Gonzales v. Terrell

Filing 11

ORDER ENTERED: The petition for a writ of habeas corpus is dismissed without prejudice. Petitioner's motion 10 for a decision on his petition is now moot. Signed by Senior District Judge Richard D. Rogers on 06/15/09. (smnd)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

ARTEMIO GONZALES, Petitioner, v. DUKE TERRELL, Respondent. CASE NO. 07-3104-RDR

ORDER Petitioner proceeds pro se on a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Having reviewed the record which

includes respondents' answer, petitioner's traverse, and subsequent supplemental pleadings by both parties, the court finds the petition should be dismissed. Petitioner challenges the execution of his federal sentence, essentially seeking concurrent service of his federal sentence with his Texas state sentence. Specifically, petitioner seeks additional prior custody credit for time he was held pursuant to a federal writ of habeas corpus ad prosequendum before being returned to Texas to continue service to of his state sentence, on his and a nunc pro tunc upon

designation

effect

service

federal

sentence

petitioner's return to state custody for continued service of his state sentence. Respondents argue in part for dismissal of the petition without prejudice, based upon petitioner's through the failure office to of fully nation exhaust inmate

administrative

remedies

appeals.1

Respondents

cite

rejections

of

petitioner's

national

appeal as not properly filed because too many pages were attached. The central office allowed petitioner to resubmit his appeal in proper format, but when petitioner did so, the central office again rejected the appeal as having too many pages. Rather than

resubmitting his appeal a second time, petitioner filed the instant petition in federal court. In response, petitioner contends he exhausted administrative remedies to the best of his capacity, and as characterizes overbearing limited the and legal

administrative prejudicial, training.

exhaustion little

requirements regard to

with

petitioner's

Petitioner further contends his appeals to the central

office were improperly rejected because his local and regional appeals had been considered and decided rather than being rejected for improper format, and because he fully complied with the

regulations to the extent comparable appeals to the central office from other prisoners had been accepted. Petitioner also maintains

further submission of his appeal to the central office would have been futile as that office had twice rejected it on procedural grounds. It is well settled that claims raised in petitions filed pursuant to 28 U.S.C. § 2241 must be exhausted before a federal

Respondents alternatively contend that petitioner is entitled to no relief on the merits of his claims. Petitioner further addressed the merits of his claims in his traverse. Although a court is not precluded from denying a habeas petition on its merits without addressing an exhaustion issue, U.S. v. Eccleston, 521 F.3d 1249, 1253 (10th Cir. 2008), cert. denied, --- U.S. ----, 129 S.Ct. 430 (2008), the court declines to do so in this case where petitioner's proper exhaustion of available administrative remedies could impact the merits of his claim. Id. (Dissent) at 1255-56. 2

1

court will hear them.

Burger v. Scott, 317 F.3d 1133, 1144, n.8

(10th Cir. 2003)(citing Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000)). 1986)(applying challenging the See Williams v. O'Brien, 792 F.2d 986 (10th Cir. exhaustion execution requirement of his to federal prisoner This

sentence)(per

curiam).

exhaustion requirement is satisfied only through proper use of the available administrative procedures. 81, 90 (2006). See Woodford v. Ngo, 548 U.S.

"Proper exhaustion demands compliance with an

agency's deadlines and other critical procedural rules because no adjudicative system can function properly without imposing some orderly structure on the course of its proceedings." Id. at 90-91. While it is recognized that the exhaustion requirement "is not applicable when the prisoner has no adequate remedy such that exhaustion would be futile," Wilson v. Jones, 430 F.3d 1113, 1118 (10th Cir. 2005), cert. denied, 549 U.S. 943 (2006), this futility exception is narrow. It is applies only if no opportunity for

redress is available, or if the corrective process is so clearly deficient as to render further efforts for relief futile. Beavers

v. Saffle, 216 F.3d 918, 924 n. 3 (10th Cir. 2000)(citing and quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)). Petitioner

bears the burden of demonstrating his exhaustion of administrative remedies, Williams, 792 F.2d at 987, and thus must demonstrate the claimed futility exception applies to excuse his acknowledged

failure to exhaust administrative remedies in this case. Petitioner fails to do so. Petitioner makes no showing that the restrictions on his proper submission of his administrative appeal to the central office were unduly burdensome, or that recent controlling authority dictated an 3

adverse resolution of his central appeal if he were to properly submit it. Finding no showing that petitioner's full and proper

exhaustion of administrative remedies would be patently futile, the court agrees with respondents that petitioner has not exhausted available administrative remedies on his claims, and concludes the petition should be dismissed without prejudice. See Williams, 792

F.2d at 986-87 (federal prisoner who did not use administrative procedure to challenge allegedly unlawful execution of sentence was not entitled to habeas corpus review). IT IS THEREFORE ORDERED that the petition for a writ of habeas corpus is dismissed without prejudice IT IS FURTHER ORDERED that petitioner's motion for a decision on his petition (Doc. 10) is now moot. DATED: This 15th day of June 2009, at Topeka, Kansas.

s/ Richard D. Rogers RICHARD D. ROGERS United States District Judge

4