Hernandez v. Johns

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that Hernandez's 1 Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, be dismissed based on his failure to exhaust his administrative remedies properly. In the alternative, Hernandez's petition should be denied based on the relative merits of his claims. Objections to R&R due by 1/30/2015. Signed by Magistrate Judge James E. Graham on 1/13/2015. (ca) Modified on 1/13/2015 (ca).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

HENRY HERNANDEZ,
Petitioner,
vs.

:

CIVIL ACTION NO.: CV514-080

TRACY JOHNS, Warden,
Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner Henry Hernandez Hernandez ("Hernandez"), who is currently
incarcerated at the D. Ray James Correctional Facility in Folkston, Georgia, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondents filed a
Response. For the reasons which follow, Hernandez's petition should be DISMISSED.
STATEMENT OF THE CASE
Hernandez was sentenced on October 14, 2004, in federal court to a 188 month
sentence based on his conviction for possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841. Hernandez's projected release date is September 7, 2017,
via good conduct time. (Doc. No. 8-2, p. 3). Hernandez's federal sentence was ordered
to run concurrently with his undischarged State of New York sentence. (Id. at p. 7).
Hernandez was sentenced in the State of New York on January 24, 2003, to 42 months'
imprisonment, and he began serving that sentence on February 20, 2003. (Doc. No. 8,
p.7).
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In this petition, Hernandez challenges his release date and his miscalculated
sentence. Based on the attachments to his petition, Hernandez seeks to have the
entirety of April 30, 2002, through December 21, 2003, credited against his federal
sentence. (Doc. No. 1, p. 13).
Respondent contends that Hernandez failed to exhaust his administrative
remedies properly. Respondent also contends that Hernandez has received all of the
credit against his federal sentence to which he is entitled.
DISCUSSION AND CITATION TO AUTHORITY
I.

Exhaustion
"[P]risoners seeking habeas relief, including relief pursuant to [28 U.S.C.] §

2241," must exhaust all available administrative remedies. Skinner v. Wiley, 355 F.3d
1293, 1295 (11th Cir. 2004). If a petitioner fails to exhaust his administrative remedies
before seeking redress in the federal courts, the court should dismiss the case for want
of jurisdiction. Winck v. England, 327 F.3d 1296, 1300 n.1 (11th Cir. 2003) (citing
Hernandez v. United States, 959 F.2d 211, 212 (11th Cir. 1992)). "Also jurisdictional is
'[t]he general rule. . . that a challenge to agency actions in the courts must occur after
available administrative remedies have been pursued." Id. (quoting Boz v. United
States, 248 F.3d 1299, 1300 (11th Cir. 2001)).
In Porter v. Nussle, the United States Supreme Court held that exhaustion of
available administrative remedies is mandatory. 534 U.S. 516, 523 (2002). The
Supreme Court has noted exhaustion must be "proper." Woodford v. Ngo, 548 U S. 81,
92 (2006). "Proper exhaustion demands compliance with an agency's deadlines and
other critical procedural rules because no adjudicative system can function effectively

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without imposing some orderly structure on the course of its proceedings." Id. at 9091.1 In other words, an institution's requirements define what is considered exhaustion.
Jones v. Bock, 549 U.S. 199, 218 (2007). It is not the role of the court to consider the
adequacy or futility of the administrative remedies afforded to the inmate. Higginbottom
v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). The court's focus should be on what
remedies are available and whether the inmate pursued these remedies prior to filing
suit. Id.
Inmates at D. Ray James must exhaust administrative remedies, beginning their
grievance process locally with the Warden by using the contractor's grievance
procedures. 2 (Doc. No. 8, p. 4). This involves an attempt at informal resolution, which,
if unsuccessful, is followed by a formal complaint via a Step I administrative remedy
form. (j). If the inmate is not satisfied with the resolution of the formal complaint, the
inmate may appeal to the BOP's Administrator of the Privatization Management Branch,
so long as the appeal involves BOP related matters. 3 (j at p. 5). If the inmate is not
satisfied with the Privatization Administrator's response, the inmate may make a final
appeal to the BOP's Office of General Counsel.

(j). If an inmate files an

administrative remedy concerning a BOP related matter, the administrative remedies

Although Woodford was a civil rights suit rather than a habeas petition, the Court "noted that the
requirement of exhaustion is imposed by administrative law in order to ensure that the agency addresses
the issues on the merits." Fulpenciio v. Wells, CV309-26, 2009 WL 3201800, at *4 (S.D. Ga. Oct 6,
2009) (emphasis in original) (quoting Woodford, 548 U.S. at 90) (internal punctuation omitted). Thus,
exhaustion requirements are applicable to habeas petitions.
2

The BOP contracts with GEO Group, Inc., to house low security criminal alien inmates at D. Ray James
Correctional Institution. Williams v. D. Ray James Correctional Facility, CV514-26, Doc. No. 10, p. 2
(S.D. Ga.).

Examples of BOP related matters which must be appealed through the BOP are: sentence
computations, reduction in sentences, removal or disallowance of good conduct time, participation in
certain programs, and an inmate's eligibility for early release upon successful completion of the RDAP.
(See Case Number CV5II-69, Doc. No. 8, p.3, n.4).
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will be recorded in the BOP's SENTRY computer database. Pichardo v. United States
of America, (Case Number CV5II-69, Doc. No. 8, p. 3).
The issues raised in Hernandez's petition involve BOP related matters. (S,
n.3). Hernandez filed a BOP administrative remedy during his incarceration at D. Ray
James Correctional Facility concerning the issues raised in his petition. (Doc. No. 8-3,
p. 6). Hernandez then filed an appeal with the Privatization Management Branch, which
was denied on July 7, 2014. (jj. Hernandez filed an appeal with the Office of General
Counsel, which was rejected on September 30, 2014, because Hernandez failed to
submit the appeal in the proper format. (Ld. at p. 7; Doc. No. 8-4, p. 8). Hernandez was
informed that he could resubmit his appeal within fifteen (15) days, and he did not do
so. (Doc. No. 8-3, p. 7).
A petitioner is required to exhaust all available administrative remedies before
filing a cause of action in federal court. Winck, 327 F.3d at 1300 n.1 (citing Boz v.
United States, 248 F.3d 1299, 1300 (11th Cir. 2001)). Because Hernandez did not fully
and properly exhaust his administrative remedies prior to bringing this petition, he has
not exhausted his available administrative remedies regarding the issue raised in his
petition. As Hernandez has not exhausted his available administrative remedies, the
Court lacks subject matter jurisdiction to consider the merits of his petition.
II.

Credit
Even if Hernandez had exhausted his administrative remedies properly before

he filed his cause of action, he is not entitled to his requested relief. It is the duty of the
United States Attorney General, acting through the Bureau of Prisons ("BOP"), to
determine the amount of credit due for the time served by the defendant prior to

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sentencing. United States v. Alexander, 609 F.3d 1250, 1259 (11th Cir. 2010). 18
U.S.C. § 3585, which deals with "credit for prior custody," is controlling for making credit
determinations for sentences imposed under the Sentencing Reform Act of 1984. This
statute provides:
(a) Commencement of sentence. - A sentence to a term of imprisonment
commences on the date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence service of sentence
at, the official detention facility at which the sentence is to be served.
(b) Credit of Prior Custody. - A defendant shall be given credit toward the
service of a term of imprisonment for any time he has spent in official
detention prior to the date the sentence commences -(1) as a result of the offense for which the sentence was imposed;
or
(2) as a result of any other charge for which the defendant was
arrested after the commission of the offense for which the sentence
was imposed;
that has not been credited against another sentence.

18 U.S.C. § 3585 (emphasis added). In determining the proper credit, a two-part
analysis is helpful. First, it must be determined when the sentence commenced. A
sentence "'cannot begin prior to the date it is pronounced, even if made concurrent with
a sentence already being served." Coloma v. Holder, 445 F.3d 1282, 1284 (11th Cir.
2006) (quoting United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980)). Here,
Hernandez's federal sentence began on October 14, 2004, the date his federal
sentence was imposed and ordered to run concurrently with his state sentence. Next, it
must be determined what credit is due for time served prior to the commencement of
Hernandez's federal sentence.

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The court must begin with the plain language of the statute itself. Harris v.
Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc) ("We begin our construction of [a
statutory provision] where courts should always begin the process of legislative
interpretation, and where they often should end it as well, which is with the words of the
statutory provision."). Section 3585(b) clearly states that, in some circumstances, a
defendant is entitled to credit for time served prior to sentence commencement unless
that time has been credited against another sentence.
Hernandez was sentenced in federal court on October 14, 2004, (doc. no. 8, p.
7), and he was released on parole from New York on April 20, 2005. (Ii; Doc. No. 8-2,
p. 34). The federal court ordered that Hernandez's federal sentence run concurrently
with his New York state sentence. (Doc. No. 8-2, p. 7). Because Hernandez's federal
sentence was ordered to run concurrently with his state sentence, it must be determined
whether Hernandez is entitled to prior custody credit toward his federal sentence
pursuant to Willis v. United States, 438 F.2d 923 (5th Cir. 1974), also known as the
Willis doctrine.
The Willis doctrine provides an exception to the double credit" rule "when an
inmate is serving concurrent federal and state terms with a state full-term date that is
equal to or less than the federal full-term date. When this exception applies, an inmate
is entitled to receive Willis credit toward his federal sentence for all pre-sentence, nonfederal custody that occurs on or after the date of the federal offense until the date that
the first sentence (state or federal) begins." Edison v. Berkebile, 349 F. App'x 953, 956
(5th Cir. 2009); Program Statement 5880.28.

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Hernandez was arrested on federal charges on January 21, 2000, and he
escaped custody that same date. (Doc. No. 8, p. 6). Hernandez was arrested in
Nassau County, New York, on April 20, 2002. (Doc. No. 8-2, p. 27). Hernandez was
sentenced in New York state court to 42 months' imprisonment on January 24, 2003.

(j.). Hernandez began serving his state court sentence on February 20, 2003. (L. at
p. 30). To be entitled to "qualified state presentence time", the inmate's federal and
non-federal terms are concurrent and the non-federal raw full term date is equal to or
less than the federal raw full term date .4 "Prior custody credit shall be given for any time
spent in non-federal presentence custody that begins on or after the date of the federal
offense up to the date that the first sentence begins to run, federal or non-federal."
(Doc. No. 8-2, p. 62).
The BOP gave Hernandez credit toward his federal sentence from April 20, 2002,
through February 19, 2003, which are, respectively, the date Hernandez was arrested in
New York and the date before Hernandez began serving his state court sentence
because this time period was deemed to be "qualified state presentence time" under
Willis. (j4 at p. 67). 5 As noted above, Hernandez's state sentence (i.e., his non-federal
sentence) commenced on February 20, 2003. Hernandez's federal sentence was
imposed on October 14, 2004, and his federal sentence was ordered to run concurrently
with his state sentence. The raw full term date on Hernandez's non-federal sentence
was August 19, 2006, and the raw full term date for his federal sentence is June 13,
The raw full term date for both federal and non-federal sentences "is determined by adding the total
length of the sentence to be served to the beginning date of the sentence resulting in a full term date of
sentence.. . that does not include any time credit, e.g., presentence or prior custody time or good time."
(Doc. No. 8-2, p. 59).
Hernandez does not appear to seek credit against his federal sentence for the time period he was
borrowed by the federal government pursuant to a writ of habeas corpus ad prose quendum, which was
from February 24, 2004, through January 27, 2005.
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2020. (Doc. No. 8-2, p. 67). The BOP also gave Hernandez credit for the date he was
arrested by federal agents in Florida (January 21, 2000), which led to the charges for
which he was convicted in federal court. However, Hernandez is not entitled to credit
against his federal sentence from February 20, 2003, until December 21, 2003, the
dates Hernandez claims have not been credited properly against his federal sentence,
because that time period was credited against his state sentence. (Doc. No. 8-1, p. 9).
Hernandez was only entitled to credit against his federal sentence for the non-federal
custody which occurred after the date of his federal offense until the date his state
sentence began, which was February 20, 2003. See 18 U.S.C. § 3585(b) and Edison,
349 F. App'x at 956.

CONCLUSION
Based on the foregoing, it is my RECOMMENDATION that Hernandez's petition
for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, be DISMISSED based on
his failure to exhaust his administrative remedies properly. In the alternative,
Hernandez's petition should be DENIED based on the relative merits of his claims.
17 7t.
SO REPORTED and RECOMMENDED, this (ay of January, 2015.

JAMES E. GRAHAM
UM'ITED STATES MAGISTRATE JUDGE

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