Johnson v. Matevousian

Filing 6

FINDINGS and RECOMMENDATIONS recommending that the instant petition for writ of habeas corpus be DISMISSED without prejudice for failure to exhaust re 1 Petition for Writ of Habeas Corpus filed by Charles Eloy Johnson ; referred to Judge O'Neill; New Case Number is 1:17-cv-1280 LJO-JLT (HC),signed by Magistrate Judge Jennifer L. Thurston on 09/29/17. Objections to F&R due by 10/19/2017 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES ELOY JOHNSON,

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Petitioner,
v.

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ANDRE MATEVOUSIAN, Warden,
Respondent.

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Case No.: 1:17-cv-01280-JLT (HC)
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR FAILURE TO
EXHAUST
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE
[FOURTEEN DAY DEADLINE]

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On September 21, 2017, Petitioner filed this petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2241 in the Sacramento Division of this Court. By order dated September 26, 2017, the

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matter was transferred to the Fresno Division because venue is proper here. Petitioner is a federal

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prisoner challenging the confiscation of funds from his inmate trust account by the Bureau of Prisons

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to satisfy a restitution penalty. Because his claims are unexhausted, the Court will recommend the

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petition be DISMISSED WITHOUT PREJUDICE.

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DISCUSSION
On April 10, 2017, Petitioner was sentenced in the United States District Court for the District
of South Carolina to a term of 384 months and one day, plus 5 years supervised release. (Doc. 1 at

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10.1) In addition, he was ordered to pay a $500.00 special assessment fee and $1,125,550.00 in

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restitution. (Doc. 1 at 10.) He was designated to United States Penitentiary, Atwater, California,

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where he is currently serving his sentence. (Doc. 1 at 11.)
On August 29, 2017, the United States Attorney’s Office contacted Warden Andre

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Matevousian and directed him to encumber Petitioner’s prison trust account to satisfy the restitution

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penalty. (Doc. 1 at 17-18.) On September 9, 2017, the BOP released $5,091.00 from Petitioner’s trust

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account, immediately payable under the Mandatory Victims Restitution Act. (Doc. 1 at 11.)

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Petitioner contends that the BOP lacks the authority to collect restitution, citing Ward v. Chavez, 678

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F.3d 1042, 1051-52 (9th Cir. 2010), and Ybarra v. Smith, 2010 WL 5361833 (D. Az. 2010). (Doc. 1

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at 13.) He asks that the funds be returned and that the BOP be directed not to collect funds to satisfy

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the restitution fine.

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A. Exhaustion

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It is well settled that federal prisoners must generally exhaust their federal administrative

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remedies prior to filing a habeas corpus petition pursuant to 28 U.S.C. § 2241. See Martinez v.

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Roberts, 804 F.2d 570, 571 (9th Cir.1986) (per curiam) (“Federal prisoners are required to exhaust

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their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal

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court.”); see also Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir.2004); Fendler v. U.S. Parole

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Comm'n, 774 F.2d 975, 979 (9th Cir.1985). While the exhaustion requirement is not jurisdictional, its

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importance is well established. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir.1990), overruled on

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other grounds, Reno v. Koray, 515 U.S. 50 (1995); see also Singh v. Napolitano, 649 F.3d 899, 900

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(9th Cir.2011) (per curiam) (as amended) (“In order to seek habeas relief under section 2241 ... a

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petitioner must first, ‘as a prudential matter,’ exhaust his or her available administrative remedies.”)

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(citation omitted); Castro–Cortez v. Immigration & Naturalization Serv., 239 F.3d 1037, 1047 (9th

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Cir.2001) (“[S]ection [2241] does not specifically require petitioners to exhaust direct appeals before

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filing petitions for habeas corpus. However, we require, as a prudential matter, that habeas petitioners

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exhaust available judicial and administrative remedies before seeking relief under § 2241.”) (footnote

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Citations are to ECF pagination.

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omitted), abrogated on other grounds, Fernandez–Vargas v. Gonzales, 548 U.S. 30 (2006). Requiring

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a petitioner to exhaust his administrative remedies aids “judicial review by allowing the appropriate

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development of a factual record in an expert forum.” See Ruviwat v. Smith, 701 F.2d 844, 845 (9th

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Cir.1983) (per curiam). Use of available administrative remedies conserves “the court's time because

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of the possibility that the relief applied for may be granted at the administrative level.” Id. Moreover,

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it allows “the administrative agency an opportunity to correct errors occurring in the course of

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administrative proceedings.” Id.

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Courts have discretion to waive the exhaustion requirement where “administrative remedies
are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture,

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irreparable injury will result, or the administrative proceedings would be void.” Laing v. Ashcroft, 370

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F.3d 994, 1000 (9th Cir.2004) (citation omitted); see also Acevedo–Carranza v. Ashcroft, 371 F.3d

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539, 542 n. 3 (9th Cir.2004). A “key consideration” in exercising such discretion is whether

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“relaxation of the requirement would encourage the deliberate bypass of the administrative scheme.”

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Laing, 370 F.3d at 1000 (quoting Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir.1990)).

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B. BOP Exhaustion Procedures

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The United States provides an “Administrative Remedy Program” through which a BOP

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inmate may “seek formal review of an issue relating to any aspect of his/her confinement.” 28 C.F.R.

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§ 542.10. In order to exhaust available administrative remedies within this system, an inmate must

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proceed through four levels of review.

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“[B]efore an inmate submits a Request for Administrative Remedy,” the inmate must “present

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an issue of concern informally to staff, and staff shall attempt to informally resolve the issue.” 28

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C.F.R. § 542.13(a). If the issue cannot be informally resolved within 20 calendar days from the date

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of the occurrence, the inmate may submit a formal written Administrative Remedy Request on the

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appropriate form (“BP-9”) to the staff member designated to receive these requests, ordinarily a

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correctional counselor. 28 C.F.R. § 542.14. The Warden has 20 calendar days to respond to the BP–

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9, although this time period may be extended once by 20 days with written notice to the inmate. See

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28 C.F.R. § 542.18.

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“An inmate who is not satisfied with the Warden’s response may submit an Appeal on the

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appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the

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Warden signed the response.” 28 C.F.R. § 542.15(a). Once the inmate files the BP–10, the Regional

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Director has 30 calendar days to respond to the appeal, although this time period may be extended

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once by 30 days with written notice to the inmate. See 28 C.F.R. § 542.18.

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“An inmate who is not satisfied with the Regional Director's response may submit an Appeal

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on the appropriate form (BP–11) to the General Counsel within 30 calendar days of the date the

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Regional Director signed the response.” 28 C.F.R. § 542.15(a). Once the inmate files the BP–11, the

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General Counsel has 40 calendar days to respond to the appeal, although this time period may be

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extended once by 20 days with written notice to the inmate. See 28 C.F.R. § 542.18. Pursuant to 28

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C.F.R. § 542.15(a), an “[a]ppeal to the General Counsel is the final administrative appeal.” Thus, the

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administrative process is not complete until either (a) the General Counsel replies, on the merits, to the

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inmate's BP–11, or (b) the time allotted for reply runs without the inmate receiving a response. See 28

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C.F.R. § 542.18.

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In his petition, Petitioner states he has only filed an informal request for resolution. (Doc. 1 at

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2.) He concedes he has not proceeded further. (Doc. 1 at 3.) Thus, Petitioner has not exhausted his

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administrative remedies by proceeding through the remaining three levels of administrative review.

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Petitioner states he has not done so because it would be futile. (Doc. 1 at 3.) The Court is not

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persuaded. Petitioner has only presented an informal request for resolution. He has not filed any

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formal requests for relief with the BOP, and thus, he has not given any of the BOP's formal

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administrative levels of review an opportunity to consider his claim. Thus, the BOP has never denied

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him relief in reliance on official BOP policy. In addition, Petitioner has not given the BOP the

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opportunity to review his claims in light of Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2010).

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Accordingly, this Court concludes that excusing petitioner from seeking administrative review

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would improperly encourage the deliberate bypass of the BOP's administrative review process. See

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Laing, 370 F.3d at 1000. The use of the established administrative process for the petitioner's claim

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would have provided the BOP with an opportunity to correct the alleged error and would promote

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judicial efficiency by developing a factual record at the administrative level. Accordingly, the Court
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declines to excuse petitioner's failure to exhaust his administrative remedies and, therefore,

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recommends that the petition be dismissed for failure to exhaust.

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ORDER

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The Court b the Clerk of the Court to assign this case to a United States District Judge.

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RECOMMENDATION
Accordingly, the Court RECOMMENDS that the instant petition for writ of habeas corpus be

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DISMISSED WITHOUT PREJUDICE for failure to exhaust.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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fourteen days after being served with a copy, any party may file written objections with the Court and

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serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Replies to the objections shall be served and filed within ten court

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days after service of the objections. The Court will then review the Magistrate Judge’s ruling pursuant

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to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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IT IS SO ORDERED.
Dated:

September 29, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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