Ochoa v. Johns et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Ochoa's 1 Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, and DIRECT the Clerk to CLOSE this case. It is further RECOMMEN DED that the Court DENY Ochoa leave to proceed in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 10/4/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 9/20/2017. (ca)

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

JUAN RAMON OCHOA,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-31

v.
WARDEN T. JOHNS,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Juan Ramon Ochoa (“Ochoa”), who is currently housed at D. Ray James
Correctional Institution (“D. Ray James”) in Folkston, Georgia, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 8.)
For the reasons which follow, I RECOMMEND that the Court DISMISS without prejudice
Ochoa’s Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Ochoa in forma
pauperis status on appeal.
BACKGROUND
Ochoa is currently serving a 168-month federal sentence for conspiracy to distribute
cocaine, methamphetamine, and marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1).
(Doc. 8-1, pp. 4–6.) He has a projected release date of October 14, 2017. (Id. at p. 5.)
Ochoa states that the Department of Homeland Security, Bureau of Immigration and
Customs Enforcement (“ICE”), issued a detainer against him in June 2005, then again on July
27, 2010, and in December 2016. (Doc. 1-1, p. 2.) It is not clear from Ochoa’s Petition what he
requests the Court do in this case. However, it appears that Ochoa seeks to have the Court

remove the immigration detainer against him so that he may be eligible for halfway house
placement. Respondent asserts that the Court should not review the relative merits of Ochoa’s
Petition because he has not exhausted his available administrative remedies.

(Doc. 8.)

Additionally, Respondent argues that the Court cannot grant Ochoa the relief he seeks.
DISCUSSION
I.

Whether Ochoa Exhausted his Administrative Remedies
A.

Legal Requirements for Exhaustion

The Eleventh Circuit Court of Appeals has held that a Section 2241 petitioner’s failure to
exhaust administrative remedies is not a jurisdictional defect. Santiago-Lugo v. Warden, 785
F.3d 467, 474 (11th Cir. 2015); see also Fleming v. Warden of FCI Tallahassee, 631 F. App’x
840, 842 (11th Cir. 2015) (“[Section] 2241’s exhaustion requirement was judicially imposed, not
congressionally mandated, and . . . nothing in the statute itself support[s] the conclusion that the
requirement [is] jurisdictional.”).

Nevertheless, the Eleventh Circuit has noted “that the

exhaustion requirement is still a requirement and that courts cannot ‘disregard a failure to
exhaust . . . if the respondent properly asserts the defense.’” Id. (citing Santiago-Lugo, 785 F.3d
at 475). Failure to exhaust administrative remedies is an affirmative defense and inmates are not
required to specially plead or demonstrate exhaustion in their complaint. Jones v. Bock, 549
U.S. 199, 216 (2007).

However, the normal pleading rules still apply, and dismissal is

appropriate when an affirmative defense appears on the face of a complaint—making it clear that
a prisoner cannot state a claim for relief. Id. at 214–15. Thus, when a party admits in his
complaint or petition that he has not exhausted the grievance process, dismissal is warranted.
See Okpala v. Drew, 248 F. App’x 72 (11th Cir. 2007); Cole v. Ellis, No. 5:10-CV-00316-RSGRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec. 28, 2010); Rashid v. Liberty Cty. Jail, CV410-

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092, 2010 WL 3239241, at *1 n.1 (S.D. Ga. May 3, 2010) (“Nothing in Jones . . . forbids the
Court from dismissing a complaint pursuant to [42 U.S.C.] § 1997e(a) if it is clear from the face
of the complaint that the prisoner has not exhausted all administrative remedies available to
him.”).
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)).

Furthermore, requiring

exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the
administration of prisons” and allows “corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548
U.S. 81, 93 (2006). 1
The United States Supreme Court has noted exhaustion must be “proper.” Id. at 92.
“Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural
rules because no adjudicative system can function effectively without imposing some orderly
structure on the course of its proceedings.” Id. at 90–91. In other words, an institution’s
requirements define what is considered exhaustion. Jones, 549 U.S. at 218. 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

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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.” Fulgengio 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.

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should be on what remedies are available and whether the inmate pursued these remedies prior to
filing suit. Id.
Thus, under the law, prisoners must do more than simply initiate grievances; they must
also appeal any denial of relief through all levels of review that comprise the agency’s
administrative grievance process. Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (“To
exhaust administrative remedies in accordance with the PLRA [Prison Litigation Reform Act],
prisoners must ‘properly take each step within the administrative process.’”) (quoting Johnson v.
Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL
201269 (S.D. Ga. Jan. 27, 2007) (finding that a plaintiff who is still awaiting a response from the
warden regarding his grievance is still in the process of exhausting his administrative remedies).
B.

Standard of Review for Exhaustion

“Even though a failure-to-exhaust defense is non-jurisdictional, it is like” a jurisdictional
defense because such a determination “ordinarily does not deal with the merits” of a particular
cause of action. Bryant, 530 F.3d at 1374 (internal punctuation and citation omitted). Further, a
judge “may resolve factual questions” in instances where exhaustion of administrative remedies
is a defense before the court. Id. In these instances, “it is proper for a judge to consider facts
outside of the pleadings and to resolve factual disputes so long as the factual disputes do not
decide the merits and the parties have sufficient opportunity to develop a record.” Id. at 1376.
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit set forth a
“two-step process” that lower courts must employ when examining the issue of exhaustion of
administrative remedies. First, the court is to take the plaintiff’s version of the facts regarding
exhaustion as true. Id. at 1082. If, even under the plaintiff’s version of the facts, the plaintiff has
not exhausted, the complaint must be dismissed. Id. However, if the parties’ conflicting facts

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leave a dispute as to whether plaintiff has exhausted, the court need not accept all of plaintiff’s
facts as true. Id. Rather, “the court then proceeds to make specific findings in order to resolve
the disputed factual issues[.]” Id. “Once the court makes findings on the disputed issues of fact,
it then decides whether under those findings the prisoner has exhausted his available
administrative remedies.” Id. at 1083. The Eleventh Circuit has held that a district court may
consider materials outside of the pleadings and resolve factual disputes regarding exhaustion in
conjunction with a Rule 12(b)(6) motion to dismiss so long as the factual disputes do not decide
the merits of the case. See Bryant, 530 F.3d at 1376–77.
C.

Analysis of Ochoa’s Efforts at Exhaustion

In his Petition, Ochoa concedes that he did not pursue any administrative remedies before
filing suit. (Doc. 1, p. 2.) Respondent asserts that Ochoa has never pursued any of the available
administrative measures at any of the required levels. (Doc. 8-1, pp. 1–2, 8.) Ochoa has not
provided any reply to this contention.
Inmates at D. Ray James must exhaust administrative remedies, beginning their grievance
process locally with the Warden by using the contractor’s grievance procedures. (Id. at p. 2.)
This involves an attempt at informal resolution, which, if unsuccessful, is followed by filing a
formal complaint with the Warden using a BP-9 form.

(Id.)

An inmate may appeal the

Warden’s response to the inmate’s complaint by filing a BP-10 firm with the Regional Director.
(Id.) If the Regional Director denies the appeal, the inmate may then file a final appeal with the
Office of General Counsel in Washington, D.C. by submitting a BP-11 form. (Id.)
The evidence before the Court reveals that Ochoa did not submit any administrative
remedy filings at all, much less filings related to the allegations raised in his Petition. (Id. at
pp. 1–2, 8.) Additionally, based on Respondent’s submissions, it appears that administrative

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remedies are available to Ochoa, and Ochoa has raised no contentions to the contrary. Thus,
under the second Turner step, the Court finds Respondent’s account of Ochoa’s exhaustion to be
the more credible account.
Accordingly, the Court should DISMISS Ochoa’s claims for failure to exhaust.
III.

Whether Ochoa is “in Custody” Pursuant to the ICE Detainer for Section 2241
Purposes
Additionally, because Ochoa is not in ICE’s custody, he cannot challenge the propriety of

his ICE detainer via a Section 2241 Petition.

“A detainer serves to advise another law

enforcement agency that the [Department of Homeland Security] seeks custody of an alien
presently in the custody of that agency, for the purpose of arresting and removing the alien.”
8 C.F.R. § 287.7(a). “The detainer is a request that such agency advise the Department, prior to
release of the alien, in order for the Department to arrange to assume custody, in situations when
gaining immediate physical custody is either impracticable or impossible.” Id.
The Eleventh Circuit has held that challenges to immigration detainers may only be
brought under certain limited circumstances not present here.

Orozco v. Immigration and

Naturalization Servs., 911 F.2d 539, 541 (11th Cir. 1990). 2 However, the Eleventh Circuit has
also held that the filing of a detainer, standing alone, does not cause a prisoner to come within
the custody of DHS or ICE. Oguejiofor v. Att’y Gen. of the U.S., 277 F.3d 1305, 1308 n.2 (11th
Cir. 2002); Orozco, 911 F.2d at 541. This position is in accord with several other Courts of
Appeals. See, e.g., Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 539 (5th Cir. 2003); Garcia

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Since Orozco, the Eleventh Circuit has held that challenges to removal proceedings cannot be brought
under Section 2241. Themeus v. U.S. Dep’t of Justice, 643 F. App’x 830, 832 (11th Cir. 2016)
(“Following enactment of the REAL ID Act of 2005, district courts lack habeas jurisdiction to entertain
challenges to final orders of removal.”).

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v. Taylor, 40 F.3d 299, 303–04 (9th Cir. 1994); Santana v. Chandler, 961 F.2d 514, 516 (5th Cir.
1992); Prieto v. Gulch, 913 F.2d 1159, 1162 (6th Cir. 1990); Mohammed v. Sullivan, 866 F.2d
258, 260 (8th Cir. 1989). “The underlying rationale of these courts is that a detainer, as
distinguished from other [ICE] orders, does not put a ‘hold’ on” the individual. Ryan v. Dep’t of
Homeland Sec., No. 3:09cv399/LAC/MD, 2010 WL 1433166, at *1 (N.D. Fla. Mar. 8, 2010);
accord Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994) (noting that the lodging of
a detainer, without more, is insufficient to render the alien “in custody”).
Generally, a detainer is viewed as “an informal process advising prison officials that a
prisoner is wanted on other pending charges and requesting notification prior to the prisoner’s
release.” Id. (internal citation omitted). “In the immigration context, a detainer usually serves
only as a notice to prison authorities that . . . ICE is going to be making a decision about the
deportability of the alien in the future.” Id. (citing Campillo v. Sullivan, 853 F.2d 593, 595 (8th
Cir. 1988)). “The reasoning follows that the detainer does not serve to establish conclusively
either present or future restraints on the prisoner’s liberty.” Id. “Because there is no actual claim
to the individual following the completion of his criminal sentence, there is no custody.” Id.
Thus, Ochoa is not “in custody” of ICE for purposes of Section 2241 simply because ICE
lodged a detainer against him. Furthermore, Ochoa does not contend that ICE served him with
an order to show cause or a final deportation order or that there was some other reason he should
be considered in the custody of ICE. See Alanis-Bustamonte v. Reno, 201 F.3d 1303, 1309
(11th Cir. 2000) (a show cause order, in combination with a warrant on a detainer, are
prerequisites to formal commencement of removal proceedings). Because Ochoa is not “in
custody” of ICE at this time, this Court lacks subject matter jurisdiction under 28 U.S.C. § 2241
to address his claim.

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Accordingly, this provides additional, independent grounds for the Court to DISMISS
Ochoa’s Petition. 3
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Ochoa leave to appeal in forma pauperis. Though Ochoa

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of
party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal
is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).

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Respondent also contends that, to the extent Ochoa seeks placement in a halfway house, the Court
cannot grant him that relief. (Doc. 8, pp. 3–5.) Respondent explains that an inmate has no right to be in
any particular institution, and BOP’s discretionary placement decisions are not subject to judicial review.
However, while Ochoa’s Petition is difficult to follow, it does not appear that he directly requests
placement in a halfway house. Rather, it appears he is asking the Court to remove the detainer against
him so that he may then be eligible for halfway house placement. Regardless, if Ochoa does request
placement in a halfway house, the Court cannot grant him that relief for the reasons stated in
Respondent’s brief and Ochoa’s failure to exhaust his administrative remedies. (Id.)
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Given the above analysis of Ochoa’s Petition and Respondent’s Response, there are no
non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus,
the Court should DENY Ochoa in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS without prejudice
Ochoa’s Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), and
DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND that the Court
DENY Ochoa leave to proceed in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Ochoa and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of September,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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