Verduzco v. Martinez

Filing 5

MEMORANDUM ORDER granting 2 Motion to Amend/Correct Petition and denying 3 Motion for Emergency Relief. IT IS FURTHER ORDERED that Verduzco amend his complaint within thirty (30) days of the filing of this Order. Signed by Magistrate Judge Thomas P LeBlanc on 1/6/2025. (crt,Devillier, W)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
MANUEL VERDUZCO
REG. # 43200-424

DOCKET NO. 2:24-cv-00597
SECTION P

VERSUS

JUDGE JAMES D. CAIN, JR.

WARDEN MARTINEZ

MAGISTRATE JUDGE LEBLANC
MEMORANDUM ORDER

Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241
by pro se petitioner Manuel Verduzco on May 3, 2024. Doc. 1. Verduzco is an inmate in the
custody of the Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional
Center at Oakdale, Louisiana (“FCIO”). On October 17, 2024, petitioner filed a Motion to Amend
the pending petition (doc. 2) and a Motion for Emergency Relief (doc. 3).
This matter has been referred to the undersigned for review, report, and recommendation
in accordance with 28 U.S.C. § 636 and the standing orders of this Court.
I.

BACKGROUND
Verduzco’s original petition challenges the decision to deny him a prerelease custody
transfer to a Residential Re-entry Center (RRC) or Home Confinement (HC). Doc. 1. In his
amended complaint, he alleges that the Bureau of Prisons (“BOP), “without due process or logical
explanation,” has changed his release date and removed his earned time credits. Doc. 2, p. 2. He
seeks emergency relief, asking this Court to order the BOP to immediately restore his original
release date. Doc. 3.

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II.
LAW & ANALYSIS
A. Screening of Habeas Corpus Petitions
A district court may apply any or all the rules governing habeas petitions filed under 28
U.S.C. § 2254 to those filed under § 2241. See Rule 1(b), Rules Governing § 2254 Cases in the
United States District Courts. Rule 4 of the Rules Governing § 2254 Cases authorizes preliminary
review of such petitions, and states that they must be summarily dismissed “[i]f it plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to relief.” Id. at Rule
4. To avoid summary dismissal under Rule 4, the petition must contain factual allegations pointing
to a “real possibility of constitutional error.” Id. at Rule 4, advisory committee note (quoting Aubut
v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly, we review the pleadings and exhibits
before us to determine whether any right to relief is indicated, or whether the petition must be
dismissed.
B. Exhaustion
A § 2241 petition on behalf of a sentenced prisoner “attacks the manner in which a sentence
is carried out or the prison authorities’ determination of its duration.” Pack v. Yusuff, 218 F.3d 448,
451 (5th Cir. 2000). In order to prevail, a § 2241 petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
An initial issue that must be addressed is whether petitioner is required to exhaust
administrative remedies. Generally, a federal prisoner must exhaust his administrative remedies
before seeking habeas relief in federal court under § 2241. Skinner v. Wiley, 355 F.3d 1293, 1295
(11th Cir. 2004), cert. denied, 124 S. Ct. 2112 (2004); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.
1994); see also Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993). Exceptions to the exhaustion
requirement apply only in “extraordinary circumstances” and the petitioner bears the burden of
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demonstrating the futility of administrative review. Fuller, 11 F.3d at 62; Gardner v. School Bd.
Caddo Parrish, 958 F.2d 108, 112 (5th Cir. 1992).
The BOP, which administers the prison in which petitioner is incarcerated, has a four-step
process for resolving complaints by prisoners. Initially, a prisoner must attempt to informally
resolve the complaint with staff. 28 C.F.R. § 542.13(a). If informal attempts are unsuccessful, the
prisoner must submit a Request for Administrative Remedy to the Warden. 28 C.F.R. § 542.14. If
the prisoner is not satisfied with the Warden’s response, he may appeal to the Regional Director.
28 C.F.R. 542.15. If still unsatisfied, the prisoner may appeal to the Office of General Counsel.
Id.
The Attorney General has vested the BOP with authority to determine issues related to the
manner in which sentences are to be carried out, including the calculation of sentence credits. 28
C.F.R. § 0.96. If the BOP miscalculated petitioner’s sentence or release date, it has the authority
to correct that error and should be permitted to do so. See Smith v. Thompson, 937 F.2d 217, 219
(5th Cir. 1991) (agency should be given opportunity to correct its own error before aggrieved party
seeks judicial intervention). Further, the fact that petitioner believes his grievances will be denied
does not make the remedy futile. See Adams v. Warden, 2017 U.S. Dist. LEXIS 124404 at *3
(W.D. La. July 5, 2017).
Before this matter can proceed any further, petitioner must amend to provide proof that he
exhausted available remedies regarding ALL CLAIMS presently before this Court, so that the
Court may review the BOP’s responses to his requests or show why he should be excused from
this requirement.

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III.

CONCLUSION
For this court to determine whether the petition should survive initial review, Verduzco
must amend his complaint within the next 30 days and provide (1) a copy his BP-8 (Informal
Complaint), BP-9 (Administrative Remedy Request to the Warden), BP-10 (Administrative
Remedy Request to the Regional Director) and BP-11 (Administrative Remedy Request to BOP
General Counsel); and (2) a copy of the responses to the BP-8, BP-9, BP-10 and BP-11. If the
administrative remedy response indicates that his claim was not properly exhausted, Verduzco
must explain why an exception to the exhaustion requirement applies to his case or provide
documentation showing that the BOP’s conclusion is incorrect. Otherwise, his suit is subject to
dismissal for failure to exhaust.
Accordingly,
IT IS ORDERED that the petitioners’ Motion to Amend (doc. 2) is GRANTED.
IT IS FURTHER ORDERED that because respondent has not yet been directed to answer
the petition, petitioner’s request for an emergency hearing and immediate release (doc. 3) is
DENIED as premature. See Al-Shabazz v. Scarantino, 2024 U.S. Dist. LEXIS 68525 (E.D. N.C.,
April 24, 2024).
IT IS FURTHER ORDERED that Verduzco amend his complaint within thirty (30) days
of the filing of this order to prove exhaustion of all claims presently before this Court, as outlined
above.
Failure to comply with this order may result in dismissal of the claims above under Rule 4
of the Rules Governing § 2254 Cases, or under Rule 41(b) of the Federal Rules of Civil Procedure.
See Link v. Wabash R. Co., 82 S. Ct. 1386 (1962). Verduzco is further required to notify the court

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of any change in his address under LR 41.3. Failure to do so will result in a recommendation that
this action be dismissed without prejudice.
THUS DONE AND SIGNED in chambers this 6th day of January, 2025.

____________________________________
THOMAS P. LEBLANC
UNITED STATES MAGISTRATE JUDGE

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