Opinion
3:23-cv-268-KAP
03-12-2024
RANDO SAAVEDRA-RAMIREZ, Petitioner v. COLETTE PETERS, DIRECTOR, BUREAU OF PRISONS and MICHAEL UNDERWOOD, WARDEN, F.C.I. LORETTO, Respondents
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE.
Recommendation
Petitioner Saavedra-Ramirez has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.§ 2241, and he has been granted leave to proceed in forma pauperis. Screening the petition before service, see 28 U.S.C.§ 2243, I recommend that the petition be dismissed without prejudice as explained below.
Report
I am submitting this as a Report and Recommendation because preservice dismissal is appropriate: it would be wasteful to serve the matter to determine whether all parties would consent to my jurisdiction.
This is one of approximately a score of form petitions that have been submitted by inmates serving federal sentences at F.C.I. Loretto. The template petition for a writ of habeas corpus under 28 U.S.C.§ 2241(c)(3) circulating at Loretto recites that the petitioner has been denied earned time credits (ETC or FSA credits) for participation in programming under the provisions of the First Step Act of 2018, Pub.L.No. 115-391, 132 Stat. 5208 (December 21, 2018), and seeks a writ to the Bureau of Prisons ordering the BOP to apply those credits to his sentence. 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 credits to most -but not all- inmates participating in these programs that can be applied toward time in prerelease custody or supervised release.
According to Saavedra-Ramirez's version of the petition, he is a Mexican national sentenced on April 28, 2017, in the United States District Court for the Southern District of Texas to a term of 210 months imprisonment for possession with intent to distribute methamphetamine. Petition Exhibit 5. According to the BOP's sentencing summary as of March 20, 2023, with credit for prior custody time and assuming Saavedra-Ramirez does not lose any good conduct time, Saavedra-Ramirez's projected release date would be June 11, 2030: with the maximum 365 days of FSA credits applied to his sentence, his release date would be one year earlier. Petition, Exhibit 7.
The BOP will not apply FSA credits to Saavedra-Ramirez's sentence because he is a Mexican national and has an immigration detainer lodged against him, which the BOP asserts is based on a final order of removal. Petition Exhibit 2b. Saavedra-Ramirez denies that there is a final order of removal in his case.
Many of the inmates at Loretto using the form petition are foreign nationals who have a final order of removal. Congress has precluded removable inmates with a final order of removal from having earned time credits applied to their sentences. 18 U.S.C.§ 3632(d)(4)(E):
(E) DEPORTABLE PRISONERS INELIGIBLE TO APPLY TIME CREDITS-
(i) In General- A prisoner is ineligible to apply time credits under subparagraph
(C) if the prisoner is subject of a final order of removal under any provision of the immigration laws (as such term is defined in Section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(17)).
Many inmates at Loretto use the form petition because the BOP considers them ineligible to have ETCs applied to their sentences, and like Saavedra-Ramirez those inmates assert that because they have never appeared before an Immigration Judge there is no final order of removal or if there is such an order it is invalid.
The Court should not waste its resources attempting to resolve what may be no more than an issue of fact (the existence of a final order) that Saavedra-Ramirez has not exhausted. (Saavedra-Ramirez attempts to add a claim in a supplement to the Petition that he is not properly in BOP custody at all because the copy he has of his Judgment and Commitment dated May 10, 2017 does not have the Marshal's signature on the Return. ECF no. 3. This is a frivolous argument presented from time to time by inmates at Loretto, see e.g. Hall v. Kirby, Case No. 3:i3-cv-2i7-KRG-KAP (W.D.Pa.), affd mem. No. 13-4332 (3d Cir. February 18, 2014), but if it were not frivolous the following remarks about exhaustion apply to that claim as well.)
The BOP has a three-tiered (or four-tiered if the informal remedy is counted) system through which a federal prisoner may file a grievance about any conditions of his imprisonment. 28 C.F.R.§§ 542.10-542.19. An inmate must first use a form BP-8 to “present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy.” 28 C.F.R.§ 542.13(a). An inmate who cannot resolve the problem informally must file “a formal written Administrative Remedy Request, on a form BP-9, [within] 20 calendar days following the date on which the basis for the Request occurred.” 28 C.F.R.§542.14(a). The responding authority is the warden of the inmate's institution, who has 20 days to respond. 28 C.F.R.§ 542.18. An inmate not satisfied with the warden's response must appeal that response. The Regional Director for the Northeast Region is the relevant recipient of an appeal from Loretto. The appeal, on a form BP-10, must be filed within 20 days of the warden's signed BP-9 response. 28 C.F.R.§ 542.15(a). If the inmate is not satisfied with NERO's response, the final step is by filing a form BP-11 to the BOP's General Counsel within 30 days of the Regional Director's response. The BOP can grant itself an extension of time to respond at each level, but a failure to timely respond at any level can be taken as a denial at that level. 28 C.F.R.§ 542.18.
Saavedra-Ramirez filed this petition, dated October 28, 2023, on October 30, 2023. In his initial petition he attempted to give the impression he had exhausted his administrative remedies by including undated copies of his BP-10 and BP-11, but in his supplement, ECF no. 2, he alleges that he filed his BP-10 on September 13, 2023 and then, because he did not receive a response until December 10, 2023, he filed his BP-11 on December 28, 2023. His BP-11 was rejected on January 28, 2024 as procedurally defective without prejudice and with directions on how to resubmit his BP-10 before proceeding to the final step at the national level. Exhibits 11 and 12. To state the obvious, December 28, 2023 (the date the BP-11 was filed) follows October 28, 2023 (the date the Petition was filed).
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, unless the matter 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). As the Court of Appeals has been saying for four decades, use of the 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).
There is no good reason for dispensing with the requirement of administrative exhaustion to consider this petition. Saavedra-Ramirez is by his own petition more than five years away from the earliest date when application of FSA credits would have any impact on his sentence. Both the law and the facts can change by then: the law regarding the eligibility of foreign nationals to have FSA credits applied may change, or petitioner may appear before an IJ who may issue a final order of removal. To order service and spend judicial time on the matter without requiring the petitioner to present the problem to the BOP to consider the matter first and develop a factual record is a waste of judicial resources.
Pursuant to 28 U.S.C.§ 636(b)(1), parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. 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).