Quintero v. Hickey et al
Filing
8
MEMORANDUM OPINION & ORDER: Court orders: (1) Petitioner's 7 MOTION to Expedite writ of habeas corpus is GRANTED; (2) Petitioner's 2241 Petition is DENIED WITHOUT PREJUDICE; (3)this proceeding is DISMISSED WITHOUT PREJUDICE; and (4) Judgment to be entered contemporaneously with Memorandum Opinion and Order in favor of Respondents. Signed by Judge Joseph M. Hood on 11/03/2011.(DAK)cc: COR, Pro Se Petitioner (via U.S. mail), Warden
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JOSE QUINTERO,
Petitioner
v.
DEBORAH A. HICKEY, Warden, et
al.,
)
)
) Civil Action No. 5: 11-CV-256)
JMH
)
)
)
)
MEMORANDUM OPINION
)
AND ORDER
Respondents
****
****
****
****
Jose Quintero (“Quintero”), an inmate incarcerated at the
Federal Medical Center in Lexington, Kentucky (“FMC-Lexington”),
has filed a pro se petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 [DE # 1] and paid the $5 filing fee [DE # 6].
The Petition is before the Court for screening.1
28 U.S.C.
§ 2243; Harper v. Thoms, 2002 WL 31388736, at *1 (6th Cir. 2002).
During screening, the allegations are taken as true and liberally
construed in the pro se Petitioner’s favor.
F.3d 292, 295 (6th Cir. 2001).
Urbina v. Thoms, 270
However, the Court may dismiss the
Petition at any time, or make any such disposition as law and
justice require, if it determines that the Petition fails to
1
This matter is also before the Court on Quintero’s
“Motion To Expedite” the consideration of his habeas petition [DE
#7].
This motion appears to be based on his belief that his
release date should have been September 20, 2011, and that his
continued confinement is unlawful.
establish adequate grounds for relief.
Hilton v. Braunskill, 481
U.S. 770, 775 (1987).
In this action, Quintero challenges the BOP’s decision not to
restore 365 days of statutory good time credit that had previously
been forfeited as a sanction imposed from a prior incident report
and disciplinary hearing.
For the reasons explained below, the
Court will deny Quintero’s § 2241 petition and dismiss same without
prejudice due to his failure to pursue and exhaust his claims
through the BOP’s administrative remedy process.
Upon exhaustion,
if Quintero does not receive the relief he seeks herein, he is free
to file a new habeas petition pursuant to 28 U.S.C. § 2241.
BACKGROUND
On April 19, 1988, Quintero was convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g), and
received a 40-year sentence of imprisonment.
United States v.
Quintero, 87-CR-336, Western District of Texas.
Per the Inmate
Locator feature of the BOP’s website, http://www.bop.gov, his
projected release date is November 20, 2013.
Quintero has been incarcerated for twenty-four (24) years.
During
the
course
of
this
period,
he
has
been
charged
with
infractions of various prison rules on several occasions, resulting
in the forfeiture of various amounts of Statutory Good Time
(“SGT”).
Over the course of this same
time-frame, Quintero has
also had portions of this SGT restored.
Due to his maintaining a
2
clear conduct record for an extended period of time, most of his
SGT has been restored.
In fact, it appears that all of his
forfeited SGT has been restored with the exception of 365 days.
In June of 2011, Quintero was eligible for the restoration of
730 days SGT.
recommended
On June 14, 2011, his Unit Team and Unit Manager
that
365
days
of
his
SGT
be
restored.
This
recommendation was approved by the DHO and through all other levels
of review; thus, Quintero has 365 days of
SGT yet to be restored.
That 365 days is the subject of the present habeas petition.
Quintero claims that he was entitled to the restoration of all 730
days of SGT, not just 365 days,
and that the failure to restore
all of his SGT resulted in his being ineligible for placement in a
Halfway House and having to remain in prison for an additional
period of time.
Quintero asserts that if all forfeited SGT had
been restored, his release date would have been September 20, 2011,
more than two years prior to November 20, 2013, his release date as
calculated by the BOP.
In this action, Quintero requests the Court to order the BOP
to restore his remaining 365 days of forfeited SGT and to order
that he be released from custody.
DISCUSSION/ANALYSIS
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, federal courts consistently require federal prisoners
to fully exhaust the available administrative remedies within the
3
BOP before filing a petition seeking habeas corpus relief pursuant
to Section 2241.
See, e.g., Kendrick v. Carlson, 995 F.2d 1440,
1447 (8th Cir. 1993); Gonzalez v. United States, 959 F.2d 211, 212
(11th Cir. 1992) (per curium); Gambino v. Morris, 134 F.3d 156, 171
(3d Cir.1998); Little v. Hopkins, 638 F.2d 953, 953-954 (6th Cir.
1981) (per curium).
desirable
goals
The exhaustion doctrine promotes a number of
including
filtering
out
frivolous
developing a full and complete factual record.
claims
and
Lyons v. U.S.
Marshals, 840 F.2d 202, 205 (3d Cir. 1988).
The BOP’s Administrative Remedy Program, a three-tier process,
is available to inmates confined in institutions operated by the
BOP for “review of an issue which relates to any aspect of their
confinement,” except tort claims, inmate accident compensation
claims, and Freedom of Information or Privacy Act requests. See 28
C.F.R. §§ 542.10, 542.12(b). To exhaust an administrative remedy,
an inmate must initially attempt to informally resolve the issue
with staff by submitting a BP-8.
See 28 C.F.R. § 542.13(a).
If
informal resolution fails or is waived, an inmate may submit a BP-9
Request to “the institution staff member designated to receive such
Requests (ordinarily a correctional counselor)” within 20 days of
the date on which the basis for the request occurred, or within any
extension permitted.
See 28 C.F.R. 542.14.2
2
Once an inmate initiates the Administrative Remedy process
by filing a BP-9 request with the Warden, the Warden is required to
respond to that request within 20 calendar days; the inmate “may
4
Based on the attachments to Quintero’s habeas petition, on
June 14, 2011, Quintero’s Unit Team and Unit Manager recommended
the restoration of 365 days of forfeited SGT.
The Unit Team
recognized that Quintero was eligible for the restoration of 730
days of SGT; however, for the reasons stated in the Statutory Good
Time Action Notice (Exhibit “C” to habeas petition), the Unit Team
recommended the restoration of only half of that time, 365 days.
Subsequent to this recommendation dated June 14, 2011, there is no
indication that Quintero made any effort to pursue and exhaust his
administrative remedies with respect to this action by his Unit
Team and Unit Manager, by submitting a BP-9 to the Warden and
filing a BP-10 and BP-11 up the chain of administrative review, if
necessary.3
consider the absence of a response” within 20 days or 40 days, if
the inmate has been informed in writing of the need for an
extension, to be a denial. Id. An inmate who is dissatisfied with
the Warden's response to his BP-9 Request may submit a BP-10 Appeal
to the Regional Director of the BOP within 20 days of the date the
Warden signed the response. See 28 C.F.R. § 542.15(a). The inmate
may appeal to the General Counsel on a BP-11 within 30 days of the
date the Regional Director signed the response. Id. Appeal to the
General Counsel is the final administrative appeal.
Id.
The
administrative exhaustion process takes approximately 90 days
absent extensions of time, and would take 120 days if the BOP opts
to extend the time for responding to the claims.
3
Quintero was previously before the Unit Team on September
27, 2010, concerning this same issue, viz., the restoration of the
remainder of his forfeited SGT (730 days). On that occasion, he
did pursue and exhaust his administrative remedies concerning the
Unit Team’s failure to submit form BP-389 for consideration by DHO
Smart, Captain Martinez, and Warden Hickey. The Warden denied his
Request For Administrative Remedy No. 612951-F1, and the Warden’s
5
Since it is apparent that Quintero did not exhaust his
administrative remedies prior to filing this action, this action
will be dismissed without prejudice for failure to exhaust.
Given
Quintero’s projected release date of November 20, 2013, and given
the length of time required to exhaust the administrative remedy
process, Quintero will not be prejudiced by the dismissal of his
present habeas petition without prejudice so that he can avail
himself of the exhaustion process.
If the BOP determines, during
the course of the exhaustion process, that Quintero is entitled to
the relief he seeks herein, viz., restoration of 365 days of SGT,
further judicial review will be unnecessary and the goals of
administrative exhaustion will have been achieved.
CONCLUSION
Accordingly,
(1)
IT IS ORDERED as follows:
Petitioner Jose Quintero’s “Motion To Expedite” [DE #7]
is GRANTED;
(2)
to
his
Petitioner’s § 2241 petition is DENIED WITHOUT PREJUDICE
raising
such
claims
through
the
Bureau
of
Prisons
Administrative Remedy Procedures, 28 C.F.R. § 542.13-19 and filing
a new § 2241 petition, if necessary, if the BOP’s final decision is
adverse to him;
decision was upheld on appeal by Harrell Watts, Administrator,
National Inmate Appeals, on May 6, 2011.
(See Exhibit “E” to
habeas petition).
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(3)
This proceeding is DISMISSED WITHOUT PREJUDICE; and,
(4)
Judgment shall be entered contemporaneously with this
Memorandum Opinion and Order in favor of the Respondents.
This the 3rd day of November, 2011.
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