Teal v. Outlaw et al

Filing 9

RECOMMENDED DISPOSITION recommending that the Court dismiss 1 Petition for Writ of Habeas Corpus, without prejudice, to permit the petitioner to pursue his administrative remedies. Objections to R&R due by 12/16/2008. Signed by Magistrate Judge Beth Deere on 12/2/08. (hph)

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION

C H A R L E S M. TEAL R e g # 04477-095 VS. NO. 2:08-CV-00091-JLH-BD

PETITIONER

T .C . OUTLAW, Warden, Federal Correctional Complex, F o r r e s t City, Arkansas, et al.

RESPONDENTS

R E C O M M E N D E D DISPOSITION

I.

P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to Chief United States

D istric t Judge J. Leon Holmes. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact.

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M a il your objections and "Statement of Necessity" to: Clerk, United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B a c k gro u n d : P e titio n e r Charles M. Teal is currently serving a forty-one month sentence at the F e d e ra l Correctional Complex in Forrest City, Arkansas ("FCC-Forrest City"). Petitioner b rin g s this petition for writ of habeas corpus (#1) under 28 U.S.C. § 2241 challenging the m a n n e r in which Respondent is executing his sentence. Specifically, Petitioner claims th a t Respondent should compute his federal sentence to run concurrently with his L o u is ia n a state sentence so that he can receive credit for twenty-five months of jail time s e rv e d at various state facilities in Louisiana. Respondent disputes the merits of the P e titio n e r's argument and also contends the case should be dismissed because of P e titio n e r's failure to exhaust his administrative remedies. For the reasons that follow, th e Court recommends that the District Court dismiss the petition without prejudice to a llo w Petitioner the opportunity to fully exhaust his administrative remedies. I I I. E x h a u s tio n of Administrative Remedies: T h e Bureau of Prisons ("BOP") is responsible for computing the sentence credit a f te r a defendant has begun serving his sentence. United States v. Wilson, 503 U.S. 329, 3 3 5 , 112 S.Ct. 1351 (1992). Prisoners are entitled to administrative review of the c o m p u ta tio n of their credits by the BOP under the procedure set forth in 28 C.F.R. 2

§ § 542.10-542.16. After properly exhausting administrative remedies, an inmate may s e e k judicial review by filing a habeas corpus petition under 28 U.S.C. § 2241. Wilson, 5 0 3 U.S. at 335, 112 S.Ct. 1351; United States v. Pardue, 363 F.3d 695, 699 (8th Cir. 2 0 0 4 ). The exhaustion requirement may be waived if the prisoner shows that attempting to exhaust would be futile. In this case, Petitioner acknowledges that he has not fully exhausted his a d m in is tra tiv e remedies. (#1 at pp. 1-3) Petitioner attaches a letter to his Petition which h e claims is his attempt to file an informal grievance with the BOP to resolve the alleged tim e computation issue. (#1 at pp. 13-14) He also attaches a motion he filed with the se n ten c in g court requesting that it order the BOP to give him credit for time served on his s ta te sentence, but which the trial court dismissed for lack of jurisdiction. (#1 at pp. 5, 11) In response to the Petition, Respondent attaches a declaration from Daniel R. S e v e rso n . Mr. Severson, a paralegal specialist with the BOP, affirms that, according to B O P records, Petitioner has not filed any grievances in the three-step administrative p ro c e s s required to exhaust administrative remedies. Petitioner claims that any attempt to follow the formal grievance procedure at this p o in t would be futile because, according to his calculations, he has very little time left to s e rv e on his forty-one month sentence. Petitioner may believe that the administrative p ro c e ss is futile. However, even assuming Petitioner's calculation of his sentence is c o rr e c t, there is still time remaining for Petitioner to exhaust his administrative remedies.

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M o re o v e r, the BOP should be permitted an opportunity to fully assess the computation of P e titio n e r's sentence before a federal court intervenes. See United States v. Chappel, 208 F .3 d 1069, 1069 (8th Cir. 2000) (per curiam) (district court did not err in denying a f e d era l prisoner's motion seeking credit against his sentence because the prisoner had not e x h a u ste d his administrative remedies) (citing United States v. Iversen, 90 F.3d 1340, 1 3 4 4 (8th Cir. 1996) (holding the district court lacks authority to credit a defendant for p re v io u s detention if the claim is not first presented to the BOP); and Kendrick v. C a r ls o n , 995 F.2d 1440, 1447 (8th Cir. 1993) (federal prisoners seeking credit against a s e n te n c e must exhaust their administrative remedies before filing a habeas petition)). IV. C o n c lu s io n : B ec au se Petitioner has not exhausted his administrative remedies, the Court re c o m m e n d s that the District Court dismiss the petition for writ of habeas corpus without p re ju d ic e to permit the petitioner to pursue his administrative remedies. IT IS SO ORDERED this 2nd day of December, 2008.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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