Opinion
3:23-cv-198-KAP
09-06-2023
JUAN PABLO ZULUAGA, Petitioner v. MICHAEL UNDERWOOD, WARDEN, F.C.I. LORETTO, Respondent
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Recommendation
Petitioner Juan Pablo Zuluaga filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.§ 2241. ECF no. 1. Pursuant to 28 U.S.C.§ 2243, the petition should be summarily denied without prejudice.
Report
This is filed as a Report and Recommendation because dismissal before service is appropriate. Petitioner Zuluaga objects to the Bureau of Prisons' denial to him of earned time credits (ETC) for programming completed under the applicable provisions of the First Step Act of 2018, Pub.L.No. 115-391, 132 Stat. 5208 (December 21, 2018). 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 eligible inmates who participate in these programs credits that can be applied toward time in prerelease custody or supervised release.
Noncitizens who are removable from the United States who are subject to final orders of removal are not eligible to receive ETCs. Zuluaga is a citizen of Colombia who came to the United States in custody of the Marshal in September 2021 for the purpose of criminal prosecution in the Southern District of Florida. Zuluaga was sentenced to 60 months incarceration on May 24, 2022 for conspiracy to possess with intent to distribute cocaine while on board a vessel subject to the jurisdiction of the United States. With credit for prior custody beginning in December 2019, and assuming the normal accrual of good time credits, Zuluaga is projected for release in March 2024. An Order of Removal finding Zuluaga an inadmissible alien subject to expedited removal was issued on August 1, 2023. Exhibit 8. Zuluaga does not acknowledge this to be a final order of removal because, he argues, only an Immigration Judge can issue such an order, and only after a hearing under Section 240 of the Immigration Act.
Zuluaga makes two arguments that he is eligible for ETCs: 1) he does not have a valid final order of removal pending against him, and 2) even if he does, what he calculates as his 135 days of ETCs earned before the Order of August 1, 2023 are vested and not forfeitable. He contends he should be released to a residential re-entry facility or to home confinement in September 2023.
Zuluaga acknowledges that he did not exhaust his administrative remedies before filing the habeas petition. Zuluaga filed an informal request for a remedy - a BP-8 - on August 7, 2023 and it was denied on August 10, 2023. Exhibit 1. Zuluaga filed a BP-9 at Loretto on or about August 11, 2023 that was rejected on August 17, 2023 for several reasons, including a failure to specify what remedy Zuluaga wanted. Exhibit 2. Zuluaga's next steps should have been to refile his BP-9 and then, if necessary after a proper BP-9 was submitted, to file a BP-10 at the Bureau of Prisons Northeast Regional Office, and finally (if necessary) to file a BP-11 seeking review at the Bureau of Prisons' Central Office. See 28 C.F.R. §§ 542.10-19. Zuluaga attaches as Exhibit 3 the unsigned and undated BP-10 he says he filed on August 23, 2023. Zuluaga also wrote a letter to ICE's Pittsburgh office dated August 16, 2023. Exhibit 4. He then filed this petition approximately two weeks later.
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, although an exception exists for matters 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). Review in the Bureau of Prisons' 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).
Explaining the concept that exhaustion under the Prison Litigation Reform Act means proper exhaustion, the Supreme Court observed:
Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper exhaustion of administrative remedies, which “means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on
the merits).”Woodford v. Ngo, 548 U.S. 81, 90 (2006). Woodford v. Ngo expressly used the concept of proper exhaustion in habeas as the guide for PLRA exhaustion. Id., 548 U.S. at 92: “In practical terms, the law of habeas, like administrative law, requires proper exhaustion[.]”
Whether Zuluaga is eligible for ETC or not, he will not be released to a halfway house because he is, at the least, subject to an immigration detainer as an inadmissible alien. Zuluaga's argument that his Order of Expedited Removal cannot bar him from receiving ETCs can be considered with a complete record when he has properly exhausted his administrative remedies. There is no reason to leap to consider questions committed to the Bureau of Prisons to resolve first.
Pursuant to 28 U.S.C.§ 636(b)(1), the petitioner is given notice that he has fourteen days to file written objections to this Report and Recommendation. The 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).
Notice by U.S. Mail to:
Juan Pablo Zuluaga, Reg. No. 02479-506
F.C.I. Loretto
P.O. Box 1000
Cresson, PA 16630