James Andre Black v. Cynthia Entzel

Filing 13

ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge Michael W. Fitzgerald, re: Petition for Writ of Habeas Corpus (2241), 1 . The Court concludes that Petitioner failed to properly exhaust his administrative remedies before filing this action. The governments motion to dismiss is GRANTED. The action is DISMISSED without prejudice. IT IS SO ORDERED. Case Terminated. Made JS-6. (mz)

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1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 13 JAMES ANDRE BLACK, 14 Petitioner, 15 16 17 Case No. EDCV 17-1158 MWF (MRW) ORDER DISMISSING ACTION WITHOUT PREJUDICE v. CYNTHIA ENTZEL, Respondent. 18 19 This is a habeas action brought by a federal prisoner. Petitioner claims he is 20 entitled to sentence credits for time served in state custody before the start of his 21 federal sentence. 22 However, Petitioner failed to properly present or exhaust his claim 23 administratively within the Bureau of Prisons before commencing the federal 24 action. For this reason, the Court dismisses the action without prejudice. 25 FACTS AND PROCEDURAL BACKGROUND 26 Petitioner is serving a 300-month federal prison term for bank robbery and 27 assault. At the time of his federal sentencing in 2007, Petitioner was serving a 28 state term of imprisonment. (Docket # 10 at 4.) The federal sentencing judge 1 expressly stated that Petitioner’s federal sentence was to be “served consecutive to 2 the undischarged state term of imprisonment.” (Id.) 3 Beginning in late 2016, Petitioner filed requests with personnel at FCI 4 Victorville to recalculate his sentence and give him credit for time served in state 5 custody before beginning his consecutive federal sentence. After a staff member 6 denied relief, Petitioner received a similar denial of his request from the warden of 7 the institution in January 2017. (Docket # 10-1 at 14, 16.)1 8 9 Petitioner appealed the decision to the BOP’s Western Regional Office (first-level appeal). That office rejected the appeal because Petitioner failed to 10 provide copies of the underlying administrative request and the warden’s decision. 11 The regional office also rejected the appeal because it was untimely (not received 12 within 20 days of the warden’s decision) and without explanation for the delay. 13 (Docket # 10-1 at 18.) Petitioner never resubmitted his first-level appeal. He also 14 never sought a second-level administrative appeal to the BOP’s General Counsel in 15 Washington, D.C. (Docket # 10 at 3.) 16 Instead, Petitioner filed this petition for relief pursuant to 28 U.S.C. § 2241. 17 The petition seeks an order from the Court directing the BOP to credit him for the 18 time served in state custody. (Docket # 1 at 3.) The government moved to dismiss 19 the action due to Petitioner’s failure to exhaust his administrative remedies before 20 initiating habeas review in federal court. The government argues that Petitioner 21 still is entitled (and required) to pursue his first- and second-level administrative 22 appeals. (Docket # 10 at 8-10.) 23 24 Petitioner claims that he filed his first-level appeal on time. Based on the BOP’s rejection of the appeal, he contends that further administrative appeals 25 26 27 28 1 The thrust of the adverse decisions was that the time Petitioner served in state custody was credited against his state sentence. The BOP staff concluded that Petitioner could not get “double credit” for this time against his federal sentence too. (Docket # 10-1 at 14); 18 U.S.C. § 3585(b). 2 1 would be futile, so this Court may consider the merits of his claim. (Docket # 12 2 at 2.) 3 DISCUSSION 4 Applicable Law 5 The BOP has administrative procedures for federal prisoners “to seek formal 6 review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. 7 § 542.10-19 (2012); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The 8 regulations require an inmate to appeal an adverse administrative decision to the 9 Regional Director of the BOP “within 20 calendar days of the date the Warden 10 signed the response.” 28 C.F.R. § 542.15. An inmate “who is not satisfied with 11 the Regional Director’s response” may appeal to the BOP’s General Counsel. That 12 appeal is “the final administrative appeal.” Id. The regulatory time limits can be 13 extended when the inmate demonstrates a valid reason for delay. Id. Valid 14 reasons include circumstances that prevented the inmate from filing on time. 15 28 C.F.R. § 542.14(b). 16 Federal prisoners generally must exhaust their administrative remedies 17 before filing a federal habeas petition under 28 U.S.C. § 2241. Martinez, 804 F.2d 18 at 571; Jiau v. Poole, 590 F. App’x 689, 690 (9th Cir. 2015). Because exhaustion 19 is not a jurisdictional requirement, the district court has discretion to dismiss an 20 unexhausted § 2241 petition without prejudice, or excuse the requirement and 21 reach the merits. Jiau, 590 F. App’x at 690; Pavlovich v. Johnson, No. CV 16-749 22 PSG (SS), 2016 WL 3410195 at *2 (C.D. Cal. 2016). 23 Typically, though, a court’s discretion to excuse the failure to exhaust is 24 limited to situations where administrative remedies are inadequate or ineffective, 25 pursuing them would be futile, or irreparable injury would result. Pavlovich, 2016 26 WL 3410195 at *2; Laing v. Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2004). One 27 key consideration is whether “relaxation of the requirement would encourage the 28 3 1 deliberate bypass of the administrative scheme.” Laing, 370 F.3d at 1000 (citation 2 omitted). 3 Analysis 4 Petitioner concedes that his claim is unexhausted. (Docket # 12 at 1.) He 5 asks that his failure to exhaust his claim “be excused because the administrative 6 remedy was effectively unavailable” to him. (Id. at 2.) 7 Petitioner’s request is without merit. He doesn’t deny that he failed to 8 properly present the materials underlying his claim to the BOP regional office. He 9 does deny that his claim was untimely, but he doesn’t explain why he took no steps 10 to correct the BOP’s conclusion or (if his appeal actually was late) to demonstrate 11 why he was unable to file his request on time. He also did not pursue his claim to 12 a second-level appeal with the BOP’s national office. As a result, the failure to 13 exhaust his claim falls squarely in Petitioner’s lap. 14 Importantly, the government’s submission in this Court strongly suggests 15 that he may still avail himself of the administrative review process. The 16 government states that, should Petitioner re-submit a proper request to the BOP’s 17 regional office, the BOP wishes to “be provided with a full opportunity to consider 18 Petitioner’s request before he turns to this Court for relief.” (Docket # 10 at 10.) 19 That appears to conform to the federal regulations that allow Petitioner to re- 20 submit his appeal (with adequate supporting documents) and demonstrate a valid 21 reason for the delay. 28 C.F.R. §§ 542.14(b), 542.15. Petitioner can also file an 22 appeal to the Office of General Counsel.2 28 C.F.R. § 542.15. 23 The Court concludes that the petition is subject to dismissal due to lack of 24 exhaustion. Martinez, 804 F.2d at 571; Jiau, 590 F. App’x at 690; 28 C.F.R. 25 § 542.15. Further, the Court declines to exercise its discretion to excuse 26 27 28 2 Regardless of the forum, the BOP should closely examine Petitioner’s contention that he submitted his original appeal to the regional office on January 12, but that it was not received until February 3, 2017. (Docket # 12 at 2, attachment.) 4 1 Petitioner’s failure to exhaust. Petitioner offers no proof that pursuing an 2 additional administrative appeal would be futile or that the agency’s administrative 3 process is inadequate. Under the circumstances, the Court will not allow Petitioner 4 to “bypass” the administrative exhaustion process here. Laing, 370 F.3d 5 at 1000-01. 6 CONCLUSION 7 The Court concludes that Petitioner failed to properly exhaust his 8 administrative remedies before filing this action. The government’s motion to 9 dismiss is GRANTED. The action is DISMISSED without prejudice. 10 IT IS SO ORDERED. 11 12 13 Dated: October 2, 2017 14 ___________________________________ HON. MICHAEL W. FITZGERALD UNITED STATES DISTRICT JUDGE 15 16 17 18 19 Presented by: 20 21 22 23 ____________________________________ HON. MICHAEL R. WILNER UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 5

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