NUNEZ PANDALES v. UNDERWOOD

Filing 18

MEMORANDUM OPINION re 7 Petition for Writ of Habeas Corpus filed by OSCAR NUNEZ PANDALES. Signed by Magistrate Judge Patricia L. Dodge on 8/29/2024. (mqe)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
OSCAR NUNEZ PANDALES,
Petitioner,
v.
WARDEN MICHAEL UNDERWOOD,
Respondent.

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Civil Action No. 3:24-cv-38
Magistrate Judge Patricia L. Dodge

MEMORANDUM
Pending before the Court 1 is a Petition for a Writ of Habeas Corpus (ECF No. 7) filed by
Oscar Nunez Pandales (“Petitioner”) under 28 U.S.C. § 2241. For the reasons set forth below, the
Court will dismiss the petition.
I.

Relevant Background
Petitioner, a native and citizen of Colombia, is in the custody of the Federal Bureau of

Prisons (“BOP”) at the Federal Correctional Institution at Loretto, where he is serving a 135-month
sentence for federal drug-related convictions. He has a 2025 release date. Petitioner sought earned
time credits pursuant to the First Step Act but was denied those credits because he is subject to a
final order of deportation.
II.

Discussion
Petitioner raises one ground for relief. He asserts his due process rights were violated by

the denial of his application for earned time credits. (ECF No. 7 at 4.) In response, Respondents
argue: (1) Petitioner did not exhaust his administrative remedies; and (2) Petitioner’s final order

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to
have a United States Magistrate Judge conduct proceedings in this case, including entry of a final
judgment.

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of removal precludes his eligibility to receive earned time credits. (ECF No. 15 at 4-6.) In reply,
Petitioner asserts that: (1) the BOP thwarted his efforts to properly exhaust his administrative
remedies; (2) exhaustion is unnecessary in this case; and (3) his final order of removal is not a
legal one. (ECF No. 17 at 1-4.)
This Court need not resolve the issue of failure to exhaust. Even assuming arguendo that
Petitioner properly exhausted this claim, this Court could not address it because it lacks jurisdiction
over it.
Section 2241 provides, in relevant part, that “[t]he writ of habeas corpus shall not extend
to a prisoner unless...[h]e is in custody in violation of the Constitution or laws or treaties of the
United States[.]” 28 U.S.C. § 2241(c)(3). It confers subject matter jurisdiction upon a federal
prisoner’s custodial court to hear challenges to the BOP’s “execution of” the prisoner’s sentence.
See, e.g., Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012); Woodall v. Federal Bureau of
Prisons, 432 F.3d 235, 243 (3d Cir. 2005) (defining “execution of” the sentence to mean “to ‘put
into effect’ or ‘carry out.’”); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).
At first glance, Petitioner’s claim may appear to be a challenge to the BOP’s execution of
his sentence. However, Petitioner’s dispute is not truly with the BOP. He argues that his final order
of removal is not valid, and thus he is entitled to the earned time credits, because a valid order
must be signed by an immigration judge, but his order is signed by a deportation officer. (ECF No.
17 at 1-3.) Thus, the critical issue he asks this Court to decide is whether the order of removal is
valid. This issue does not concern the BOP’s execution of his sentence.
Further, pursuant to the REAL ID Act of 2005, this Court is precluded from reviewing the
order of removal. In relevant part, the Act provides:
Exclusive means of review. Notwithstanding any other provision of law (statutory
or nonstatutory), including section 2241 of title 28, United States Code [28 USCS
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§ 2241], or any other habeas corpus provision, and sections 1361 and 1651 of such
title [28 USCS §§ 1361 and 1651], a petition for review filed with an appropriate
court of appeals in accordance with this section shall be the sole and exclusive
means for judicial review of an order of removal entered or issued under any
provision of this Act, except as provided in subsection (e). For purposes of this Act,
in every provision that limits or eliminates judicial review or jurisdiction to review,
the terms “judicial review” and “jurisdiction to review” include habeas corpus
review pursuant to section 2241 of title 28, United States Code [28 USCS § 2241],
or any other habeas corpus provision, sections 1361 and 1651 of such title [28
USCS §§ 1361 and 1651], and review pursuant to any other provision of law
(statutory or nonstatutory).
8 U.S.C. § 1252(a)(5).
As the United States Court of Appeals for the Third Circuit has explained, “[t]he REAL ID
Act stripped district courts of jurisdiction over § 2241 petitions challenging removal orders.”
Revan v. Warden, Essex Cty. Corr. Facility, 822 Fed. Appx. 156, 157 (3d Cir. 2020). The Third
Circuit further explained that the term “order of removal” has been “broadly defined” and
“includes within its ambit procedural due process claims … which ‘allege[ ] errors on which the
validity of the final order [are] contingent.’” Id. (citing Verde-Rodriguez v. AG United States, 734
F.3d 198, 206 (3d Cir. 2013). Thus, because Petitioner’s due process claim is contingent on a
determination of the validity of the final order of removal, this Court lacks jurisdiction to review
it.
Further, as the Third Circuit explained in Verde-Rodriguez, a petition for review of a final
order of removal must be filed within thirty days of the original final order of removal. 734 F.3d
at 202-05. Petitioner’s final order is dated August 7, 2023. (ECF No. 15-5 at 2.) He filed the instant
petition on February 21, 2024, (ECF No. 1), well more than thirty days later. Accordingly, even if
this Court were to forward this petition to the Court of Appeals to be treated as a petition for
review, it would be considered untimely. Such a transfer would not be in the interests of justice.

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III.

Conclusion
For all of these reasons, the Court will dismiss the petition.
An appropriate Order follows.

Date: August 29, 2024

/s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge

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