Amaro v. Rios, Jr.

Filing 34

ORDER DENYING 11 First Amended Petition for Writ of Habeas Corpus and Directing the Entry of Judgment for Respondent signed by Magistrate Judge Sheila K. Oberto on 2/5/2014. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:11-cv-00234-SKO-HC

11 QUINN R. AMARO,
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v.

Petitioner,

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ORDER DENYING THE FIRST AMENDED
PETITION FOR WRIT OF HABEAS CORPUS
(DOC. 11) AND DIRECTING THE ENTRY
OF JUDGMENT FOR RESPONDENT

HECTOR A. RIOS, JR.,
Respondent.

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Petitioner is a federal prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.

Pursuant to 28 U.S.C. 636(c)(1), the parties have

consented to the jurisdiction of the United States Magistrate Judge
to conduct all further proceedings in the case, including the entry
of final judgment, by manifesting their consent in writings signed
by the parties or their representatives and filed by Petitioner on
April 14, 2011, and on behalf of Respondent on August 25, 2011.
Pending before the Court is the first amended petition (FAP), filed
on March 25, 2011.

Respondent filed an answer on December 27, 2011,

with supporting exhibits.

Although the time for filing a traverse
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I.

Jurisdiction

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Because the petition was filed after April 24, 1996, the

4 effective date of the Antiterrorism and Effective Death Penalty Act
5 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

6 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
7 1499 (9th Cir. 1997).
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Petitioner, who is serving a sentence imposed for a federal

9 offense, alleges that the prison authorities incorrectly calculated
10 his release date in violation of federal law.

Because Petitioner is

11 complaining of the manner in which the Federal Bureau of Prisons
12 (BOP) or United States Parole Commission (USPC) has executed his
13 sentence, this Court has subject matter jurisdiction over the
14 petition pursuant to 28 U.S.C. § 2241, which provides that relief by
15 way of a writ of habeas corpus extends to a person in custody in
16 violation of the Constitution of laws or treaties of the United
17 States.

28 U.S.C. ' 2241(c)(3); Brown v. United States, 610 F.2d

18 672, 677 (9th Cir. 1990).
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When Petitioner filed the petition, Petitioner was an inmate of

20 the United States Penitentiary at Atwater, California (USPA), which
21 is located within the territorial boundaries of the Eastern District
22 of California.

(Doc. 1, 1.)

Petitioner named as Respondent the

23 warden of USPA and thus named a respondent with the power to produce
24 the Petitioner.

See, Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004);

25 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484,
26 494–95 (1973); Brittingham v. United States, 982 F.2d 378, 379 (9th
27 Cir. 1992).

The Court thus has jurisdiction over the person of the

28 Respondent pursuant to 28 U.S.C. §§ 2241(a) and 84(b).
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II.

Background

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Petitioner contends that his “two-thirds release date,” or

3 mandatory parole date, which had previously been calculated to be
4 April 10, 2011, on the basis of a sentence of thirty (30) years, was
5 erroneously re-calculated by the BOP to be April 10, 2101, on the
6 basis of 120 years.

Petitioner alleges that this calculation is

7 contrary to the Youth Corrections Act (YCA) and the sentence imposed
8 by the sentencing court, and he seeks a hearing before the USPC as a
9 remedy.

(FAP, doc. 11, 3-7.)

Respondent argues that the FAP is

10 subject to dismissal because Petitioner has failed to exhaust
11 available administrative remedies and is subject to denial because
12 Petitioner’s mandatory parole date has been properly computed.
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With respect to Petitioner’s four murder convictions, on August

14 27, 1981, the United States District Court for the Southern District
15 of California sentenced Petitioner “on each of counts 5, 6, 7 and 8
16 of the superseding Indictment consecutively” to life imprisonment.
17 (Doc. 29-1, 2.)

Petitioner was also sentenced to a term of fifty

18 (50) years imprisonment on count 1 for conspiracy to commit murder,
19 to be served consecutively to the life sentences imposed on counts
20 5, 6 ,7, and 8.

(Id.)

The sentencing court later modified the

21 judgment to provide for the fifty-year term imposed on the
22 conspiracy count to run concurrently with the four life sentences,
23 but the consecutive terms for each of the four murders were not
24 affected by the modification.
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(Doc. 29-6, 2.)

Petitioner received numerous reviews by the USPC with respect

26 to his mandatory parole date.

A memorandum dated October 6, 2010,

27 to the USPC Commissioner from USPC Case Services Administrator
28 Deirdre Jackson reflects that while conducting a case review of
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1 Petitioner’s co-defendant, legal staff at the USPC learned that the
2 BOP had initially miscalculated Petitioner’s projected mandatory
3 release date to be April 10, 2011, by treating the four life
4 sentence terms as running concurrently, rather than consecutively.
5 The memorandum indicated that the correct mandatory release date is
6 April 10, 2101.

The memorandum recommended a special parole

7 reconsideration hearing, which was twice scheduled but waived by
8 Petitioner due to a lack of representation, and then followed by
9 notification sent in April 2011 to Petitioner that the hearing
10 before the USPC would be scheduled as soon as Petitioner notified
11 them that he had secured representation.

(Ray Decl., doc. 29, ¶¶ 2-

12 5, 12-17, attchmts. 10-16.)
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III.

A.

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Failure to Exhaust Administrative Remedies
Background

Petitioner admits he received notice of the change of the

16 release date on October 19, 2010, and he learned that it had
17 occurred at the request of the USPC, which had reviewed the case of
18 a co-defendant and instructed the BOP to change Petitioner’s release
19 date to “April 10, 2101.”

Petitioner admits that in March 2011 he

20 waived a hearing before the USPC because he was not represented by
21 counsel; he was directed to contact the USPC as soon as he had
22 representation in regard to a hearing set for November 2011.

(FAP

23 3-4.)
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Petitioner was informed of his failure to allege exhaustion of

25 administrative remedies in this Court’s order dismissing
26 Petitioner’s originally filed petition.
27 2011.)

(Doc. 9, filed Feb. 24,

On April 6, 2011, Petitioner initiated within the prison

28 system a request for an administrative remedy in which he claimed
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1 that the Youth Corrections Act (YCA) Coordinator at FCI Englewood
2 had failed to “guide” BOP and USPC staff concerning their
3 programming responsibilities relative to the YCA with respect to his
4 sentence.

Prison authorities responded that Petitioner’s mandatory

5 release date had been recalculated because the BOP originally had
6 miscalculated the date based on a failure to appreciate the
7 consecutive nature of Petitioner’s multiple life terms for the four
8 murders.
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Petitioner then appears to have changed the apparent focus of

10 the grievance to a failure of guidance more generally with respect
11 to YCA programming.

(Decl. of Jennifer Vickers, BOP paralegal

12 specialist, doc. 30; docs 30-2 through 30-4.)

This administrative

13 appeal was denied.
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Respondent concedes that Petitioner has exhausted his

15 administrative remedies with regard to the issue raised in
16 Administrative Remedy ID Numbers 635466-F1, 635466-R1 and 635466-A1.
17 Respondent argues, however, that this programming issue is not
18 related closely enough to the issue Petitioner raises in this
19 Petition for Petitioner to be deemed to have exhausted his
20 administrative remedies.
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B.

Analysis

As a “prudential matter,” federal prisoners are generally

23 required to exhaust available administrative remedies before
24 bringing a habeas petition pursuant to 28 U.S.C. § 2241.

Huang v.

25 Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004) (quoting Castro-Cortez
26 v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)); Martinez v. Roberts,
27 804 F.2d 570, 571 (9th Cir. 1986).

The exhaustion requirement

28 applicable to petitions brought pursuant to § 2241 is judicially
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1 created and is not a statutory requirement; thus, a failure to
2 exhaust does not deprive a court of jurisdiction over the
3 controversy.

Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990),

4 overruled on other grounds, Reno v. Koray, 515 U.S. 50, 54-55
5 (1995).

If a petitioner has not properly exhausted his or her

6 claims, a district court in its discretion may either excuse the
7 faulty exhaustion and reach the merits, or require the petitioner to
8 exhaust his administrative remedies before proceeding in court.
9 Brown v. Rison, 895 F.2d at 535.
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Exhaustion may be excused if the administrative remedy is

11 inadequate, ineffective, or if attempting to exhaust would be futile
12 or would cause irreparable injury.

Fraley v. United States Bureau

13 of Prisons, 1 F.3d 924, 925 (9th Cir. 1993); United Farm Workers of
14 America v. Arizona Agr. Emp. Rel. Bd., 669 F.2d 1249, 1253 (9th Cir.
15 1982).

Failure to exhaust administrative remedies may be excused

16 where an official policy of the BOP requires denial of the claim.
17 Ward v. Chavez, 678 F.3d 1042, 1045-46 (9th Cir. 2012).

Factors

18 weighing in favor of requiring exhaustion include whether 1) agency
19 expertise makes agency consideration necessary to generate a proper
20 record and reach a proper decision, 2) relaxation of the requirement
21 would encourage the deliberate bypass of the administrative scheme,
22 and 3) administrative review is likely to allow the agency to
23 correct its own mistakes and to preclude the need for judicial
24 review.

Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-81 (9th Cir.

25 2003) (citing Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir.
26 1990)).
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Respondent contends that the Ninth Circuit of Appeals has

28 adopted a standard outlining the level of specificity required in
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1 prison grievances, namely, that when a prison's grievance procedures
2 are silent or incomplete as to factual specificity, “a grievance
3 suffices if it alerts the prison to the nature of the wrong for
4 which redress is sought.”

Griffin v. Arpaio, 557 F.3d 1117, 1120

5 (9th Cir. 2009) (concerning application of the Prisoner Litigation
6 Reform Act in a suit pursuant to 42 U.S.C. § 1983).

The court noted

7 that a grievance need not include legal terminology, legal theories,
8 or even every fact necessary to prove each element of an eventual
9 legal claim, but rather must only perform a grievance’s primary
10 purpose of alerting the prison to a problem and facilitating its
11 resolution.
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Id.

Under this standard, Petitioner’s generalized complaint

13 concerning failure to comply with program statements providing for
14 institutional guidance concerning YCA programming did not serve to
15 alert the BOP that Petitioner believed his projected release date
16 had been incorrectly computed.

Petitioner even criticized an

17 institutional response that had focused specifically on the
18 calculation of his release date.
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(Doc. 30-3, 2.)

Accordingly, it might be concluded that Petitioner has failed

20 to exhaust his administrative remedies, and his petition may be
21 dismissed.
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IV.

Consideration of the Merits of the Petition

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Alternatively, it might be concluded that Petitioner’s initial

24 efforts at exhaustion were sufficiently specific or that exhaustion
25 of Petitioner’s administrative remedies was excused because of
26 futility based on the USPC’s or BOP’s reliance on BOP Program
27 Statement 5880.30 (doc. 29, ¶¶ 18-19, att. 17) to compute
28 Petitioner’s mandatory release date.
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If the merits of Petitioner’s claim concerning miscalculation

2 of his mandatory release date are considered, it appears Petitioner
3 has not shown that the calculation of his mandatory release date was
4 contrary to federal law.
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Before its repeal subsequent to Petitioner’s offense, 18 U.S.C.

6 § 4206(d) provided in pertinent part, “Any prisoner, serving a
7 sentence of five years or longer, who is not earlier released under
8 this section or any other applicable provision of law, shall be
9 released on parole after having served two-thirds of each
10 consecutive term or terms, or after serving thirty years of each
11 consecutive term or terms of more than forty-five years including
12 any life term, whichever is earlier....”
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(Emphasis added.)

Petitioner was sentenced in 1981 under the YCA, pursuant to

14 which he might be released to the custody of the Attorney General
15 and was eligible for forms of early supervised release at the end of
16 his term.

(Doc. 29-1, 2; 18 U.S.C. §§ 5010, 5017.)

However, the

17 intent of Congress after 1976 with respect to § 4206 was to render
18 youthful offenders subject to the same standards of release as other
19 offenders.

Benites v. United States Parole Commission. 595 F.2d

20 518, 520 (9th Cir. 1979).
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Further, federal regulatory law is consistent with Respondent’s

22 position.

Although special, additional programming requirements

23 might apply to YCA offenders, see, e.g., 28 C.F.R. § 2.64, mandatory
24 release of a YCA offender proceeds as with adults.

Title 28 C.F.R.

25 § 2.53 provides as follows:
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(a) A prisoner (including a prisoner sentenced under
the Narcotic Addict Rehabilitation Act, Federal Juvenile
Delinquency Act, or the provisions of 5010(c) of the
Youth Corrections Act) serving a term or terms of 5 years
or longer shall be released on parole after completion
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of two-thirds of each consecutive term or terms or after
completion of 30 years of each term or terms of more than
45 years (including life terms), whichever comes earlier,
unless pursuant to a hearing under this section, the
Commission determines that there is a reasonable
probability that the prisoner will commit any Federal,
State, or local crime or that the prisoner has frequently
or seriously violated the rules of the institution
in which he is confined. If parole is denied pursuant
to this section, such prisoner shall serve until the
expiration of his sentence less good time. (Emphasis added.)

8 28 C.F.R. § 2.53.
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In sum, Petitioner has not pointed to any federal law that
would render erroneous the calculation of his release date based on
thirty (30) years for each of four (4) consecutive terms, for a
total of 120 years.

The Court concludes that Petitioner has not

14 shown his sentence is being executed in violation of federal law.
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Accordingly, if the merits of the petition are considered, the

16 petition should be denied.
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V. No Certificate of Appealability Is Required
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A certificate of appealability is not required to appeal the
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denial of a petition under § 2241. Forde v. United States Parole
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Commission, 114 F.3d 878, 879 (9th Cir. 1997). This is based on the
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plain language of § 2253(c)(1), which does not require a certificate
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with respect to an order concerning federal custody because the
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detention complained of does not arise out of process issued by a
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state court. Id.
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VI. Disposition
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In accordance with the foregoing analysis, it is ORDERED that:
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1) The petition for writ of habeas corpus is DENIED;
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2) The Clerk shall ENTER judgment for Respondent.

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IT IS SO ORDERED.
Dated:

February 5, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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