Sullivan v. Hendershot

Filing 34

ORDER DISMISSING AMENDED PETITION UNDER 28 U.S.C. § 2241 FOR A WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY re: 9 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/30/2013. ~ Order also GRANTS Respondent Dennis Hendershot's MOTION to Dismiss or Deny Petition for Writ of Habeas Corpus Filed under 28 U.S.C. § 2241. Motion: doc no. 26 ~ (afc)CERTIFICATE OF SERVICEParticipants regist ered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on October 31, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSEPH W. SULLIVAN,

)
)
Plaintiff,
)
)
vs.
)
)
DENNIS HENDERSHOT, Acting
)
Warden,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 12-00204 LEK-BMK

ORDER DISMISSING AMENDED PETITION UNDER
28 U.S.C. § 2241 FOR A WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY
Before this Court are: pro se Petitioner Joseph W.
Sullivan’s (“Sullivan”) Amended Petition under 28 U.S.C. § 2241
for a Writ of Habeas Corpus (“Petition”), filed on November 13,
2012, [dkt. no. 9;] and Respondent Dennis Hendershot’s, Acting
Warden (“Respondent”), Motion to Dismiss or Deny Petition for
Writ of Habeas Corpus Filed under 28 U.S.C. § 2241 (“Respondent’s
Motion”), filed March 14, 2013 [dkt. no. 26].

Sullivan filed his

reply to Respondent’s Motion (“Reply”) on April 12, 2013.
no. 28.]

[Dkt.

After careful consideration of the Petition, supporting

and opposing memoranda, and the relevant legal authority, this
Court HEREBY GRANTS Respondent’s Motion, DISMISSES Sullivan’s
Petition WITHOUT PREJUDICE, and DENIES a certificate of
appealability, for the reasons set forth below.

BACKGROUND
On September 30, 2010, a grand jury indicted Sullivan
in a two-count indictment in United States v. Sullivan, CR 1000680 LEK, for wire fraud, in violation of 18 U.S.C. § 1343.

On

June 15, 2011, a grand jury indicted Sullivan in United States v.
Sullivan, CR 11-00604, for one count of making false statements
in an application for a United States passport, in violation of
18 U.S.C. § 1542.
each case.

Sullivan ultimately entered a guilty plea in

This Court sentenced Sullivan to, inter alia,

concurrent terms of fifty-five months’ imprisonment and three
years of supervised release as to each of the two counts in CR
10-00680 and the count in CR 11-00604.
each case on November 3, 2011.

Judgment was entered in

[CR 10-00680, dkt. no. 61; CR 11-

00680, dkt. no. 28.]
In determining Sullivan’s sentence, this Court imposed
a two-level obstruction of justice adjustment, pursuant to United
States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)
§ 3C1.1, for obstruction of justice in CR 10-00680 because of the
conduct charged in CR 11-00604.

The basis of the charge in CR

11-00604 was that, while he was on pretrial release for CR 1000680, Sullivan attempted to obtain a passport under the name
Donald Elbert Allen with a false birth certificate and a false
State of Hawai`i identification card (“the Allen Passport”).

2

In the Petition, Sullivan seeks relief pursuant to
§ 2241 because the Federal Bureau of Prisons (“BOP”) failed to
apply a pre-sentencing time credit pursuant to 18 U.S.C.
§ 3585(b) for the seven months he spent in home confinement prior
to his arrest for the charge in CR 11-00604.

Sullivan argues

that the home confinement was “time he has spent in official
detention[,]” based on this Court’s finding, in connection with
the obstruction of justice adjustment, that Sullivan was “in
custody” when he tried to obtain the Allen Passport.
STANDARD
This district court has described the standard of
review for a § 2241 petition as follows:
Under 28 U.S.C. § 2241, habeas corpus relief
is available to a federal prisoner in custody
under the authority of the United States if he can
show he is “in custody in violation of the
Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(1),(3). While a
federal prisoner challenging the validity or
constitutionality of a conviction must bring a
petition for writ of habeas corpus under 28 U.S.C.
§ 2255, a petitioner challenging the manner,
location, or conditions of the execution of that
sentence is required to bring a petition for writ
of habeas corpus under 28 U.S.C. § 2241. See
Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.
2000) (“Generally, motions to contest the legality
of a sentence must be filed under § 2255 in the
sentencing court, while petitions that challenge
the manner, location, or conditions of a
sentence’s execution must be brought pursuant to
§ 2241 in the custodial court.”); Tucker v.
Carlson, 925 F.2d 330, 331 (9th Cir. 199[1])
(stating that a challenge to the execution of a
sentence is “maintainable only in a petition for
habeas corpus filed pursuant to 28 U.S.C.
3

§ 2241”). Under § 2241, a habeas corpus petition
must be brought in the judicial district of the
petitioner’s custodian. Hernandez, 204 F.3d at
865.
Blankenship v. Meeks, CV. No. 11–00443 DAE–KSC, 2011 WL 4527408,
at *2 (D. Hawai`i Sept. 28, 2011).
DISCUSSION
I.

28 U.S.C. § 2255 Motion
This Court must first address the Government’s

arguments that this Court lacks jurisdiction over the Petition to
the extent that it raises challenges that Sullivan should have
raised in a direct appeal or in a § 2255 motion.

Although the

claim in the Petition relies upon this Court’s sentencing rulings
regarding the obstruction of justice adjustment, the Petition
does not challenge the validity or constitutionality of his
convictions and sentences.1

The Petition challenges a decision

that the BOP made in the execution of his sentences.

This Court

therefore concludes that the instant Petition does not allege any
claim that Sullivan should have brought either in a direct appeal
or in a § 2255 motion.

1

Sullivan’s original petition, filed on April 18, 2012,
included a challenge to the obstruction of justice adjustment
itself. This Court ordered Sullivan to file an amended § 2241
petition omitting the challenge to the obstruction of justice
adjustment and to file that claim in separate § 2255 motions in
both CR 10-00680 and CR 11-00604. Sullivan did so, and this
Court has addressed the § 2255 motions in a separate order.
4

II.

Exhaustion of Administrative Remedies
Respondent also argues that this Court should dismiss

the Petition because Sullivan failed to exhaust the
administrative grievance process to challenge the computation of
his sentence.

[Respondent’s Motion at 4 (citing Respondent’s

Motion, Decl. & Certification of Records by Forest Kelly2 (“Kelly
Decl.”) at ¶¶ 4-5; 28 C.F.R. § 542.10, et seq.).]
three-level administrative review process.

The BOP has a

First, a prisoner may

file a Request for Administrative Remedy at his correctional
institution.

If the institution rules against him, the prisoner

can appeal to the regional office for the geographic region where
his correctional institution is located.

If the regional appeal

is denied, the final level of administrative review is an appeal
to the Office of General Counsel.

[Kelly Decl. at ¶ 4.]

Sullivan did not file any administrative appeal to challenge the
computation of his sentence.

[Id. at ¶ 5.]

The Ninth Circuit has stated:
As a prudential matter, courts require that habeas
petitioners exhaust all available judicial and
administrative remedies before seeking relief
under § 2241. Castro–Cortez v. INS, 239 F.3d
1037, 1047 (9th Cir. 2001), abrogated on other
grounds, Fernandez–Vargas v. Gonzales, 548 U.S.
30, 126 S. Ct. 2422, 165 L. Ed. 2d 323 (2006).
This exhaustion requirement is subject to waiver
in § 2241 cases because it is not a
2

Kelly is a Correctional Programs Specialist with the BOP
Designations and Sentence Computation Center. [Kelly Decl. at
¶ 1.]
5

“jurisdictional prerequisite.” Id. Typically,
exhaustion can be waived “if pursuing those
[administrative] remedies would be futile.”
Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925
(9th Cir. 1993).
Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (alteration
in Ward).

Ward only completed the first step of the BOP’s three-

step review process.

The Ninth Circuit held that the district

court erred when it refused to waive the exhaustion requirement
because, where the denial of Ward’s initial grievance was based
on official BOP policy, further pursuit of the grievance process
would have been futile.

Id. at 1045-46.

Sullivan argues that it would have been futile for him
to go through the administrative review process because the BOP
excluded the “home detention” period pursuant to official BOP
policy.

Unlike Ward, Sullivan did not complete any steps of the

administrative review process.

The Ninth Circuit has indicated

that it is the reliance on official BOP policy, not the number of
completed review steps, which creates futility:
In waiving exhaustion, the Sours[3] court relied
on our opinion in Fraley [v. United States Bureau
of Prisons], which held there was futility where
the petitioner’s claim was denied based on
official BOP policy. Fraley, 1 F.3d [924,] 925
[(9th Cir. 1993)]. The petitioner in Sours,

3

This refers to Sours v. Chavez, No. 2:08–cv–01903–SRB,
Dkt. No. 22, slip op. at *2–3 (D. Ariz. June 17, 2009) (report
and recommendation) (concluding exhaustion not required where
request for relief denied based on official BOP policy), as cited
in Sours v. Chavez, No. CV08–1903–PHX–SRB, 2009 WL 2714028, at *1
(D. Ariz. Aug. 26, 2009) (parallel citation omitted).
6

unlike Ward, had gone through three out of four
levels of BOP review, Sours, No.
2:08–cv–01903–SRB, Dkt. No. 22, slip op. at *3–4.
But it was the reliance on the “official policy”
that led to a finding of futility in Sours (and
Fraley), and the Sours court expressly noted that
the level of Sours’s exhaustion simply showed his
petition was even more futile than Fraley, where
the prisoner had gone through only one level of
review. Sours, No. 2:08–cv–01903–SRB, Dkt. No.
22, at *3–4.
Id. at 1046 (emphasis in Ward).

Cases such as Ward, where the

prisoner completed at least one level of review, are
distinguishable from the instant case because, in those cases,
the agency had at least one opportunity to address the prisoner’s
claim, and there is a record of the reason why the agency
rejected it.

In Sullivan’s case, however, the BOP never

considered his claim that it should have given him credit for his
time in “home detention” because Sullivan did not seek any
administrative review.

Kelly explains that, in preparing

Sullivan’s sentence computation, the BOP did not credit that
period because:
Program Statement 5880.28, Sentence Computation
Manual (CCCA of 1984), provides that time spent in
“home confinement” as a condition of release from
detention on bond, is not creditable toward a
federal term of imprisonment under the provisions
of Title 18 U.S.C. § 3585(b). This guidance to
staff relies upon the mandate of the Supreme Court
in Reno v. Koray, 515 U.S. 50, 60-63 (1995).
[Kelly Decl. at ¶ 13 (some citations omitted).]

Kelly’s

declaration, however, is merely based on his review of BOP
documents and electronic data regarding Sullivan’s sentence;
7

there is no indication that he participated in the preparation of
Sullivan’s sentence computation.

The Government also submitted a

print-out of Sullivan’s Public Information Inmate Data as of 0313-2013 (“Data Sheet”).

[Id., Attachment 1.]

The Data Sheet

shows that the BOP gave Sullivan “JAIL CREDIT” for October 26,
2010 and May 31, 2011 to October 26, 2011.

[Id. at 3.]

October

26, 2010 was the date of Sullivan’s arrest for the charges in CR
10-00680; he was released on bond later that day.
at ¶ 7.]

[Kelly Decl.

May 31, 2011 was the date of Sullivan’s arrest for the

charge in CR 11-00604, and October 26, 2011 was the day before
his sentencing hearing.

[Id. at ¶¶ 10, 12.]

On October 29,

2010, the district judge modified Sullivan’s conditions of
pretrial release to include “HOME DETENTION.”

[Id. at ¶ 8.]

Thus, the Data Sheet is evidence that the BOP did not give
Sullivan jail credit for the period of his home detention.

The

Data Sheet, however, does not indicate the reason why the BOP
determined that Sullivan was not entitled to credit for that
period.
The Ninth Circuit has set forth the following factors
that a court should consider when deciding whether to require
prudential exhaustion of administrative remedies:
(1) agency expertise makes agency consideration
necessary to generate a proper record and reach a
proper decision; (2) relaxation of the requirement
would encourage the deliberate bypass of the
administrative scheme; and (3) administrative
review is likely to allow the agency to correct
8

its own mistakes and to preclude the need for
judicial review.
Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (quotation
marks and some citations omitted) (quoting Noriega-Lopez v.
Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)).
All of these factors weigh against waiver of the
exhaustion requirement.

First, although BOP Program Statement

5880.28, Sentence Computation Manual (CCCA of 1984) (“PS
5880.28”) - the policy governing the classification of home
confinement periods - is available to this Court, [Kelly Decl.,
Attachment 12,] there is no evidence in the record that the BOP
in fact relied on PS 5880.28 when it decided that Sullivan was
not entitled to jail credit for his home detention period.
Second, relaxing the exhaustion requirement in this case is
likely to encourage prisoners to deliberately bypass the BOP’s
administrative review process in its entirety.

Third, without

opining on whether or not a mistake was made in this case,
administrative review would allow the BOP to correct any mistake
in the preparation of Sullivan’s sentence computation and may
eliminate the need for judicial review.

This Court therefore

declines to excuse Sullivan’s failure to exhaust his
administrative remedies.
The Ninth Circuit has stated that, “[w]hen a petitioner
does not exhaust administrative remedies, a district court
ordinarily should either dismiss the petition without prejudice
9

or stay the proceedings until the petitioner has exhausted
remedies, unless exhaustion is excused.”

Leonardo v. Crawford,

646 F.3d 1157, 1160 (9th Cir. 2011) (citations omitted).
Sullivan has not requested a stay, and this Court finds that the
circumstances of this case do not warrant a stay.

This Court

therefore GRANTS Respondent’s Motion and DISMISSES Sullivan’s
Petition.

The dismissal is WITHOUT PREJUDICE to the filing of a

new § 2241 petition after Sullivan has exhausted his
administrative remedies.4

4

Although this Court emphasizes that it makes no findings
at this time as to the merits of Sullivan’s claim, this Court
notes that the exclusion of Sullivan’s “home detention” period is
consistent with PS 5880.28, which is the BOP’s implementation of
the United States Supreme Court’s holding in Reno v. Koray, 515
U.S. 50 (1995). Further, although the Government argued in the
sentencing proceedings, and this Court found, that Sullivan
attempted to “escape from custody” by trying to obtain the Allen
Passport during his home detention, that finding did not bind the
BOP in its determination of the issue of whether Sullivan was
entitled to credit for time served pursuant to 18 U.S.C.
§ 3585(b). See United States v. Checchini, 967 F.2d 348, 350
(9th Cir. 1992). Thus, it is arguably futile for Sullivan to go
through the BOP’s administrative review process. However, in
light of its analysis of the Puga factors, this Court cannot
excuse waive Sullivan’s obligation to exhaust his administrative
remedies.
10

II.

Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases5

in the United States District Courts provides that “[t]he
district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.”

In light

of the dismissal of Sullivan’s § 2241 Petition, this Court must
address whether to grant Sullivan a certificate of appealability
(“COA”).
This district court has recognized that:
A COA may issue only if the petitioner “has made a
substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
“The standard for a certificate of
appealability is lenient.” Hayward v. Marshall,
603 F.3d 546, 553 (9th Cir. 2010) (en banc),
overruled on other grounds by Swarthout v. Cooke,
131 S. Ct. 859 (2011). The petitioner is required
to demonstrate only “that reasonable jurists could
debate the district court’s resolution or that the
issues are adequate to deserve encouragement to
proceed further.” Id. (citation and internal
quotation marks omitted). The standard “requires
something more than the absence of frivolity but

5

The Rules Governing Section 2254 Cases also apply to
§ 2241 petitions. See Tanner v. MacDonald, Civ. No. 11–00255
SOM/RLP, 2011 WL 1598838, at *1 n.2 (D. Hawai`i Apr. 27, 2011)
(citing Castillo v. Pratt, 162 F. Supp. 2d 575, 577 (N.D. Tex.
2001) (“The Supreme Court intended the 2254 Rules to apply to
petitions filed under § 2241; United States v. Recinos–Gallegos,
151 F. Supp. 2d 659 (D. Md. 2001) (dismissing petition construed
as falling under § 2241 pursuant to Rule 4). See also Rule 1(b)
of the 2254 Rules”); Ukawabutu v. Morton, 997 F. Supp. 605, 608
n.2 (D.N.J. 1998) (“I refer to these rules [i.e., Rules Governing
Section 2254 Cases] as the ‘Habeas Corpus Rules’ because they
apply to petitions filed pursuant to [§ 2241] as well as
[§ 2254.]”) (alterations in Tanner)).
11

something less than a merits determination.”
(internal quotation marks omitted).

Id.

Claxton v. United States, Civ. No. 12–00433 JMS–KSC, 2013 WL
1136704, at *11 (D. Hawai`i Mar. 18, 2013).
This Court has carefully reviewed Sullivan’s § 2241
Petition and liberally construed the allegations therein.
Sullivan, however, failed to exhaust his administrative remedies
prior to filing his § 2241 Petition, and this Court cannot excuse
Sullivan’s failure to exhaust under the circumstances of this
case.

This Court concludes that reasonable jurists could not

find this Court’s exhaustion rulings to be debatable.
Accordingly, this Court DENIES issuance of a COA.
CONCLUSION
On the basis of the foregoing, this Court HEREBY GRANTS
Respondent’s Motion to Dismiss or Deny Petition for Writ of
Habeas Corpus Filed under 28 U.S.C. § 2241, filed March 14, 2013,
insofar as Sullivan’s Amended Petition under 28 U.S.C. § 2241 for
a Writ of Habeas Corpus, filed November 13, 2012, is HEREBY
DISMISSED WITHOUT PREJUDICE.

Further, this Court also DENIES a

certificate of appealability.
IT IS SO ORDERED.
//

12

DATED AT HONOLULU, HAWAII, October 30, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JOSEPH SULLIVAN VS. DENNIS HENDERSHOT, ACTING WARDEN; CIVIL NO.
12-00204 LEK-BMK; ORDER DISMISSING AMENDED PETITION UNDER 28
U.S.C. § 2241 FOR A WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND
DENYING CERTIFICATE OF APPEALABILITY

13