Oliver v. Owens et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable James B. Zagel on 2/23/2016. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EVERETT OLIVER,
Petitioner,
v.
No. 15 C 7189
Judge James B. Zagel
ANGELA OWENS, Warden, MCC Chicago,
Respondent.
MEMORANDUM OPINION AND ORDER
Petitioner Everett Oliver brings a Petition for Writ of Habeas Corpus (the “Petition”) under
28 U.S.C. § 2241, challenging his loss of 27 days of good conduct time, 33 days of non-vested time,
and eligibility for a one-year sentence reduction for participating in a residential drug abuse program
(“RDAP”). Oliver is serving an 84-month sentence for possession with intent to distribute cocaine
base, and he is presently housed at the Metropolitan Correctional Center, Chicago (“MCC Chicago”).
Now before this Court is Respondent Angela Owens’ motion to dismiss. For the following reason,
this motion is granted.
FACTS
Oliver was arrested in July 2008 and, after pleading guilty, sentenced to 84 months
imprisonment in July 2010. When Oliver was transferred to a BOP residential re-entry center
(“RRC”) on March 19, 2015, his provisional good conduct release date was calculated to be
September 19, 2015, based on good-conduct credit and a provisional sentence reduction of one year
for participating in RDAP. At the RRC, Oliver was given a copy of the conditions of home detention
that outlined various rules and expectations that applied to individuals on home detention. These
conditions explicitly stated that he was required to remain at his place of residence, except for
employment, unless given specific permission to do otherwise. Oliver agreed to accept phone calls
from the RRC staff to verify his presence at his home. Oliver also agreed that any failure to inform
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RRC staff of his whereabouts could constitute an escape from federal custody. Oliver was also
informed that a violation of escape between one and four hours would result in program revocation.
Oliver accepted the conditions of home detention and acknowledged receipt of the RRC handbook.
On the evening of June 28, 2015, while he was required to remain at home, Oliver failed to
answer eight separate calls to his residence between 10:17 p.m. and 11:17 p.m. and was placed on
escape status. When Oliver was successfully contacted at his home telephone at 11:57 p.m., he was
instructed to return to the RRC the following morning by 9:30 a.m.
The next day, Oliver appeared at the RRC and was given notice of a center disciplinary
committee (“CDC”) hearing to be held on July 1, 2015, regarding his alleged violation: escape (1 to 4
hours). The notice informed Oliver that he was entitled to have a staff member represent him at the
hearing and that he would have the right to call witnesses and present documentary evidence at the
hearing. Oliver declined his staff representative, and he also declined to identify any witnesses for the
hearing.
At the CDC hearing, Oliver denied the charge of escape (1 to 4 hours), stating that he was
at home during the period in question but that the phone cord had become disconnected from the
wall. Oliver did not call any witnesses to support his story, and he initialed the CDC report to
indicate that he did not request any witnesses. The CDC ultimately found that, based on his failure to
answer multiple spot check phone calls during the night of June 28, 2015, the greater weight of the
evidence indicated that Oliver was not at home during the time period in question, and therefore he
had committed an escape. The CDC did not credit Oliver’s assertion that he was at home but the
phone jack had come unplugged from the wall because he had not presented any witnesses who
could verify that he was home or any other evidence beyond his own testimony. The CDC
recommended the appropriate loss of good conduct time.
Following the hearing, the disciplinary hearing officer reviewed the findings of the CDC
and imposed sanctions. As a sanction, Oliver was disallowed 27 days of good conduct time and he
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also forfeited 33 days of non-vested time. The final disposition was delivered to Oliver on July 23,
2015, and Oliver was advised of his right to appeal the disposition within 20 calendar days through
the administrative remedy program.
As a result of the CDC’s findings, the transitional drug abuse treatment coordinator
requested removal of Oliver’s provisional one-year sentence reduction for participating in the RDAP.
Oliver was unable to complete the RDAP requirements because, according to PS 5330.11, inmates
are to be removed from RDAP immediately if a disciplinary hearing officer finds that they have
committed a prohibited act involving escape. Following the disallowance of good conduct time and
the removal of the RDAP sentence reduction, Oliver’s current release date via his remaining goodtime credits is November 10, 2016.
Oliver was returned to the MCC in Chicago on July 31, 2015. Oliver appealed the
disciplinary hearing officer’s decision, but his appeal was rejected because it was not filed until
August 20, 2015, 28 days after Oliver had received the disciplinary officer’s decision and beyond the
20-day period in which Oliver could have timely appealed the determination administratively. Oliver
submitted an administrative appeal of that decision to the BOP Office of General Counsel, but that
appeal was also rejected because his initial appeal had been untimely.
DISCUSSION
As a threshold matter, this Court must determine whether Petitioner exhausted his
administrative remedies. Although there is no statutory obligation to exhaust administrative remedies
under Section 2241, the general common law rule is that a petitioner must exhaust his administrative
remedies before seeking relief from this Court. Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir.
2004). The purpose of exhaustion is to protect administrative agency authority and to promote
judicial efficiency. Id. at 1017-18.
In order to exhaust his administrative remedies, “a federal prisoner must comply with the
Administrative Remedy Program promulgated by the BOP, which ‘allows an inmate to seek formal
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review of an issue relating to any aspect of his/her own confinement.’” Martinez v. Cross, No. 13 C
15, 2015 WL 1186794, at *2 (S.D. Ill. Mar. 12, 2015) (quoting 28 C.F.R. § 542.10). Where the
matter involves an appeal of a disciplinary hearing officer decision, inmates are “not required to first
attempt information resolution or to file a BP-9 at the institutional level.” Moon v. Walton, No. 12 C
1152, 2014 WL 788895, at *2 (S.D. Ill. Feb. 27, 2014). Rather, disciplinary hearing officer “appeals
shall be submitted initially to the Regional Director for the region where the inmate is currently
located.” 28 C.F.R. § 542.14(d)(2). Further, the deadline for submission of an administrative remedy
appeal of a disciplinary hearing officer action to the regional director is 20 calendar days following
the date on which the basis for the request occurred. 28 C.F.R. § 542.14(a), (d)(2). An inmate who is
not satisfied with the regional director’s response may submit an appeal to the General Counsel
within 30 days of the date the regional director signed the response. 28 C.F.R. § 542.15(a).
Exhaustion of administrative remedies is excused only when: (1) requiring exhaustion
would cause prejudice, due to unreasonable delay or an indefinite timeframe for administrative
action; (2) the agency lacks the ability or competence to resolve the issue or grant the relief
requested; (3) appealing through the administrative process would be futile because the agency is
biased or has predetermined the issue; or (4) substantial constitutional questions are raised. Gonzalez,
355 F.3d at 1016; see also Sanchez v. Miller, 792 F.2d 694, 697-99 (7th Cir. 1986). Satisfying any
exception is a “high” hurdle, see Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004)—one that
Petitioner cannot clear.
Although Oliver eventually appealed the disciplinary hearing officer’s decision (after he
had already filed his habeas petition), his appeal was untimely. Oliver alleges (without supporting
evidence) that someone told him to file a BP-10 form rather than a BP-9 form. He claims that he had
30 days to file a BP-10 form (as opposed to the 20 days allowed for a BP-9 form), but this is not true.
A BP-10 form is due “within 20 calendar days” just like a BP-9 form. 28 C.F.R. § 542.15(a) (BP-10
deadline is 20 days); 28 C.F.R. § 542.14(a) (BP-9 deadline is 20 days). So whether Oliver was told to
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file a BP-9 or BP-10, he was still required to file it within 20 days of receiving notice on July 23,
2015, that he had been found to have committed “escape.”
Next, Oliver argues that he timely filed the BP-10 form by mailing it on August 10, 2015
(18 days after he received notice) even though BOP records show that the form was not received and
logged until August 20, 2015 (28 days after he received notice). Oliver seeks to invoke the “mailbox
rule” to argue that he “filed” the form within 20 days. Under the applicable regulations, however, an
inmate’s request or appeal “is considered filed on the date it is logged into the Administrative
Remedy Index as received.” 28 C.F.R. § 542.18. Therefore, Oliver’s administrative appeal was not
filed until the BOP received it on August 20, 2015, which was beyond the 20-day deadline. Because
this regulation plainly states that inmate administrative appeals are not “filed” until they have been
received and logged, courts have determined that the “mailbox rule” does not apply to federal
prisoners’ attempts to exhaust their administrative remedies. Schreane v. Thomas, No. 14 C 246,
2014 WL 5493190, at *4 (M.D. Pa. Oct. 30, 2014); Nigro v. Sullivan, 40 F.3d 990, 996 (9th Cir.
1994).
Oliver also argues that his exhaustion should be excused because he was unable to exhaust
before September 19, 2015, the date he would have been released had he not lost a portion of his
good-time credits and his RDAP sentence reduction. As Judge Blakey recently held in a similar case,
however, a petitioner who is unable to exhaust his administrative remedies before the date he would
have been released had he not lost a portion of his good-time credits must nonetheless exhaust his
administrative remedies before filing a habeas petition in federal court. Jones v. Owens, No. 15 C
7034, 2015 WL 9304494, at *2-3 (N.D. Ill. Dec. 22, 2015). This exhaustion requirement does not
prejudice a petitioner because “inmates may receive quicker relief by following prison administrative
procedures than by skipping ahead to federal court.” Id. at *2.
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CONCLUSION
Oliver was required to file an administrative remedy appeal within 20 days, but he did not
actually file the appeal until 28 days after he received notice of the disciplinary decision. Oliver’s
failure to meet the deadline to file an administrative appeal constitutes a procedural default, barring
habeas review. Oliver’s Petition for Writ of Habeas Corpus is therefore dismissed with prejudice.
The Clerk is directed to enter a Rule 58 Judgment in favor of Respondent and against Petitioner.
Civil case terminated.
ENTER:
James B. Zagel
United States District Judge
DATE: February 23, 2016
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