Opinion
C. A. 9:21-cv-00305-HMH-MHC
09-01-2021
David Rodriguez, Petitioner, v. Stevie Knight, Respondent
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Pro se Petitioner David Rodriguez (“Petitioner”), a federal inmate incarcerated at Federal Correctional Institution (“FCI”) Estill, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241. Respondent Stevie Knight (“Respondent”) filed a Response to the Petition and Motion for Summary Judgment, ECF No. 11, and Petitioner filed a Reply in Opposition, ECF No. 14. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this matter was referred to the undersigned for a Report and Recommendation.
Petitioner also filed an emergency motion and notice for immediate consideration. ECF No. 2. The undersigned denied that motion. ECF No. 7.
On December 4, 2013, in the Southern District of Florida, Petitioner was sentenced to 235 months' imprisonment followed by five years' supervised release for conspiracy to import five kilograms or more of cocaine into the United States, in violation of 21 U.S.C. § 963. He voluntarily dismissed his appeal, and an order of dismissal was entered on February 20, 2014. A motion to reduce sentence was filed, and on March 5, 2015, Petitioner's sentence was reduced to 188 months' imprisonment. United States v. Rodriguez, No. 1:13-cr-20527-KMM (S.D. Fla.); see also ECF No. 1 at 2. Petitioner is currently an inmate at FCI-Estill and his projected release date is December 5, 2026.
In this § 2241 Petition, Petitioner asserts that the Bureau of Prisons (“BOP”) has failed to apply his earned time credits for the “Evidence-Based Recidivism Reduction Programming” (“EBRR”) under the First Step Act (“FSA”), 18 U.S.C. § 3632(d)(4)(A); his sentence duration has been impacted by the BOP's failure to credit his sentence; and FCI Estill is not meeting its performance requirements under 18 U.S.C. § 3621(h)(3). ECF No. 1 at 8-9. Petitioner requests that the Court order the BOP to grant him 365 days of earned time credit. ECF No. 1 at 9.
I. BACKGROUND
A. BOP's Administrative Remedy Process
The BOP has a three-tier formal administrative remedy process through which an inmate may seek formal review of any issue which relates to any aspect of his confinement. See 28 C.F.R. §§ 542.10-542.19. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement at the institution level. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request (on a BP-9 form) with the Warden, which must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the Warden's response, he may appeal to the Regional Director (on a BP-10 form); appeals to the Regional Director must be submitted within twenty days of the date the Warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel (on a BP-11 form); appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id. An appeal to the General Counsel is the final level of agency review. Id.
B. Petitioner's administrative appeals
Petitioner admits that he has not exhausted all of his administrative remedies. ECF No. 1 at 6. He states that he sought informal resolution and filed an Administrative Remedy Request (BP-9) at the institution level, but he did not file an appeal (BP-10) or a final administrative appeal (BP-11). ECF No. 1 at 6.
Petitioner attaches copies of a completed informal request and a copy of a BP-9 and response. ECF No. 1-1 at 2-5. Respondent has submitted documents and a sworn affidavit detailing a review of SENTRY, the BOP's electronic inmate record system, which shows that Petitioner filed Remedy ID No. 1064282-F1 on January 5, 2021, seeking earned time credit. ECF No. 11-1 at 1, 4. The remedy was closed on January 15, 2021, and a response provided for information/explanation purposes only. ECF No. 11-1 at 1, 4. Petitioner appealed to the Regional Office on February 1, 2021, the same day he filed the Petition in the instant case. See ECF No. 1; 11-1 at 1, 4.
II. LEGAL STANDARDS
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only 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, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Habeas Corpus
Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration ofhis custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attacking] the computation and execution of the sentence rather than the sentence itself.” United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (per curiam); see also Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). A § 2241 petition challenging the execution of a federal prisoner's sentence generally addresses “such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention[, ] and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Manigault v. Lamanna, No. 8:06-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.”). A § 2241 petition must be brought against the warden of the facility where the prisoner is being held, Rumsfeldv. Padilla, 542 U.S. 426, 434-35 (2004), and “in the district of confinement rather than in the sentencing court, ” Miller, 871 F.2d at 490. See also 28 U.S.C. § 2242.
C. Administrative Exhaustion
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies before seeking habeas review under § 2241. See, e.g., Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-91 (1973) (requiring exhaustion in a § 2241 matter); Timms v. Johns, 627 F.3d 525, 530-33 (4th Cir. 2010) (same); McClung v. Shearin, 90 F. App'x. 444, 445 (4th Cir. 2004) (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions.”); Miller v. Clark, 958 F.2d 368, 1992 WL 48031, at *1 (4th Cir. 1992) (unpublished table opinion) (“Federal prisoners who wish to challenge the length of their confinement must first exhaust administrative remedies.”); Henderson v. Warden, Edgefield Satellite Prison Camp, No. 2:09-cv-01599-RBH, 2009 WL 3317149, at *2 (D.S.C. Oct. 14, 2009) (“It is well settled that a federal prisoner is required to exhaust his administrative remedies within the BOP before filing an action pursuant to § 2241.”).
Any arguments not advanced at each step of the administrative appeal are procedurally defaulted. See Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002). Moreover, if a prisoner cannot obtain an administrative remedy because of his failure to timely appeal at the administrative level, then the prisoner has procedurally defaulted his § 2241 claim. See, e.g., Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3rd Cir. 1996), cited with approval in Watkins v. Compton, 126 Fed.Appx. 621, 622 (4th Cir. 2005). A petitioner's failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445; see also Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (“Cause and prejudice may excuse a procedural default of administrative remedies.”).
III. DISCUSSION
Respondent argues that Petitioner failed to exhaust his administrative remedies before filing his § 2241 Petition. Further, Respondent argues that Petitioner's request for Earned Time Credits under the FSA's EBRR program is premature. The Court agrees on both accounts.
A. Failure to exhaust
As detailed above, and readily admitted by Petitioner, Petitioner only sought informal resolution and filed an Administrative Remedy Request (BP-9) at the institution level. ECF No. 1 at 6. He did not file an appeal (BP-10) or a final administrative appeal (BP-11) prior to filing this action. ECF No. 1 at 6; 11-1 at 1, 4. Indeed, the administrative remedy procedure is still ongoing, as Petitioner appealed to the Regional Office on February 1, 2021, the same day he filed the Petition in the instant case. See ECF No. 1; 11-1 at 1, 4. As a result, Petitioner failed to exhaust his administrative remedies before seeking habeas relief in this Court, and the Petition should be dismissed. See McClung, 90 F. App'x. at 445 (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions.”).
Petitioner argues that “[a]ny further exhaustion would be futile due to a narrow dispute of statutory construction which is exempt from the exhaustion process.” ECF No. 1 at 6. Further, in his Reply, Petitioner appears to accuse the BOP of misrepresenting his exhaustion efforts. See ECF No. 14 at 3-4. Petitioner does not provide any case law to support the proposition that his case is exempt from administrative exhaustion, nor does he provide evidence of purposeful misrepresentation of his exhaustion efforts by the BOP. Indeed, he admits he has not exhausted his administrative remedies. Therefore, the Court will not excuse Petitioner's failure to exhaust. See McClung, 90 Fed.Appx. at 445 (noting a petitioner's failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice).
Accordingly, the petition should be dismissed without prejudice for failure to exhaust administrative remedies. See Wright v. Warden of Edgefield FCI, No. 8:21-CV-0388-JD-JDA, 2021 WL 2270011, at *4 (D.S.C. Mar. 31, 2021) (recommending dismissal for failure to exhaust administrative remedies in a case asserting identical claims for earned time credits under the FSA's EBRR program), report and recommendation adopted, No. 8:21-CV-0388-JD, 2021 WL 2269960 (D.S.C. June 2, 2021); Taylor v. Warden, Satellite Prison Camp at Edgefield, S.C., No. 2:16-CV-1826-RBH-MGB, 2016 WL 11190493, at *4 (D.S.C. July 21, 2016) (“[T]his unexhausted [§ 2241] Petition should be dismissed without prejudice for failure to exhaust administrative remedies.”), report and recommendation adopted, No. 2:16-CV-01826-RBH, 2017 WL 359497 (D.S.C. Jan. 25, 2017).
B. Petitioner's claim is premature
Respondent argues that, even if Petitioner had exhausted his administrative remedies, his action is premature. The Court agrees.
A number of judges, including ones in this District, have dismissed petitions like the present one as premature because 18 U.S.C. § 3621(h)(4) of the FSA provides a two-year phasein deadline to implement the EBRR program at issue, and that deadline (January 15, 2022) has not yet expired. See, e.g., Toussaint v. Knight, No. 6:21-CV-00764-HMH-KFM, 2021 WL 2635887, at *4 (D.S.C. June 4, 2021), report and recommendation adopted, No. CV 6:21-764-HMH-KFM, 2021 WL 2635479 (D.S.C. June 25, 2021); Kennedy-Robey v. FCI Pekin, No. 20-CV-1371, 2021 WL 797516, at *4 (C.D. Ill. Mar. 2, 2021) (“The statutory language indicates that Congress left this determination up to the BOP, while at the same time giving the BOP a deadline of January 15, 2022. Until that date, the Court does not find that Kennedy-Robey has any right to application of earned time credits that this Court can enforce.”); Hand v. Barr, No. 1:20-CV-00348-SAB-HC, 2021 WL 392445, at *5 (E.D. Cal. Feb. 4, 2021) (“[B]ecause the Act does not require BOP to provide evidence-based recidivism reduction programs and productive activities for all prisoners until January 2022, the Court finds that Petitioner's claims regarding earned time credits and evidence-based recidivism reduction programs are not ripe.”), report and recommendation adopted, No. 120CV00348AWISABHC, 2021 WL 1853295 (E.D. Cal. May 10, 2021); Llewlyn v. Johns, No. 5:20-CV-77, 2021 WL 535863, at *2 (S.D. Ga. Jan. 5, 2021) (“Because the First Step Act does not require actual implementation for each inmate until January 2022, Llewlyn is not entitled to an order from this Court compelling the BOP to recalculate his time credits. His petition is premature, and his claim is not yet ripe.”), report and recommendation adopted, No. 5:20-CV-77, 2021 WL 307289 (S.D. Ga. Jan. 29, 2021).
The Court agrees with the reasoning set forth in those opinions, and therefore recommends dismissal on this additional basis.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 11) be GRANTED and that the petition be DISMISSED without prejudice.
The parties are directed to the next page for their rights to file objections to this recommendation.