted. The Federal Rules of Civil Procedure require only, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited, “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.
Plaintiff is proceeding pro se and therefore the Court must liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 - 1 (1972) (per curiam); Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007). Although a complaint need not contain detailed factual allegations, a plaintiff's obligation in pleading, “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” to one that is “plausible on its face.” Id. at 555, 570. In Twombly, the Supreme Court found that, “because the plaintiffs [ ] have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. at 570. Thus, to survive a motion to dismiss, a plaintiff must state a plausible claim in his complaint which is based on cognizable legal authority and includes more than conclusory or speculative factual allegations.
“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” because courts are not bound to accept as true a legal conclusion couched as a factual allegation. Id. at 678. “[Determining whether a complaint states a plausible claim . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, a well-pleaded complaint must offer more than, “a sheer possibility that a defendant has acted unlawfully,” in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id. at 678.
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true, and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.
F. Motions for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a), the Court shall grant summary judgment “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.” In applying the standard for summary judgment, the Court must review all the evidence in the light most favorable to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In Celotex, the Supreme Court held that the moving party bears the initial burden of informing the Court of the basis for the motion to, “demonstrate the absence of a genuine issue of material fact.” 477 U.S. at 323. Once “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a verdict.” Anderson, supra, at 256. Thus, the nonmoving party must present specific facts showing the existence of a genuine issue for trial, meaning that “a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [the] pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment. Id. at 248.
To withstand such a motion, the nonmoving party must offer evidence from which a “fair-minded jury could return a verdict for the [party].” Id. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). Such evidence must consist of facts which are material, meaning that they create fair doubt rather than encourage mere speculation. Anderson, supra, at 248.
Summary judgment is proper only “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita, supra, at 587. “Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. citing First Ntl. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 155, 1592 (1968). See Miller v. Fed. Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir. 1990). Although any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Matsushita, supra, at 587-88. Anderson, supra, at 248-49.
IV. ANALYSIS
A. Petitioner Failed to Exhaust his Administrative Remedies
Under the Prison Litigation Reform Act (PLRA), a prisoner bringing an action under 42 U.S.C. § 1983, or any other federal law, must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). “Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions. Failure to exhaust may only be excused upon a showing of cause and prejudice.” McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (citing Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634-35 (2d Cir. 2001), Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir.1981)). Exhaustion as provided in § 1997e(a) is mandatory, regardless of the relief offered through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). Because exhaustion is a prerequisite to suit, all available administrative remedies must be exhausted prior to filing a complaint in federal court. Porter v. Nussle, 534 U.S. 516, 524 (2002) (citing Booth, 532 U.S. at 741). “Those remedies need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524.
Pursuant to McClung, failure to exhaust may only be excused upon a showing of cause and prejudice. The exhibits submitted by Respondent from the BOP show that the Petitioner failed to fully exhaust his claims, by properly submitting the administrative remedies, and receiving a final determination upon the merits. Rather, the Petitioner's administrative remedies at the institutional and regional level were denied or closed, and any administrative remedy which was prepared for filing at the Central Office was received by the Central Office on November 2, 2023, twenty-three days after this suit was filed on October 10, 2023. ECF Nos. 1, 10-12 at 4. The Petitioner does not demonstrate or even assert any cause or prejudice to justify his failure to exhaust his administrative remedies. In his petition, the Petitioner contends that he exhausted his administrative remedies at the time he received a response from the Designation and Sentence Computation Center which denied his requested recalculation of sentence. ECF No. 1 at 7-8. In his response to the Motion to Dismiss or for Summary Judgment, the Petitioner asserts that he exhausted his administrative remedies, but conceded that “the BOP [has] yet to respond to his Central Office final appeal,” and that he considered the failure to respond as a denial of his claim. ECF No. 23 at 7.
Also, the Petitioner filed his petition ten (10) days before he received a response to his appeal to the Regional Office. See ECF No. 10-12 at 4.
Additionally, the Petitioner never asserts that he requested but was denied administrative remedy forms for filing BP-8, BP-9, BP-10, and BP-11 administrative remedies, which are required to exhaust pursuant to 28 C.F.R. § 542.13-.15, and BOP Program Statement 1330.18 § 542.10 et seq. As recognized in Carmona, supra, which was cited by the Fourth Circuit in its opinion in McClung:
[T]he interests of judicial economy and accuracy are served by requiring that, absent a showing of cause and prejudice, appeals proceed in the first instance through the federal agency review process. Following the administrative procedures could potentially obviate the need for judicial review, or at a minimum, develop the factual record at the agency level at a time when the disputed events are still relatively fresh in witnesses' minds. In this sense, it is the analogue of the exhaustion of state remedies requirement for a state prisoner seeking federal habeas review, and the results governing failure to take this path should be the same.
Administrative autonomy is also served by requiring that a federal prisoner justify his failure to exhaust his intra-Bureau remedies. When, however, legitimate circumstances beyond the prisoner's control preclude him from fully pursuing his administrative remedies, the standard we adopt excuses this failure to exhaust.Carmona, 243 F.3d at 634 (internal citations omitted).
Accordingly, it appears that the Petitioner failed to exhaust all administrative remedies available to address his sentence computation prior to filing the instant action. Although such a failure to exhaust may be excused for cause and prejudice, the Petitioner has not demonstrated either cause or prejudice. The petition does not allege that the Petitioner was denied access to the forms necessary to file administrative remedies, or that staff failed or refused to submit those forms once prepared by the Petitioner. The exhibits submitted by the Respondent show that the Petitioner failed to submit an administrative remedy claim with the Central Office before instituting this action. The Petitioner submitted his appeal to the Central Office [ECF No. 10-12] on November 2, 2023, however, nothing reflects that the form was filed with the Central Office for consideration prior to filing suit.
A review of the administrative remedy record [ECF No. 10-12], submitted by the Respondent shows that the Petitioner filed six administrative remedies, including only one administrative remedy with the Central Office, remedy ID number 1172764-A1, which was not filed until after this action was filed.
The undersigned finds that the Petitioner failed to exhaust his administrative remedy at the Central Office prior to filing this suit, because the administrative remedy was not received until November 2, 2023, more than three weeks after this case was filed on October 10, 2023. ECF No. 10-12 at 4. It is clear that the Petitioner is not entitled to relief because he failed to ever receive a response-either a denial or grant of relief-to his Central Office level administrative remedies on the merits before filing suit. Pursuant to the holdings of McClung and Carmona, the undersigned finds that no cause or prejudice exists to excuse Petitioner's failure to exhaust.
See Footnote 11.
Because Petitioner failed to exhaust his administrative remedies prior to filing this action, this court is without jurisdiction to consider the merits of the petition. When subjectmatter jurisdiction does not exist, “the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 1012-16 (1998); Reinbold v. Evers, 187 F.3d 348, 359 n.10 (4th Cir. 1999).
B. Petitioner is Not Entitled to Relief on the Merits
Even if the Petitioner's claims were considered on the merits, he is still not entitled to relief under § 2241. The Petitioner contends that he is entitled to receive concurrent credit towards both his Northern and Southern District of Alabama sentences. ECF Nos. 1 at 1, 5. However, the Respondent counters that the Bureau of Prisons has properly calculated the Petitioner's sentence without concurrency of his federal sentences because, among other reasons, the first sentence was satisfied before the second sentence was imposed.
The Petitioner had 665 days or prior jail credit at the time he was sentenced to 37 months in the Northern District of Alabama on May 26, 2020. ECF No. 10-8 at 2. The Petitioner's prior 665 days of incarceration was credited toward his 37-month sentence. Id. The Petitioner satisfied the 37-month sentence on March 4, 2021. However, he was not released upon satisfaction of the sentence from the Northern District based on his conviction in the Southern District of Alabama. The Petitioner was sentenced in that district to an 80-month term on June 28, 2021. The 115 intervening days between his sentence discharge from the Northern District, and his sentence imposition in the Southern District were credited toward his Southern District sentence. ECF No. 10-10 at 2.
Because the Petitioner is challenging the computation of his sentence, the consideration of his claims under § 2241 is appropriate. The United States Supreme Court has long recognized that 18 U.S.C. § 3585(b) does not authorize a district court to compute a defendant's jail credit at sentencing. United States v. Wilson, 503 U.S. 329, 334 (1992). Rather, it is the United States Attorney General, acting through the BOP, who is responsible for computing an inmate's term of confinement. This computation includes the determination of when the sentence commenced and the amount of credit for time served following a federal conviction and sentencing. Id. at 333. In making this computation, the BOP must adhere to 18 U.S.C. § 3585 which provides as follows:
(a) Commencement of sentence.-A sentence to a term of imprisonment 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.
(b) Credit for prior custody.-A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences-
(1) as a result of the offense for which the defendant was arrested; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
In Wilson, the Supreme Court expressly rejected Wilson's argument that § 3585(b) authorizes a district court to award credit at sentencing, reasoning that:
Section 3585 indicates that a defendant may receive credit against a sentence that “was imposed.” It also specifies that the amount of the credit depends on the time that the defendant “has spent” in official detention “prior to the date the sentence commences.” Congress' use of a verb tense is significant in construing statutes. By using these verbs in the past and present perfect tenses, Congress has indicated that computation of the credit must occur after the defendant begins his sentence. A district court, therefore, cannot apply § 3585(b) at sentencing.Wilson, supra, at 333 (emphasis in original, internal citations omitted).
In the instant case, the Petitioner seeks credit for the time he spent in custody for his conviction in the Northern District of Alabama, before he satisfied that sentence and commenced his sentence imposed in the Southern District of Alabama. ECF No. 1 at 5. In his petition, the Petitioner asserts that the Bureau of Prisons incorrectly calculated his sentence, and that BOP should have given him credit toward both sentences for time spent in custody. Id. The Petitioner relies on the concurrency instruction provided by the sentencing judge in his Northern District of Alabama conviction.
However, the documents provided by the Respondent demonstrate that from the Petitioner was in custody for his conviction in the Northern District of Alabama until March 4, 2021. ECF Nos. 10-1 at 5, 10-8 at 2. Upon sentence computation by the BOP for his sentence in the Southern District, the Petitioner was not granted any prior custody credit for the period through March 4, 2021, because that time was applied to Petitioner's sentence in the Northern District.
Petitioner's satisfaction of his sentence in the Northern District prior to the imposition of his sentence in the Southern District prohibited him from receiving simultaneous credit for that time spend in custody for his Northern District conviction. Consistent with 18 U.S.C. § 3585(b), a “defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences . . . that has not been credited against another sentence.”
However, the Petitioner was not eligible to obtain credit for time served prior to imposition and commencement of his Southern District sentence, because he was receiving credit for that time toward his Northern District sentence. Accordingly, the BOP, appropriately determined the date that Petitioner started his sentence was the date his sentence was imposed in federal court, consistent with the provisions of 18 U.S.C. §§ 3585(b). Moreover, the Petitioner properly received credit for the 115 days he was incarcerated between the satisfaction of his Northern District sentence, but prior to the imposition of his Southern District sentence, because that time was not credited against another sentence. Concurrency could not occur to the Southern District judgment because: (1) the Northern District sentence had already been satisfied; and (2) the Southern District sentence was not imposed until June 28, 2021, after his Northern District sentence had been satisfied.
Although Petitioner asserts that the Bureau of Prisons incorrectly calculated his sentence, and refuses to grant him concurrent credit for time served on his Northern District of Alabama conviction, it is clear from 18 U.S.C. §§ 3585, 3621 and 3632 and the holding of Wilson, that neither the warden nor the Court calculate sentences for federal inmates. That task is the exclusive responsibility of the Bureau of Prisons, and it pursuant to the holding of Wilson this Court may not usurp the Bureau of Prisons' authority. Moreover, a review of § 3585 shows that Petitioner's sentence was properly calculated to commence on the date he was sentenced in the Southern District court, with 115 days of credit which was not applied to any other sentence. Thus, Petitioner has received all custody credit to which he was entitled, and his request for relief is without merit.
For all the above reasons, the undersigned finds that even if the Petitioner's claims were considered on the merits, that he fails to demonstrate he is entitled to relief.
V. RECOMMENDATION
For the foregoing reasons, I RECOMMEND that the Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [ECF No. 1] be DENIED and that the § 2241 proceeding be DISMISSED WITHOUT PREJUDICE.
It is further RECOMMENDED that Respondent's motion to dismiss, or in the alternative, for summary judgment [ECF No. 9] be GRANTED.
The Petitioner shall have fourteen (14) days from the date of filing this Report and Recommendation within which to file with the Clerk of this Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. 28 U.S.C. §636(b)(1); Thomas v. Arn, 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), cert. denied, 467 U.S. 1208 (1984).
This Report and Recommendation completes the referral from the district court. The Clerk is directed to terminate the Magistrate Judge's association with this case.
The Clerk of the Court is directed to mail a copy of this Report and Recommendation to the pro se Petitioner by certified mail, return receipt requested, to his last known address as reflected on the docket sheet, and to all counsel of record by electronic means.