Opinion
Civil Action No. 4:03-CV-1442-Y
February 27, 2004
FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Jeffrey M. Ortiz, Reg. 85990-012, is a federal prisoner incarcerated in the Federal Medical Center, Fort Worth, Texas.
Respondent L.E. Fleming is Warden of the Federal Medical Center, Fort Worth, Texas.
C. PROCEDURAL HISTORY
Ortiz is serving a 33-month term of imprisonment for conspiring to possess and transport in interstate commerce fraudulent travelers checks and implements used in counterfeiting travelers checks in violation of 18 U.S.C. § 514, 2314 and 371. (Resp't Appendix 1, at 1.) He is presently expected to be released with good conduct time on June 20, 2005. (Id.)On February 19, 2003, Ortiz signed an agreement to participate in a residential drug abuse treatment program for early release consideration under 18 U.S.C. § 3621(e). (Pet'r Mem. of Law at Ex. E F.) He enrolled in such a program, but was later notified by the Bureau of Prisons (the Bureau) that he was disqualified for early release under § 3621(e) due to a "past conviction for a violent offense"-a 1973 conviction in the State of New York for possession of a weapon that involved Ortiz shooting an individual in the neck with a short-barrel shotgun and causing their death. (Pet'r Traverse at Ex. J.) In reaching its decision, the Bureau apparently relied on Program Statement 5330.10, which excludes from eligibility "[i]nmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, aggravated assault, or child sexual abuse offense." (Id.)
The parties did not provide a copy of Program Statement 5330.10, however the Bureau's program statements are available on the Internet. U.S. Department of Justice, Federal Bureau of Prisons/ Freedom of Information Act/Policy/Bureau Program Statements (policies), available at http://www.Bureau.gov.
Ortiz filed the instant petition for writ of habeas corpus in the United States District Court for the Northern District, Fort Worth Division. The government has filed a response and motion to dismiss the petition with supporting documentary exhibits. (Resp't Resp. Mot. to Dismiss at 1-7.) Ortiz filed a reply. (Pet'r Traverse.)
D. ISSUES
In two grounds for relief, Ortiz raises the following issues:
(1) Whether he "had any settled expectation for early release eligibility pursuant to 18 U.S.C. § 3621," and
(2) Whether he "should be allowed to have his petition for issuance of writ of habeas corpus pursuant to 28 U.S.C. § 2241 without exhaustion of administrative remedy process." (Pet. at iii.)
E. EXHAUSTION
The government asserts that the petition should be dismissed because Ortiz has failed to exhaust his administrative remedies as mandated by 42 U.S.C. § 1997e(a), thus depriving this court of subject matter jurisdiction over the issues presented. In support of its argument, the government relies heavily on Booth v. Churner, 532 U.S. 731 (2001), and Porter v. Nussle, 534 U.S. 516, 524 (2002). In those cases, the Supreme Court makes clear that an inmate bringing a civil rights action under 42 U.S.C. § 1983 or suing under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), regarding prison conditions must first exhaust prison grievance procedures pursuant to § 1997e(a). Booth, 532 U.S. at 740-41; Porter, 534 U.S. at 532. The Supreme Court has yet to hold, however, that § 1997e(a) applies to a habeas corpus proceeding under 28 U.S.C. § 2241. Moreover, Ortiz is challenging the fact or duration of his confinement, not the conditions of his confinement. Therefore, his 28 U.S.C. § 2241 petition is not subject to the exhaustion provision of 42 U.S.C. § 1997e(a). See Mayberry v. Pettiford, 74 Fed.Appx. 299, 299 (5th Cir. 2003); 18 U.S.C. § 3626(g)(2).Nevertheless, federal prisoners are required to exhaust available administrative remedies through the Bureau before seeking habeas corpus relief under § 2241. See Rourke v. Thompson, 11 F.3d 47, 50 (5th Cir. 1993). An administrative remedy procedure for federal prisoners is provided at 28 C.F.R. § 542.10-542.19. Under this administrative procedure, an inmate is advised to seek informal discussion and resolution of their complaint with prison staff. (Resp't Appendix 1 at 2.) If informal resolution fails, the inmate must pursue a three-level process within the prescribed time intervals. (Id.) The inmate may formally appeal to the Warden, via a form commonly referred to as a BP-9; then to the Regional Director, via a form commonly referred to as a BP-10; and finally to the Office of General Counsel, via a form commonly referred to as a BP-11. (Id.) Administrative remedies have not been exhausted until the inmate's claim has been filed at all levels and has been denied at all levels. See 28 C.F.R. § 542.15; Rourke, 11 F.3d at 49.
In support of the government's assertion that Ortiz's petition should be dismissed for lack of exhaustion of administrative remedies, it has submitted the declaration of Alberto Munguia, Supervisory Attorney at Federal Medical Center, Fort Worth. (Resp't Appendix 1 at 1.) Affiant Munguia avers that, by way of his employment, he has access to inmates' files concerning any aspect of their confinement including whether an inmate has exhausted his administrative remedies. (Id.) Munguia further avers that review of the records maintained by the Bureau reveals that Ortiz has not exhausted the administrative remedy process relevant to his claim. (Id. at 2.)
Ortiz, on the other hand, contends that the administrative remedies process has been "met" because he has filed a BP-9, BP-10, and BP-11. (Pet'r Traverse at 3.) In support of his assertion, he has provided copies of the Warden's and Regional Director's written decisions to his BP-9 and BP-10. (Pet'r Traverse at 3, Ex. J.) He has not, however, provided proof that the final step has been completed-i.e., that the Office of General Counsel has issued a written response to his BP-11 allegedly filed on February 13, 2004. (Id. at 3.) Ortiz also argues that he should not be required to further exhaust his administrative remedies because doing so would be fufile given the Bureau's "clear and inflexible policy" and because with each passing day he "loses the benefit of his eligibility for early release." (Id.)
The purpose of exhaustion is to permit the federal agency being challenged to correct its own error without court intervention. Smith v. Thompson, 937 F.2d 217, 219 (5th Cir. 1991). It is true, however, that exhaustion is not required where the available administrative remedies either are unavailable or inadequate, or where the attempt to exhaust such remedies would be fufile. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). Where, as here, the Bureau has adopted the policy and instructed its staff in the form of a Program Statement that a particular category of inmates are ineligible for early release, attempts to exhaust the administrative process may, in fact, be fufile. See Stewart v. Tombone, No. 3:97-CV-0129-BC, 1998 WL 158657, at*2 (N.D.Tex.Mar. 24, 1998) (not designated for publication). Assuming that to be the case, adherence to the exhaustion requirement would serve no purpose other than delay. Thus, the court will address Ortiz's remaining claim on the merits.
F. DISCUSSION
Title 18 U.S.C. § 3621(e)(2)(B) allows the Bureau to reduce the sentence of a prisoner convicted of a nonviolent felony offense by up to one year upon successful completion of a drug abuse treatment program. 18 U.S.C. § 3621(e)(2)(B); see also 28 C.F.R. § 550.50-550.60. Section 3621(e)(2)(B) explicitly leaves sentence reductions to the discretion of the Bureau. See Lopez v. Davis, 531 U.S. 230, 231 (2001); Wottlin v. Fleming, 136 F.3d 1032, 1035 (5th Cir. 1998); Venegas v. Henman, 126 F.3d 760, 765 (5th Cir. 1997). If a prisoner meets the prerequisites of § 3621(e)-conviction of a nonviolent offense and successful completion of drug treatment, the Bureau has the authority, but not the duty, to reduce his term of imprisonment. Lopez, 531 U.S. at 241.
Ortiz contends that, having signed the contract to participate in a drug treatment program, enrolled in the program, and been notified by the Bureau of his "provisional" § 3621 eligibility, he had a "settled expectation" of early release. (Pet'r Mem. of Law at 4-7, Ex. D.) Bowen v. Hood, 202 F.3d 1211, 1200 (9th Cir. 2000). He further asserts that the information regarding his 1973 conviction, apparently obtained from a PSI, was contradictory and insufficient to support denial of eligibility under Program Statement 5330.10. (Pet'r Mem. of Law at 6.)
The record reflects that on February 19, 2003, Ortiz was notified only of his "provisional § 3621 eligibility." (Pet'r Mem. of Law at Ex. D.) In the agreement signed on the same date, Ortiz acknowledged that he understood his § 3621 eligibility was provisional and subject to change.
Although the Bureau's initial grant of provisional § 3621 eligibility may have given Ortiz false hope or an expectation of early release, it is well settled that there is no constitutionally protected right of a convicted person to early release under § 3621(e). Wottlin, 136 F.3d at 1036; Venegas, 126 F.3d at 765; Stewart, No. 3:97-CV-0129-BC, 1998 WL 158657, at *3. It is within the authority of the Bureau to make case-by-case assessments regarding who among the statutorily eligible nonviolent offenders are actually appropriate candidates for early release under § 3621(e) based on such considerations as preconviction conduct, the nature and circumstances of the offense, the potential for rehabilitation, the sentencing court's recommendation, postconviction conduct, and any other criteria that the Bureau deems relevant. See 18 U.S.C. § 3621(b); Lopez, 531 U.S. at 241-42 (statute does not limit considerations Bureau can use to guide its decision); Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000); Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir. 1998); Stewart, No. 3:97-CV-0129-BC, 1998 WL 158657, at *3. Disqualifying Ortiz based on his "past conviction for a violent offense" was a reasonable exercise of the Bureau's broad discretion under the statute. Consequently, Ortiz is not entitled to habeas corpus relief.
This is so even if the Bureau improperly relied upon, or expanded the relevant category of ineligible inmates under, Program Statement 5330.10 to include Ortiz based on his 1973 conviction. (Pet'r Traverse at Ex. J.)
II. RECOMMENDATION
The government's motion to dismiss should be granted to the extent that Ortiz's petition for writ of habeas corpus be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until March 19, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 19, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.