LOFTON v. ZICKEFOOSE
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 4/19/2012. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GERALD LOFTON,
Petitioner,
v.
DONNA ZICKEFOOSE,
Respondent.
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Civil Action No. 11-3693 (RMB)
OPINION
APPEARANCES:
Petitioner pro se
Gerald Lofton
31627-160
FCI FORT DIX
P.O. Box 2000
Fort Dix, NJ 08630
Counsel for Respondent
Mark Christopher Orlowski
Office of the U.S. Attorney
District of New Jersey
402 East State Street
Room 430
Trenton, NJ 08608
BUMB, District Judge
Petitioner Gerald Lofton, a prisoner currently confined at
the Federal Correctional Institution at Fort Dix, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 22411 and has paid the $5 filing fee.
Because it appears from a review of the relevant record that
Petitioner is not entitled to relief, the Petition will be
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Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
(c) The writ of habeas corpus shall not extend to a prisoner
unless-- ... (3) He is in custody in violation of the
Constitution or laws or treaties of the United States ... .
dismissed.
I.
BACKGROUND
Petitioner was convicted in the United States District Court
for the Northern District of Ohio for Conspiracy to Possess With
Intent to Distribute Cocaine Base (violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 841(B)(1)(A)) and Felon in Possession
of a Firearm (violation of 18 U.S.C. § 922(G)(1)).
On June 18,
2008, he was sentenced to a term of 240 months imprisonment with
a 10 year term of supervised release.
Applying the available
Good Conduct Time (“GCT”), the projected release date is
September 11, 2025.
Petitioner brings this petition stating that the Bureau of
Prisons incorrectly calculated his GCT based on time served
rather than sentence imposed, allegedly resulting in seven fewer
days of credit per year than he should have received.
Petitioner has not exhausted his administrative remedies as
to this issue.
In fact, it does not appear that Petitioner has
followed any of the administrative remedy procedures available to
him at any time related to the challenge brought in the instant
petition.
II.
ANALYSIS
Respondent asserts that Petitioner is not entitled to habeas
relief because he did not exhaust his administrative remedies
with respect to his challenge to the calculation of his sentence
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before filing this habeas petition.
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, a federal prisoner ordinarily may not bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the execution of his sentence, until he has exhausted
all available administrative remedies.
See, e.g., Callwood v.
Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States
Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v.
Alldredge, 481 F.2d 303, 306 (3d Cir. 1973).
The exhaustion
doctrine promotes a number of goals:
(1) allowing the appropriate agency to develop a factual
record and apply its expertise facilitates judicial review;
(2) permitting agencies to grant the relief requested
conserves judicial resources; and (3) providing agencies the
opportunity to correct their own errors fosters
administrative autonomy.
Goldberg v. Beeler, 82 F.Supp.2d 302, 309 (D.N.J. 1999), aff’d,
248 F.3d 1130 (3d Cir. 2000).
See also Moscato v. Federal Bureau
of Prisons, 98 F.3d 757, 761 (3d Cir. 1996).
Nevertheless,
exhaustion of administrative remedies is not required where
exhaustion would not promote these goals.
See, e.g., Gambino v.
Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required
where petitioner demonstrates futility); Lyons v. U.S. Marshals,
840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where
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it “would be futile, if the actions of the agency clearly and
unambiguously violate statutory or constitutional rights, or if
the administrative procedure is clearly shown to be inadequate to
prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,
*2 (E.D. Pa. 2000) (exhaustion not required where delay would
subject petitioner to “irreparable injury”).
In general, the BOP Administrative Remedy Program is a
multi-tier process that is available to inmates confined in
institutions operated by the BOP for “review of an issue which
relates to any aspect of their confinement.”
28 C.F.R. § 542.10.
An inmate must initially attempt to informally resolve the issue
with institutional staff.
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 counsel)” within 20 days
of the date on which the basis for the Request occurred, or
within any extension permitted.
28 C.F.R. § 542.14.
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.
28 C.F.R. § 542.15(a).
The inmate may appeal to the BOP’s
General Counsel on a BP-11 form within 30 days of the day the
Regional Director signed the response. Id.
Appeal to the
General Counsel is the final administrative appeal.
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Id.
If
responses are not received by the inmate within the time allotted
for reply, “the inmate may consider the absence of a response to
be a denial at that level.”
28 C.F.R. § 542.18.
Here, Petitioner has not shown any evidence that he has
attempted to pursue available administrative remedies in any way,
nor has he stated that pursuit of such remedies would be futile.
According to the Declaration of Tara Moran,2 legal assistant with
the Federal Bureau of Prisons, a search of the computerized index
conducted on or about September 16, 2011 indicates that
Petitioner has not attempted to exhaust his administrative
remedies in this matter in any way, never having filed any remedy
forms regarding this issue.
Since Petitioner has not exhausted
his administrative remedies in this matter before filing the
instant petition, and since Petitioner has not demonstrated any
futility related to potential exhaustion, the petition must be
dismissed for failure to exhaust available administrative
remedies.
In the alternative, the Bureau of Prisons did correctly
calculate Petitioner’s GCT.
According to the Declaration of John
A. Farrar,3 Policy & Correspondence Specialist for the Federal
Bureau of Prisons at the Designation and Sentence Computation
Center, Petitioner’s GCT was computed in accordance to policy.
2
Submitted as attachment #1 to the response.
3
Submitted as attachment #2 to the response.
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Petitioner’s sentence of 20 years reduces to approximately 17
years and 5 months after applying the projected GCT.
According
to the record, the only GCT days lost for disciplinary reasons
stem from an incident which occurred on September 6, 2011, after
the petition was filed.
There is nothing to suggest that seven
days were deducted for each year, as Petitioner suggests in his
petition.
54 days are to be awarded to Petitioner for each full
year served, as is appropriate pursuant to BOP policies.
The BOP’s interpretation of 18 U.S.C. § 3624(b), and its
implementing formula for calculation of good-conduct-time
credits, is reasonable and entitled to deference.
See O’Donald
v. Johns, 402 F.3d 172 (3d Cir. 2005)(BOP did not abuse its
discretion by calculating GCT based on the time actually served,
rather than the sentence imposed).
Accordingly, even if
Petitioner were to have exhausted his administrative remedies,
deference is afforded to the BOP calculations regarding
Petitioner’s sentence and thus the petition may not be granted on
this basis.
However, since Petitioner did not pursue his administrative
issues as to this issue, this Court must dismiss the petition
without prejudice for failure to exhaust administrative remedies.
Finally, this Court notes that, in the petition, Petitioner
appears to challenge this issue with the assertion that the
statute must be construed in his favor since he is a Native
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American.
That argument is without merit.
III. CONCLUSION
For the reasons set forth above, the Petition is dismissed
without prejudice.
An appropriate order follows.
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Dated: April 19, 2012
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