RODRIGUEZ v. WARDEN OF F.C.I. FAIRTON
Filing
2
MEMORANDUM OPINION. Signed by Judge Robert B. Kugler on 11/4/2012. (nz, )N.M.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
________________________________
:
:
:
Petitioner,
:
:
v.
:
:
J.T. SHARTLE,
:
:
Respondent.
:
________________________________:
RAY RODRIGUEZ,
Civil Action No. 12-1656 (RBK)
MEMORANDUM OPINION
This matter comes before this Court upon: (a) receipt of a
clarification graciously provided by Petitioner’s sentencing
court,1 see Docket Entry No. 6; and (b) Respondent’s prompt
filing of an expedited answer.2
1
Pursuant to this Court’s prior order, the Clerk served a
complimentary copy of the same on Honorable Legrome D. Davis
(“Judge Davis”) of the United States District Court for the
Eastern District of Pennsylvania, since Judge Davis was
Petitioner’s sentencing judge for the purposes of Petitioner’s
federal sentence underlying his currently served term of
imprisonment. The Court’s order to that effect and the Clerk’s
service took place shortly prior to close of business on October
26, 2012. The following Monday, the north-eastern coastal United
States states were ravaged by Hurricane Sandy, which devastated
the population, facilities and infrastructure of these states,
direly affecting, inter alia, federal court facilities and the
members of federal judiciary. Notwithstanding the foregoing,
Judge Davis provided his clarification on November 1, 2012, that
is, on the very first day when the federal judiciary of this
state resumed its operations. The Court takes this opportunity
to note its gratitude to Judge Davis for his gracious courtesy.
2
Commendably, the Office of the United States Attorney for
the District of New Jersey filed a thorough and thoughtful
expedited answer on November 2, 2012, together with the pertinent
record, without seeking any extension of time, even though the
For the reasons detailed below, the Court will construe the
Petition within as asserting challenges based on the holding of
Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002), and will dismiss
these challenges with prejudice.3
Petitioner’s challenges based on the holding of Barden v.
Keohane, 921 F.2d 476 (3d Cir. 1991), and/or Willis v. United
States, 438 F.2d 923 (5th Cir. 1971), and/or Kayfez v. Gasele,
993 F. 2d 1288 (7th Cir. 1993), that is, provided such challenges
were intended, will be dismissed as improperly raised in this
staff and facilities of the United States Attorney’s Office were,
as everyone in the State of New Jersey, direly affected by
Hurricane Sandy and its aftermath. The Court takes this
opportunity to note both excellent speed and thoroughness of the
answer filed by Respondent’s counsel.
3
Respondent’s answer included an application for taxing
the cost incurred by Respondent in connection with obtaining
Petitioner’s sentencing transcript (which is the document at the
heart of Petitioner’s Ruggiano challenges, and which document
revealed that Petitioner’s Ruggiano claim was wholly baseless)
against Petitioner. This Court already noted its deep concern
with Petitioner’s litigation practices, see Docket Entry No. 3,
at 5 and n. 3, and – reiterating the same – the Court puts on
record that it shares in Respondent’s disappointment with
Petitioner’s allegations which: (a) asserted that Judge Davis’
uttered statements warranting Ruggiano-based habeas relief; but
(b) have been proven false by the record provided by Respondent.
However, while Respondent is correct that, pursuant to 28 U.S.C.
§ 1920(2), the Court has the power to tax Respondent’s expense
against Petitioner, the Court finds such measure unduly excessive
in light of Petitioner’s pro se litigant status (suggesting a,
however small, likelihood of Petitioner’s bona fide confusion as
to the pertinent law). Therefore, Respondent’s application is
duly noted but will be denied. The Court notes, however, that
Petitioner’s resort to the same litigation practices in the
future will not be tolerated and might result in sanctions, if
appropriate. See infra, this Memorandum Opinion, note 5.
2
matter, pursuant to Habeas Rule 2.4
Out of abundance of caution,
the Court will direct the Clerk to open a new and separate habeas
matter for Petitioner with a presumption that Petitioner might
have wished to raise such challenges.
On the basis of such
presumption, and in light of the information provided in the
attachment to the Petition, these challenges will be dismissed
without prejudice, as unexhausted.
Petitioner, however, will be
granted leave to file an amended pleading, provided that such
amended pleading shows due administrative exhaustion of his
Barden and/or Willis and/or Kayfez challenges and states facts
supporting these claims.5
4
It is axiomatic that Habeas Rule 2(e) requires separate
petitions to challenge [each] separate [administrative]
determinations. See 28 U.S.C. § 2254 Rule 2(e),
applicable to § 2241 cases through Rule 1(b). Here,
Petitioner challenged the [prison officials'] decision
to calculate Petitioner's sentence [in light of the
holding of Ruggiano. However, simultaneously,]
Petitioner [asserted challenge unrelated to Ruggiano,
which should have given] rise to a wholly different
[administrative] determination that, under Habeas Rule
2(e), had to be [challenged in this District} by means
of a different [habeas] petition.
Muniz v. Zickefoose, 2011 U.S. Dist. LEXIS 115766, at *13 (D.N.J.
Sept. 30, 2011), aff'd, 460 F. App'x 165 (3d Cir. 2012).
5
In the event Petitioner duly exhausted his administrative
remedies with all three levels of the BOP but has no records of
such complete exhaustion, Petitioner shall state the same clearly
and provide this Court and Respondent with all information
Petitioner has. The Court, then, will direct Respondent to
search the BOP administrative records. The Court, however, takes
3
I.
BACKGROUND
Petitioner commenced this matter without submitting his in
forma pauperis application and without paying his filing fee.
See Docket Entry No. 1.
The Court, therefore, directed
administrative termination of this matter, and allowed Petitioner
an opportunity to cure the deficiency of his submission.
Docket Entry No. 2.
See
Petitioner, thereafter, cured said
deficiency by prepaying his filing fee.
Correspondingly, the
Court screened the Petition pursuant to Habeas Rule 4.6
The Petition proved to be of less than exemplar clarity,
since it: (a) asserted that Petitioner was seeking a § 2241 writ
this opportunity to remind Petitioner that all his statements
made in the original Petition and in the amended petition, if
such is filed, were and are made under penalty of perjury. The
Court, therefore, urges Petitioner to make only those statements
with regard to which Petitioner, in fact, has bona fide belief
that these statements are true and supported by facts.
6
Habeas Rule 4 requires a judge to sua sponte dismiss a §
2254 petition without ordering a responsive pleading “[i]f it
plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court.”
28 U.S.C. § 2254 Rule 4, applicable to Section 2241 actions
through Habeas Rule 1(b). “Federal courts are authorized to
dismiss summarily any habeas petition that appears legally
insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856
(1994). Correspondingly, dismissal without the filing of an
answer has been found warranted when “it appears on the face of
the petition that petitioner is not entitled to [habeas] relief.”
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490
U.S. 1025 (1989); see also United States v. Thomas, 221 F.3d 430,
437 (3d Cir. 2000) (habeas petition may be dismissed where “none
of the grounds alleged in the petition would entitle [petitioner]
to [habeas] relief”); accord Mayle v. Felix, 545 U.S. 644, 655
(2005) (same).
4
pursuant to the holding of Ruggiano v. Reish on the grounds that
Judge Davis directed retroactive adjustment of Petitioner’s
federal sentence by uttering certain, not elaborated in the
Petition, oral statements during Petitioner’s federal sentencing
proceedings, see Docket Entry No. 1, at 6-7 (citing, exclusively,
the United States Sentencing Guidelines § 5G1.3, Ruggiano and its
progeny as legal bases for Petitioner’s claim); and yet,
simultaneously, (b) used the term “credit”
commonly employed by
the litigants seeking recalculation of their prison terms
pursuant to the holdings of Barden, 921 F.2d 476, or Willis, 438
F.2d 923, or Kayfez, 993 F. 2d 1288.
7 and 11-12.
See Docket Entry No. 1, at
Petitioner’s attachment to his Petition suggested
that, administratively, he raised his claims only to his warden.
See id.
Although Petitioner’s § 2241 challenges appeared subject to
dismissal without prejudice (as administratively unexhausted),
the Court – prior to entering such dismissal - examined
Petitioner’s information available at the BOP website in order to
determine whether circumstances warranting excuse of exhaustion
were present.7
The Court’s review of Petitioner’s BOP
7
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); Bradshaw v.
5
information revealed that his projected release date was August
7, 2013.
See <>.
Since Petitioner’s pleading maintained
that, pursuant to Judge Davis’ downward adjustment directive,
Petitioner’s release from federal confinement had to take place
ten months sooner, that is, on November 7, 2012, this Court found
it warranted to excuse Petitioner’s failure to exhaust his
Ruggiano challenges.
See Docket Entry No. 3, at 5 and n. 3
(noting, with disapproval, Petitioner’s election to omit stating
his projected release date in his Petition and pointing out that,
“had this Court not checked Petitioner's BOP information . . . ,
Petitioner could, hypothetically, overserve his imposed term of
imprisonment”).
Correspondingly, the Court directed: (a) Respondent to file
an expedited answer addressing Petitioner’s Ruggiano claims, see
id. at 7; and (b) the Clerk to serve a complimentary copy of the
Court’s order on Judge Davis so to inform Judge Davis of
Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981); 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). However, exhaustion
not required where, for instance, delay would subject petitioner
to “irreparable injury.” See Carling v. Peters, 2000 WL 1022959,
*2 (E.D. Pa. 2000); accord Ferrante v. Bureau of Prisons, 990 F.
Supp. 367, 370 (D.N.J. 1998) (excusing failure to exhaust where
it appeared that, if the petitioner's claim were meritorious, he
would be released to a halfway house relatively soon) (citing
Snisky v. Pugh, 974 F. Supp. 817, 819 (M.D. Pa. 1997)).
6
Petitioner’s Ruggiano-based position and, if possible, obtain
Judge Davis’ clarification as to the federal sentence imposed
upon Petitioner.
See id. 6 and 8-9.
As noted supra, Judge Davis swiftly and graciously provided
said clarification, stating, in pertinent part, as follows:
Contrary to the assertions in Mr. Rodriguez’s Petition
[filed] under 28 U.S.C. § 2241, I did not grant a
ten-month adjustment to Mr. Rodriguez’s sentence. At
all times, I intended that Mr. Rodriguez’s July 12,
2010 sentence would run consecutively to any other
sentence that Mr. Rodriguez must serve. My June 16,
2011 Order merely [recommended the BOP to] grant[] Mr.
Rodriguez a sentencing credit, which I referred to the
Federal Bureau of Prisons for calculation — a policy
which I have maintained for more than two decades. To
the extent that the Bureau of Prisons has calculated
that Mr. Rodriguez is entitled to a sentencing credit
of zero-days, such a finding does not conflict with my
Order.
Docket Entry No. 6.
Meanwhile, Respondent obtained Petitioner’s sentencing
transcript and, in reliance on the same and in full accord with
the above-quoted Judge Davis’ clarification, asserted that
Petitioner was never granted any downward adjustment.
See Docket
Entry No. 7, at 1-2 (quoting Petitioner’s sentencing transcript
and correctly distilling Judge Davis’: (a) keen awareness of
Petitioner’s recidivist record; and (b) lack of any intent to
resort to his power to grant downward adjustment).
7
II.
DISCUSSION
A.
Difference Between an “Adjustment” and “Credits”
Any computation of a federal sentence starts with a
determination when that sentence commences and to what extent the
sentenced inmate can receive credit for time spent in custody
prior to the commencement of sentence.
See Chambers v. Holland,
920 F. Supp. 618, 621 (M.D. Pa.), aff’d, 100 F.3d 946 (3d Cir.
1996).
For offenses committed on or after November 1, 1987,
determinations regarding the commencement of federal sentence are
governed by 18 U.S.C. § 3585(a), and the issue of prior custody
credit is governed by 18 U.S.C. § 3585(b).8
The authority of the
Attorney General to compute sentences has been further delegated
to the BOP by operation of 28 C.F.R. § 0.96 (1996).
See United
States v. Brann, 990 F.2d 98, 103—04 (3d Cir. 1993).
“A sentence to a term of imprisonment commences on the date
the defendant is received in custody awaiting transportation to,
or arrives voluntarily to commence service of sentence at, the
official detention facility at which the sentence is to be
8
The provisions of § 3585 were designed to retain the same
basic authority for sentence computation in the Attorney General
as under its predecessor statute. See United States v. Wilson,
503 U.S. 329 (1992).
8
served.”9
18 U.S.C. § 3585(a).
A related provision, Section
3584 clarifies:
Imposition of concurrent or consecutive term. - If
multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively, except
that the terms may not run consecutively for an attempt
and for another offense that was the sole objective of
the attempt. Multiple terms of imprisonment imposed at
the same time run concurrently unless the court orders
or the statute mandates that the terms are to run
consecutively. Multiple terms of imprisonment imposed
at different times run consecutively unless the court
orders that the terms are to run concurrently.
18 U.S.C. § 3584(s).
Thus, an inmate’s federal sentence begins to run upon
his/her receipt in federal custody – unless the district court
imposing the inmate’s federal sentence expressly directs either
full or partial retroactive concurrence with another, already
existing and still running sentence served by the inmate.
See
Ruggiano, 307 F.3d at 132 (sentencing court has authority under
18 U.S.C. § 3584 and United States Sentencing Guidelines §
5G1.3(c) to order a federal sentence to be fully and
retroactively concurrent to a state sentence the defendant was
already serving); see also Oregon v. Ice, 555 U.S. 160, 168-69
9
Thus, a federal sentence does not begin to run when a
federal defendant is produced for prosecution by a Writ of Habeas
Corpus Ad Prosequendum from state custody. See Barden, 921 F.2d
476; Chambers, 920 F.2d at 622.
9
(2010) (judges have traditionally had broad discretion in
selecting whether the sentence they impose will run consecutively
or concurrently with respect to other sentences that they impose,
or that have been imposed in other proceedings, even state
proceedings); accord Setser v. U.S., 132 S. Ct. 1463.10
Due to the unique power of federal judiciary to direct such
retroactive concurrence, it has been numerously observed that a
district court’s order directing said concurrence cannot be
qualified as a “credit” against an inmate’s sentence.
The Guidelines cautions sentencing courts that, “[t]o
avoid confusion with the Bureau of Prisons’ . . .
authority provided under 18 U.S.C. § 3585(b) to grant
credit . . . the [Sentencing] Commission recommends
that any downward departure under . . . application
note [3(E) in § 5G1.3] be clearly stated . . . as a
downward departure pursuant to § 5G1.3(c), rather than
as a credit for time served.” U.S.S.G. § 5G1.3 cmt.
n.3(E); see also Ruggiano, 307 F.3d at 133 (“[W]e
encourage sentencing courts in the future to avoid
using the term ‘credit’ to refer to § 5G1.3 adjustments
so as not to engender any unnecessary confusion”). In
Ruggiano, we [expressly guided] that sentencing courts
should use the term “adjustment,” rather than “credit”
or “downward departure,” in order to avoid confusion
10
In Setser, the Supreme Court considered whether the
district court, in sentencing a defendant for a federal offense,
has authority to order that the federal sentence be consecutive
to an anticipated state sentence that has not yet been imposed.
The Court ruled that a district court has the discretion to
impose a federal sentence to run consecutively to an anticipated
state sentence that has not yet been imposed, and that in the
Setser case, the district court's decision to require defendant
to serve his federal sentence consecutive to one anticipated
state sentence and concurrent with another anticipated state
sentence was not rendered unreasonable when the state court later
ordered its two sentences to run concurrently.
10
when applying Guidelines § 5G1.3. [See Ruggiano,] 307
F.3d at 133. However, Application Note 3(E) to
Guidelines § 5G1.3, which came into effect after
Ruggiano, indicates that the appropriate terminology is
“downward departure.”
United States v. Gaskins, 393 F. App’x 910, 914 and n. 2 (3d Cir.
2010).
In contrast, § 3585(b) governs the process of BOP
calculating an inmate’s sentence; such calculation often results
in the inmate obtaining a certain “credit.”
Within the context
of Section 3585 and other statutory provisions having a somewhat
similar effect, the term “credit” might have numerous meanings.
First, it is self-evident that an inmate receives credit for
the time spent in custody while actually serving his/her federal
sentence: this is why sentences are finite and do expire.
Second, Section 3585(b) allows the inmate to use time served
in custody prior to the imposition of his/her sentence towards
the completion of that sentence when that custody was either “a
result of the offense for which the sentence was imposed” or “a
result of any other charge for which the [inmate] was arrested
after the commission of the offense for which the sentence was
imposed[, provided that such period of custody] that has not been
credited against another sentence.”
This last clause of this
sentence is paramount, since it clarifies that the time spent in
11
custody cannot be credited toward a federal sentence if that time
was already used to satisfy a non-federal sentence.11
That being said, pursuant to Kayfez v. Gasele, 993 F. 2d
1288, the BOP grants an amount of qualified double credit if the
following three conditions are present: (1) the non-federal and
federal sentences are ordered to run concurrent; (2) the raw
effective full term (“EFT”) date of the non-federal term is later
than the raw EFT of the federal term; and (3) the non-federal raw
EFT, after application of qualified non-federal presentence time,
is reduced to a date that is earlier than the federal raw EFT
date.
See BOP Program Statement 5880.28.
Hence, Kayfez provides
the third scenario allowing an inmate to obtain “credit.”
Fourth, an inmate is entitled to credit for time spent in
non-federal pre-sentence custody during which he/she was denied
bail if such denial was solely a result of a federal detainer:
such credit is commonly referred to as “Willis” credit, since it
ensues from the holding of Willis v. United States, 438 F.2d 923.
Finally, pursuant to 18 U.S.C. § 3621(b), the BOP has the
authority to designate a state institution as the official
facility for service of a federal sentence, and the BOP may
implement such a designation nunc pro tunc.
11
See Barden v.
The Supreme Court has made clear that inmates are not
allowed to such “double count” credit. See United States v.
Wilson, 503 U.S. 329; see also Blood v. Bledsoe, 648 F.3d at 209.
12
Keohane, 921 F.2d at 478-79.12
Since such designation impacts
the duration of an inmate’s sentence, it is too commonly referred
to as “credit,” although such terminology is likely to be a
misnomer.13
However, and crucially here, all aforesaid “credits”
calculated and granted by the BOP are qualitatively different
12
Typically, a Barden scenario accrues when a state
sentencing court directs the state sentence to run concurrently
with the then-yet-to-be-imposed federal sentence, but the later
imposed federal sentence is silent as to any concurrence (which
silence, by operation of 18 U.S.C. § 3584, triggers consecutive
terms, de facto nullifying the state-court-imposed concurrence).
Therefore, if an inmate was in the primary custody of state
authorities and is returned to such state custody after his/her
federal sentence (imposed while the inmate is produced in the
federal court pursuant to a Writ of Habeas Corpus Ad
Prosequendum), and then released into federal custody upon
expiration of his/her state term, the inmate has no guaranteed
right to the state-court-imposed concurrence: rather, he/she must
seek nunc pro tunc designation from the BOP, under Barden.
13
Section 3621(b) obligates the BOP to consider, in
connection with an inmate’s Barden application, the following
five factors: “(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense; (3) the history
and characteristics of the prisoner; (4) any statement by the
court that imposed the sentence -- (A) concerning the purposes
for which the sentence to imprisonment was determined to be
warranted; or (B) recommending a type of penal or correctional
facility as appropriate; and (5) any pertinent policy statement
issued by the Sentencing Commission pursuant to section 994(a)(2)
of title 28.” Importantly, no statement entered by the state or
federal sentencing courts is binding of the BOP so long as the
agency considers these factors in good faith. See, e.g.,
Galloway v. Warden of F.C.I. Fort Dix, 385 F. App’x 59 (3d Cir.
2010) (the BOP did not violate its § 3621(b) obligations when it
declined nunc pro tunc designation to an inmate who sought Barden
credit and, in support of his Barden application, produced
passionate letters from the sentencing court which expressed its
utmost displeasure with the BOP’s decision not to grant the
credit the sentencing court recommended).
13
from the power of a district court to direct downward adjustment
under 18 U.S.C. § 3584, the United States Sentencing Guidelines §
5G1.3(c) and the holding of Ruggiano, 307 F.3d at 132.
B.
Petitioner’s Ruggiano-Based Challenges Are Meritless
In the instant matter, the Petition solely and expressly
seeks a Ruggiano-based adjustment.
See Docket Entry No. 1.
To determine what type of adjustment, if any, Judge Davis
intended to apply, “the appropriate starting point is to
ascertain the meaning that we should ascribe to the sentencing
court’s directives.”
2000).
Rios v. Wiley, 201 F.3d 257, 264 (3d Cir.
Only when the oral pronouncement of sentence and written
sentence are in conflict, the oral sentence prevails.
States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991).
See United
Conversely,
when there is no conflict, “but rather only ambiguity in either
or both [sentence pronouncements], we have recognized that the
controlling oral sentence ‘often [consists of] spontaneous
remarks’ that are ‘addressed primarily to the case at hand and
are unlikely to be a perfect or complete statement of the
surrounding law.’”
F.3d at 268).
Ruggiano, 307 F.3d at 133 (quoting Rios, 201
Self-evidently, if both oral and written
directives of the sentencing court were silent as to downward
adjustment, no Ruggiano-based claim could ensue.
Here, the record provided by Respondent shows neither
ambiguity in Judge Davis’ oral and written directives nor any
14
conflict between Judge Davis’ oral pronouncement and written
sentence.
See Docket Entry No. 7-1; see also USA v. Rodriguez,
Crim. Action No. 95-95 (LDD) (E.D. Pa.), Docket Entry No. 48.
If
anything, the record unambiguously shows that Judge Davis did not
find it warranted to exercise his power to direct downward
adjustment for the purposes of Petitioner’s sentencing.
See id.
Judge Davis’ letter, graciously provided in response to the
Clerk’s complimentary service of this Court’s prior order,
verifies the same.14
See Docket Entry No. 6.
Therefore, Petitioner’s Ruggiano-based challenges will be
dismissed as meritless.
C.
Petitioner’s Request for “Credit” Is Unexhausted
Although Petitioner asserted only Ruggiano-based challenges
in his Petition, the Court – being mindful of Judge Davis’ resort
to the term “credit” and of Petitioner’s use of the same – cannot
rule out the possibility that Petitioner might have wished to
14
Indeed, Judge Davis’ resort to the term “credit” in the
clarification letter graciously provided to this Court, as well
as Judge Davis’ resort to the term “credit” in his letter issued
to Petitioner on June 6, 2011, see USA v. Rodriguez, Crim. Action
No. 95-95 (LDD) (E.D. Pa.), Docket Entry No. 61, indicated that
Judge Davis merely offered his recommendation to the BOP (for the
purposes of the agency’s independent determination of whether to
grant Petitioner credit or nunc pro tunc designation). Moreover,
Judge Davis’ clarification graciously provided to this Court
expressly – and in full accord with the governing legal regime –
verified that the BOP’s decision to decline grant of credit to
Petitioner neither did and nor could violate Judge Davis’ nonbinding recommendation. See Docket Entry No. 6.
15
seek one of the “credits” detailed supra.
However, in the event
Petitioner wished to raise such challenges, his claims appear
facially unexhausted.
The exhaustion doctrine promotes a number of goals: it is
“(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).
Although 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 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”), the exhaustion requirement is not
excused lightly.
Indeed, it has been long established that an inmate’s
unjustified failure to pursue administrative remedies results in
16
procedural default warranting decline of judicial review.
The
Court of Appeals addressed this issue in Moscato, 98 F. 3d 757,
the case where an inmate filed a § 2241 petition after the
Central Office had denied his administrative appeal as untimely.
The Court of Appeals pointed out that the inmate’s failure to
satisfy the time limits of the BOP's administrative remedy
program resulted in a procedural default, see id. at 760,
rendering judicial review of his habeas claim unwarranted, that
is, unless the inmate can demonstrate cause for his failure to
comply with the procedural requirement15 and, in addition, actual
prejudice resulting from the alleged violation.
See id. at 761.
Clarifying the rationale of its decision, the Moscato Court
explained that application of the cause and prejudice rule to
habeas review of BOP proceedings insures that prisoners do not
circumvent the agency and needlessly swamp the courts with
petitions for relief, and promotes such goals of the exhaustion
requirement (such as allowing the agency to develop a factual
15
The “cause” standard requires a showing that some
external objective factor impeded the inmate’s efforts to comply
with the procedural bar. See Murray v. Carrier, 477 U.S. 478,
488 (1986); United States v. Pelullo, 399 F. 3d 197, 223 (3d
Cir. 2005) (“Examples of external impediments . . . include
interference by officials”) (citations and internal quotation
marks omitted); Johnson v. Pinchak, 392 F.3d 551, 563 (3d Cir.
2004) (“cause” typically involves a novel constitutional rule, a
new factual predicate, hindrance by officials in complying with
the procedural rule, or akin). In contrast, a procedural default
caused by ignorance of the law or facts is binding on the habeas
petitioner. See Murray, 477 U.S. at 485-87.
17
record and apply its expertise facilitates judicial review, while
conserving judicial resources, and fostering administrative
autonomy by providing the agency with an opportunity to correct
its own errors).
See id. at 761-62; see also Gambino, 134 F.3d
at 171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988).
As this Court already explained to Petitioner, the BOP
Administrative Remedy Program is a three-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.
See 28 C.F.R. § 542.13(a).
If informal resolution fails or is
waived, an inmate shall 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 shall
submit a BP-10 Appeal to the Regional Director of the BOP within
20 days of the date the Warden signed the response.
C.F.R. § 542.15(a).
See 28
The inmate shall appeal to the BOP's General
Counsel on a BP-11 form within 30 days of the day the Regional
Director signed the response.
See id.
Appeal to the General
Counsel is the final administrative appeal.
18
See id.
If
responses are not received by the inmate within the time allotted
for each 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’s submission indicates that he raised his
challenges solely to his warden.
See Docket Entry No. 1.
The
patchiness of Petitioner’s claims, as well as the seeming
incongruence of his challenges presented for this Court’s review,
render his “credit”-based allegations particularly suited for
administrative exhaustion, since a carefully developed
administrative record and due distillment of Petitioner’s claims
would be more than helpful: they would be indispensable.
Therefore, the Court finds it unwarranted to excuse
Petitioner’s failure to exhaust his “credit”-based challenges and
will dismiss them without prejudice.
However, recognizing that
Petitioner, being a pro se litigant, might have fully exhausted
his “credit”-based challenges administratively and yet omitted
stating this vital information in his Petition, this Court will
allow Petitioner an opportunity to clarify both the exhaustion
and substantive aspects of his “credit”-based claims, if any.
To facilitate that endeavor, this Court will direct the
Clerk to open a new and separate § 2241 habeas matter for
Petitioner and grant Petitioner leave to file an amended pleading
in that new action.
19
III. CONCLUSION
For the foregoing reasons, Petitioner’s challenges seeking
downward adjustment will be dismissed with prejudice.
Petitioner’s challenges seeking “credit,” if such challenges
were intended, will be dismissed, pursuant to Habeas Rule 2, as
improperly raised in this matter.
The Clerk will be directed to
commence a new and separate Section 2241 matter for Petitioner in
order to allow him an opportunity to detail his “credit”-based
claims.
These “credit”-based claims will be dismissed as
unexhausted; however, Petitioner will be granted leave to file an
amended pleading in that new matter showing full exhaustion and,
in addition, detailing the facts of his “credit”-based challenges
clearly and concisely, in accordance with the guidance provided
herein.
Respondent’s application for costs associated with obtaining
Petitioner’s sentencing transcript will be denied.
An appropriate Order accompanies this Memorandum Opinion.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: November 4, 2012
20
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