Toney v. Warden

Filing 13

MEMORANDUM (Order to follow as separate docket entry)In conclusion, this matter will be dismissed without prejudice. Toney may reassert his pending claims in a new habeas corpus petition after he enters federal custody, receives an unfavorable BOP decision regarding his request for a nunc pro tunc designation, and fully exhausts his available BOP administrative remedies.Signed by Honorable Richard P. Conaboy on 10/14/16. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
CLARENCE TONEY,

:
:
Petitioner
:
:
v.
: CIVIL NO. 3:CV-14-1487
:
UNITED STATES OF AMERICA,
: (Judge Conaboy)
ET AL.,
:
:
Respondents
:
________________________________________________________________
MEMORANDUM
Background
Clarence Toney, an inmate presently confined at the State
Correctional Institution, Dallas, Pennsylvania (SCI-Dallas),
filed this pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241.

Named as Respondents are the United States of

America and the Warden, SCI-Dallas.
Petitioner is presently serving a 25 to 60 year term of
imprisonment which was imposed by a Pennsylvania state court.
Toney’s minimum release date on that sentence is September 23,
2017 and his maximum release date is September 23, 2052.

See

Doc. 1-1, p. 17. Toney correctly states that a federal detainer
has been lodged against him as the result of his federal
convictions in the United States District Court for the District
of New Jersey and the United States District Court for the

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Central District of California.1 Toney is not facing any
sentence imposed by a judge in this district.
Petitioner’s pending action requests a nunc pro tunc
designation that the federal sentences which he has not yet
begun to serve run concurrently to the Pennsylvania state
sentence which he is now serving.

Service of the petition was

previously ordered.
Respondent argues that dismissal of the petition is
appropriate on the grounds of lack of jurisdiction and failure
to exhaust administrative remedies.

See Doc. 6, p. 1.

Discussion
Title 28, United States Code § 2241, vests the federal
district courts with jurisdiction to grant a writ of habeas
corpus to persons in custody in violation of the Constitution,
laws, or treaties of the United States.

28 U.S.C. § 2241(c)(3).

Habeas corpus review under § 2241 “allows a federal prisoner to
challenge the ‘execution’ of his sentence.”

Woodall v. Federal

Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).

Review is

available “where the deprivation of rights is such that it
necessarily impacts the fact or length of detention.”

Leamer v.

Fauver, 288 F.3d 532, 540 (3d Cir. 2002).

1

It appears that the sentences from the two federal
convictions were ordered to run concurrently. See Doc. 6-1, p. 2.
2

Petitioner does not dispute that he was initially taken
into custody by Pennsylvania state officials and was first
convicted of a Pennsylvania state offense.

See Doc. 1-1, ¶ 3.

18 U.S.C. § 3621(b) authorizes the Federal Bureau of Prisons
(BOP) “to designate the place of confinement for purposes of
serving federal sentences of imprisonment."
921 F.2d 476 (3d Cir. 1991).

Barden v. Keohane,

Under § 3621(b), the BOP has the

authority to recommend that a state prison be designated as the
place of service of a federal inmate’s sentence in order to make
it concurrent with a state sentence being served at the state
facility.2

2

However, a federal court may not direct that a

In pertinent part, § 3621(b) provides:

(b) Place of imprisonment.--The Bureau of Prisons shall
designate the place of the prisoner's imprisonment. The
Bureau may designate any available penal or correctional
facility that meets minimum standards of health and
habitability established by the Bureau, whether
maintained by the Federal Government or otherwise and
whether within or without the judicial district in which
the person was convicted, that the Bureau determines to
be appropriate and suitable, considering-(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.
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federal sentence run concurrently with a state sentence.

Gomori

v. Arnold, 533 F.2d 871, 875 (3d Cir. 1976).
In Barden, the BOP refused to consider an inmate’s request
that his prior place of confinement, a state prison, be
designated nunc pro tunc as the place of service of his federal
sentence, thereby making the two sentences concurrent.

Holding

that the BOP had the statutory authority to make such a
designation, the Third Circuit Court of Appeals granted habeas
relief by directing that the BOP exercise the discretion the
statute afforded.

As recognized in Barden, § 3621(b) grants the

BOP authority to designate a state prison as the place of
service of a federal inmate’s sentence. Based upon the nature of
Petitioner’s claim that he is entitled to a Barden-type nunc pro
tunc designation, this matter is the type of claim properly
brought under § 2241.
The initial argument for dismissal contends that this
matter is premature as the BOP is not permitted to compute
Toney’s sentence until he is relinquished to BOP custody.
Respondents also seek dismissal of the Petition on the grounds
that Petitioner failed to exhaust his available administrative
remedies.
Generally speaking, a federal sentence does not commence
until the Attorney General of the United States receives the

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defendant into custody for service of his or her sentence.
United States v. Pungitore, 910 F.2d 1084, 1118-19 (3d Cir.
1990).

Since Toney is still in state custody, this Court agrees

that this action is premature since Petitioner cannot challenge
the BOP’s calculation of federal sentences which he has not yet
begun to serve and which have not yet even been computed by the
BOP.
It is well-settled that "[a] federal prisoner ordinarily
may not seek habeas corpus relief until he has exhausted all
available administrative remedies."

Bradshaw v. Carlson, 682

F.2d 1050, 1052 (3d Cir. 1981)(emphasis added)”

Porter v.

Nussle, 122 S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S.
731, 741 n. 6 (2001).

A party is required to exhaust

administrative remedies before seeking relief in federal court
unless Congress has indicated to the contrary or the available
administrative remedies are inherently inadequate.
Quinlan, 960 F.2d 351, 356 (3d Cir. 1992).

Young v.

The administrative

exhaustion mandate also implies a procedural default component.
Spruill v. Gillis 372 F.3d 218, 222 (3d Cir. 2004).
As explained by the Third Circuit Court of Appeals, a
procedural default rule “prevents an end-run around the
exhaustion requirement.”

Id. at 230.

It also ensures “prisoner

compliance with the specific requirements of the grievance

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system” and encourages inmates to pursue their administrative
grievances “to the fullest.”

Id.

Similarly, the Supreme Court

has observed that proper exhaustion of available administrative
remedies is mandatory, meaning that prisoners must comply with
the grievance system’s procedural rules, including time
limitations.

Woodford v. Ngo, 548 U.S. 81 (2006). The Court of

Appeals for the Third Circuit has recognized that “[t]here is no
futility exception” to the exhaustion requirement.

Brown v.

Croak, 312 F.3d 109, 112 (3d cir. 2002).
The BOP has a well established three (3) step
Administrative Remedy Program whereby a federal prisoner may
seek review of any aspect of his imprisonment.
542.10-542.19.

See 28 C.F.R. §§

After attempting to informally resolve the

issue, a BOP inmate can initiate the first step of the grievance
process by submitting

“a formal written Administrative Remedy

Request, on the appropriate form (BP-9),” within twenty (20)
calendar days “following the date on which the basis for the
Request occurred.”

See

28 C.F.R. § 542.14(a).

The Warden has

twenty (20) calendar days from the date the Request or Appeal is
filed in which to respond.

Id. at § 542.18.

If not satisfied with the Warden's response, an inmate may
appeal on the appropriate form (BP-10) to the Regional Director
within twenty (20) calendar days of the date the Warden signed

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the response.

Id. at § 542.15.

Finally, if the inmate is

dissatisfied with the Regional Director's response, that
decision may then be appealed on the appropriate form (BP-11) to
the General Counsel within thirty (30) calendar days from the
date the Regional Director signed the response.

Id.

Additionally, “[i]f the inmate does not receive a response
within the time allotted for reply, including extension, the
inmate may consider the absence of a response to be a denial at
that level.”

Id.

The Court of Appeals for the Third Circuit has repeatedly
recognized that a federal prisoner must exhaust available
administrative remedies before seeking habeas corpus relief in
federal court.

Moscato v. Federal Bureau of Prisons, 98 F.3d

757, 760 (3d Cir. 1996).

The Court of Appeals for the Third

Circuit affirmed the dismissal of a § 2241 petition that, like
Toney’s pending action, had been filed before administrative
remedies had been exhausted.

Ridley v. Smith, 179 Fed. Appx.

109, 111 (3d Cir. 2006).
Petitioner acknowledges that federal prisoners are required
to exhaust their administrative remedies prior to seeking relief
under § 22413 and that he initiated this federal habeas corpus
action before pursuing a grievance via the BOP’s administrative

3

See Doc. 1-1, p. 3.
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review procedure.

Moreover, Petitioner’s submissions fails to

provide an arguable basis for a determination that he should be
excused from the exhaustion requirement.
The parties also acknowledge that Petitioner filed a prior
similar § 2241 action with the United States District Court for
the District of New Jersey.

Toney’s earlier petition was

likewise dismissed without prejudice on July 15, 2010 until such
time as the BOP makes an unfavorable nunc pro tunc designation
and Petitioner thereafter fully exhausts his BOP administrative
remedies.
Pursuant to the above discussion, Toney’s action is
premature under the standards developed in Moscato and Ridley.
See Murray v. Grondolsky 2009 WL 2044821 *2 (D.N.J. 2009)(
dismissal of § 2241 action for non-exhaustion of administrative
remedies); Morgan v. Borough of Carteret, 2008 WL 4149640 *5
(D.N.J. 2008) (dismissal for non-exhaustion of administrative
remedies).

To hold otherwise would frustrate the purposes of

the exhaustion doctrine by allowing prisoners to invoke the
judicial process before completing administrative review.
In conclusion, this matter will be dismissed without
prejudice.

Toney may reassert his pending claims in a new

habeas corpus petition after he enters federal custody, receives
an unfavorable BOP decision regarding his request for a nunc pro

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tunc designation, and fully exhausts his available BOP
administrative remedies.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: OCTOBER 14, 2016

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