Buchanon v. Kodger

Filing 14

OPINION. Signed by Judge Noel L. Hillman on 11/13/2023. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
ANTHONY BUCHANON,
:
:
Petitioner,
:
Civ. No. 21-16125 (NLH)
:
v.
:
OPINION
:
ACTING WARDEN KODGER,
:
:
Respondent.
:
___________________________________:
APPEARANCES:
Anthony Buchanon
05722-052
Fort Dix
Federal Correctional Institution
P.O. Box 2000
Joint Base MDL, NJ 08640
Petitioner Pro se
Philip R. Sellinger, United States Attorney
Alexandra Tsakopoulos, Assistant United States Attorney
United States Attorney’s Office for the District of NJ
970 Broad Street, Suite 700
Newark, NJ 07102
Counsel for Respondent
HILLMAN, District Judge
Petitioner Anthony Buchanon, a federal prisoner, filed this
petition for writ of habeas corpus under 28 U.S.C. § 2241
challenging the execution of his federal sentence for violating
his supervised release.

ECF No. 1.

Respondent United States

opposes the petition, arguing that Petitioner failed to exhaust

his administrative remedies prior to filing the petition.

ECF

No. 9.
For the reasons below, the Court will dismiss the petition
for failure to exhaust.
I.

BACKGROUND
On June 3, 1996, the United States District Court for the

Northern District of New York (“Northern District”) sentenced
Petitioner to a term of 151 months imprisonment followed by five
years of supervised release.

United States v. Buchanon, 1:94-

cr-0203 (N.D.N.Y.) (“Crim. Case”) ECF No. 57.

On January 22,

1998, the Northern District granted the United States’ Rule 35
motion and resentenced Petitioner to a term of 78 months
imprisonment followed by five years of supervised release.
Crim. Case ECF No. 74.
on January 28, 2000.

Petitioner began his term of supervision

Declaration of Deborah Colston (“Colston

Dec.”) ECF No. 9-1 ¶ 5(c).
On August 31, 2001, the Albany New York Police Department
arrested Petitioner on New York State narcotics and weapons
charges.

Id. ¶ 6(a).

July 19, 2002.

He was convicted and was sentenced on

Id. ¶ 6(b).

“[A]ll sentences were ordered to be

served consecutively to any undischarged portion of Defendant’s
Federal Sentence.”

Id. ¶ 6(d).

“On or about August 21, 2002, a Petition for a Warrant or
Summons for an Offender under Supervision . . . was issued by
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the United States Probation Office” in Petitioner’s federal
criminal case citing the New York state convictions.
7(a); Crim. Case ECF No. 76.

Id. ¶

On October 25, 2002, the Northern

District sentenced Petitioner to a 36-month term of imprisonment
for violating the conditions of his supervised release.
Dec. ¶ 7(b); Crim. Case ECF No. 83.

Colston

“At sentencing Mr.

Buchanan’s sentence was ordered to be served consecutive to any
other sentence imposed.”

Colston Dec. ¶ 7(b).

Petitioner “was returned to the custody of State of New
York, Department of Corrections for the service of his NYS
sentences, where he remained until May 12, 2021, when he was
released via Parole.”

Id. ¶ 7(c).1

The United States Marshals

took Petitioner into federal custody to begin Petitioner’s
supervised release violation sentence that same day.
7(d).

Id. ¶

The Bureau of Prisons (“BOP”) calculated Petitioner’s

federal sentence as commencing “on May 21, 2021 the expiration
date of his New York state sentence and release to parole.”

Id.

¶ 8.
On July 26, 2021, Petitioner filed this § 2241 petition in
the Northern District.

ECF No. 1.

The Northern District

transferred the petition to this Court on August 26, 2021 as
Petitioner was incarcerated in FCI Fort Dix, New Jersey.

ECF

Petitioner was brought into temporary federal custody on a writ
of habeas corpus ad prosequendum. Colston Dec. ¶ 7(a).
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No. 5.

This Court ordered the United States to file an answer

or motion to dismiss.

ECF No. 7.

The United States filed an

answer arguing the petition should be dismissed as Petitioner
failed to exhaust his BOP administrative remedies prior to
filing the petition.

ECF No. 9.

Petitioner filed a reply

asserting that the Court should excuse any failure to exhaust.
ECF No. 12 at 4.
II.

STANDARD OF REVIEW
Title 28, Section 2243 of the United States Code provides

in relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.

Estelle v. Gamble,

429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972).

A pro se habeas petition must be construed liberally.

See Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
III. DISCUSSION
The United States argues the § 2241 petition should be
dismissed because Petitioner failed to exhaust the BOP’s
administrative remedy procedures.

“Although there is no

statutory exhaustion requirement attached to § 2241,” the Third

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Circuit has “consistently applied an exhaustion requirement to
claims brought under § 2241.”
634 (3d Cir. 2000).

Callwood v. Enos, 230 F.3d 627,

Exhaustion is required because: “(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.”

Moscato v.

Fed. Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996).
The BOP’s administrative remedy system has three tiers
allowing “an inmate to seek formal review of an issue relating
to any aspect of his/her own confinement.”
542.10(a).

28 C.F.R. §

“In order to exhaust administrative remedies, an

inmate must first present his complaint to the Warden of the
institution where he is confined.”

Declaration of Corrie

Dobovich (“Dobovich Dec.”) ECF No. 9-2 ¶ 5.

“An inmate who is

not satisfied with the Warden's response may submit an Appeal on
the appropriate form (BP–10) to the appropriate Regional
Director within 20 calendar days of the date the Warden signed
the response.”

28 C.F.R. § 542.14(a).

“An inmate who is not

satisfied with the Regional Director’s response may submit an
Appeal on the appropriate form (BP–11) to the General Counsel
within 30 calendar days of the date the Regional Director signed

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the response.”

Id.

“Appeal to the General Counsel is the final

administrative appeal.”

Id.

Petitioner submitted administrative remedy request No.
1094698-F1 on September 16, 2021 asking for release or
resentencing because his supervised release sentence was
illegal.
COVID-19.

ECF No. 12 at 11.
Id.

He also asked to be released due to

The Administrative Remedy Coordinator at FCI

Fort Dix procedurally rejected the request on September 17, 2021
because it included “multiple issues/complaints, which were not
closely related.”

Dobovich Dec. ¶ 11 (citing BOP Program

Statement 1330.18 (“If the inmate includes on a single form
multiple unrelated issues, the submission shall be rejected and
returned without response, and the inmate shall be advised to
use a separate form for each unrelated issue.”)).

The rejection

notice instructed Petitioner to “separate issues of sentence
computation and compassionate release and refile.

Please follow

appropriate protocol on filing [compassionate] release request.”
ECF No. 12 at 12.
Petitioner filed a second request, No. 1094698-F2 on
September 17, 2021, restating his sentence computation argument.
Id. at 13.

The Acting Warden denied the request on October 8,

2021, and informed Petitioner of his right to appeal to the
Regional Director.

Id. at 14.

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Petitioner filed an appeal on October 18, 2021.

Id. at 16.

The Northeast Regional Office procedurally rejected the appeal
on October 28, 2021.

Id. at 18.

The rejection notice stated

that Petitioner had failed to provide a copy of the
“administrative remedy request (BP-9) form or a copy of the (BP09) response from the Warden.”

Id.

It further noted that all

documents had to “be legible and worded the same.
of the form will not be accepted.”

Id.

Photocopies

Petitioner was notified

that he could resubmit the appeal within 10 days.

Id.

Petitioner has not submitted documentation that he resubmitted
the appeal to the Northeast Regional Office or that he filed a
BP-11 with the BOP General Counsel.

Therefore, Petitioner has

not exhausted his administrative remedies.
Failure to exhaust administrative remedies “generally bars
review of a federal habeas corpus petition absent a showing of
cause and prejudice[.]”

Moscato v. Fed. Bureau of Prisons, 98

F.3d 757, 761 (3d Cir. 1996).

Petitioner argues that the Court

should excuse the failure to exhaust because “the Government
cannot allow an illegal or incorrect sentence to stand for it is
a violation[] of due process.”

ECF No. 12 at 4.

The BOP is

charged with calculating federal sentences, see 18 U.S.C. §
3585, and Petitioner deprived the BOP of the chance “to develop
a factual record and apply its expertise” before filing this
matter in federal court.

Moscato, 98 F.3d at 761.
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The

Government has not denied the Petitioner due process.

To the

contrary, it is the Petitioner who has chosen not to utilize the
process the Government provides to review the sentence he
contends is unlawful.

Accordingly, the Court will dismiss the

petition for failure to exhaust.
IV. CONCLUSION
For the foregoing reasons, the habeas petition will be
dismissed for failure to exhaust administrative remedies.
An appropriate order will be entered.

Dated: November 13, 2023
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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