Johnson v. Ebbert
Filing
11
MEMORANDUM (Order to follow as separate docket entry)In conclusion, this matter will be dismissed without prejudice. Johnson may reassert his pending claims in a new habeas corpus petition if he receives an unfavorable BOP decision regarding his apparent request for a nunc pro tunc designation, and thereafter fully exhausts his available BOP administrative remedies. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 1/10/17. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DUSTIN LEE JOHNSON,
:
:
Petitioner
:
:
v.
: CIVIL NO. 3:CV-15-1284
:
DAVID J. EBBERT, WARDEN,
: (Judge Conaboy)
:
Respondents
:
________________________________________________________________
MEMORANDUM
Background
Dustin Lee Johnson, an inmate presently confined at the
United States Penitentiary, Lewisburg, Pennsylvania (USPLewisburg), filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 in the United States District Court
for the Northern District of Ohio.
Petitioner’s action was
subsequently transferred to this Court.
Service of the petition
was previously ordered.
Petitioner was arrested on April 19, 2011 on drug related
charges in Sylvania Township, Ohio.
While confined on those
state charges, Johnson was indicted on a state robbery charge in
Lucas County, Ohio.
The drug charges which led to Petitioner’s
initial arrest were later dismissed.
On May 20, 2011 Petitioner was released on bail in his
Lucas County case.
On July 8, 2011, Johnson was sentenced to a
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17 month term of imprisonment on unrelated state criminal
charges from Wood County, Ohio.
On July 20, 2011, Petitioner
was sentenced to a 2 year term on the Lucas County robbery
charge which was ordered to run concurrently to the Wood County
sentence.
While serving those sentences, Petitioner was indicted on a
bank robbery charge in the United States District Court for the
Northern District of Ohio.
On November 26, 2012, Johnson was
sentenced to a 70 month term of imprisonment by the Northern
District of Ohio.
Following completion of his federal criminal
proceedings, Petitioner was returned to Ohio state custody to
complete service his state sentences.1
Petitioner was granted parole by the State of Ohio on June
28, 2013 and was transferred into federal custody.
His pending
petition does not challenge the legality of his federal
conviction or sentence.
Rather, Johnson maintains that the
Federal Bureau of Prisons (BOP) erred in computing his federal
sentence because it failed to provide him with 7½ months of good
conduct time credits.
See id. at p. 4.
that he is entitled to credit for
Johnson elaborates
7½ months of time served in a
Ohio state correctional facility following imposition of his
1
Petitioner acknowledges that he did not appeal his federal
conviction and sentence. See Doc. 1, p. 1, ¶ 7.
2
federal sentence.2
Respondent argues that the petition should be denied
because Johnson failed to exhaust his available administrative
remedies and his sentence was properly computed.
See Doc. 10,
p. 5.
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).
A habeas
corpus petition may be brought by a prisoner who seeks to
challenge either the fact or duration of his confinement in
prison.
Preiser v. Rodriguez, 411 U.S. 475 (1973), Telford v.
Hepting, 980 F.2d 745, 748 (3d Cir.), cert. denied, 510 U.S. 920
2
18 U.S.C. § 3621(b) authorizes the BOP “to designate the
place of confinement for purposes of serving federal sentences of
imprisonment." Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991).
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. However, a federal
court may not direct that a federal sentence run concurrently with
a state sentence. Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir.
1976).
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(1993).
Federal habeas relief is available only “where the
deprivation of rights is such that it necessarily impacts the
fact or length of detention.”
540 (3d Cir. 2002).
Leamer v. Fauver, 288 F.3d 532,
Since Petitioner is alleging that the BOP
failed to properly calculate his federal sentence, this matter
is properly asserted under § 2241.
Exhaustion
The Respondent contends that according to BOP records
although Johnson filed administrative grievances regarding two
unrelated issues, he failed to seek administrative relief with
respect to his pending claim of improper sentence calculation.
Consequently, Respondent concludes that the petition is subject
to dismissal on the basis of non-exhaustion.
It is noted that
although provided with an opportunity to do so, Petitioner has
not filed a reply to the non-exhaustion argument.
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
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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
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
5
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
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.
In support of the non-exhaustion argument, Respondent has
submitted a declaration under penalty of perjury by USPLewisburg Attorney Advisor Michael Romano.
Exhibit 1.
See Doc. 10-1,
Romano states that based upon a search of the BOP’s
computerized records, Petitioner did not initiate an
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administrative grievance regarding his pending claim of
entitlement to 7½ months of sentence credit.
Accompanying
Romano’s declaration are copies of Johnson’s relevant BOP
administrative grievance records.
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
Johnson’s pending action, had been filed before administrative
remedies had been exhausted.
Ridley v. Smith, 179 Fed. Appx.
109, 111 (3d Cir. 2006).
Based upon their unopposed submissions, this Court is
satisfied that Respondent has satisfied its burden of showing
that Johnson’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
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review.
In conclusion, this matter will be dismissed without
prejudice.
Johnson
may reassert his pending claims in a new
habeas corpus petition if he receives an unfavorable BOP
decision regarding his apparent request for a nunc pro tunc
designation, and thereafter fully exhausts his available BOP
administrative remedies.2
An appropriate Order will enter.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: JANUARY 10, 2017
2
Respondent also points out that the Northern District of
Ohio imposed a sentence below the guideline range because the
federal sentencing court was aware that Johnson would receive no
sentence credit for his state incarceration. See Doc,. 10-1,
Exhibit 2, ¶ 12. As such, this Court agrees with the alternative
argument by Respondent that Petitioner’s claim of entitlement to
federal sentence credit for time spent incarcerated by the State of
Ohio presently lacks merit.
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