Jones v. USA

Filing 17

MEMORANDUM OPINION AND ORDER - Jones, who has failed to respond to the Respondent's MSJ, has not met her burden to show that exhaustion should be excused. Based on the foregoing, the court ORDERS as follows: 1. The 1 Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 filed by Nnenna Mary Jones is DISMISSED WITHOUT PREJUDICE for want of prosecution and for lack of exhaustion. 2. The Respondent's 13 MOTION for Summary Judgment and Response filed on behalf of Warden Tanisha Hall is GRANTED. 3. Petitioner's 16 MOTION Expedited Consideration is DENIED AS MOOT. (Signed by Judge Sim Lake) Parties notified. (sra4)

United States District Court
Southern District of Texas

ENTERED
November 22, 2024

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Nathan Ochsner, Clerk

NNENNA MARY JONES,
BOP #28527-510,

§
§
§
Petitioner,
§
§
v.
§
§
TANISHA HALL, WARDEN, FPC BRYAN,§
§
Respondent.
§

CIVIL ACTION NO. H-24-2816

MEMORANDUM OPINION AND ORDER
While in custody of the United States Bureau of Prisons at the
Federal Prison Camp in Bryan, Texas

("FPC Bryan"), Nnenna Mary

Jones filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C.
§ 2241

{"Petition")

(Docket Entry No. 1), with an accompanying

Memorandum for Habeas Corpus Petition ("Memorandum") (Docket Entry
No. 1-1), challenging the calculation of time credits on her
sentence.

The respondent, Warden Tanisha Hall, has filed a Motion

for Summary Judgment and Response

("Respondent's MSJ")

(Docket

Entry No. 13), arguing that the Petition must be dismissed because
Jones failed to exhaust available administrative remedies before
filing suit.

Jones has not filed a response and her time to do so

has expired.

This action will be dismissed without prejudice for

the reasons explained below.

I.

Background

Jones was convicted of one count of wire fraud.1

In December of

2023 Jones was sentenced to serve a 14-month term of imprisonment,
followed by a three-year term of supervised release.2

Jones does not

challenge the validity of her conviction or sentence.
In her Petition, which the Clerk docketed on July 10, 2024, 3
Jones argues that the BOP is miscalculating her good-time credits
under 18 U.S.C. § 3642(g)(10). 4

She asserts that she is "entitled

to immediate transfer to prerelease custody

. under 18 U.S.C.

[§] 3642(g)(10) which states that the 10% or 6 months time limit
placed on home confinement eligibility under the Second Chance Act
is

no

longer

recidivate." 5

applicable

to

offenders

with

minimum

risk

to

She further argues that "[b]ased on my projected

good conduct time,

I would have a statutory release date of

See Memorandum, Docket Entry No. 1-1, p. 1; Respondent's MSJ,
Docket Entry No. 13, p. 3 (referencing United States v. Jones,
Criminal No. 4:22-CR-260 (E.D. Tex.)); see also Petition, Docket
Entry No. 1, p. 1.
For purposes of identification, all page
numbers refer to the pagination imprinted by the courts Electronic
Case Filing system.
1

See Memorandum, Docket Entry No. 1-1, p. 1; Respondent's MSJ,
Docket Entry No. 13, p. 4.
2

As pointed out by the respondent, Jones is not entitled to
the benefit of the Prison Mailbox Rule because Jones did not use
the prison mailing system to mail the Petition. Jones states in
the Petition that the Petition was ?prepared and sent via email to
a family member to help me mail due to time constraints."
Petition, Docket Entry No. 1, p. 8.
3

See Petition, Docket Entry No. 1, p. 2.

4

Memorandum, Docket Entry No. 1-1, p. 1.

5

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January 28th, 2025; but because of the application of Earned Time
Credits under the First Step Act, my conditional projected release
date is October 15th, 2024." 6

Jones requests that the court order

the BOP to place her on supervised release. 7

She also requests

that "if by August 2024 no decision has been made, I request for my
supervised release Sentence of 3 years to be reduced to 1 year [.] " 8
The respondent has moved for summary judgment, arguing that
the Petition must be dismissed because Jones failed to exhaust
available administrative remedies before pursuing relief in federal
court. 9

The court directed Jones to respond within 30 days to any

motion filed by the respondent.10

The court warned Jones that her

failure

time

to

respond

within

the

allowed

could

result

in

dismissal for want of prosecution under Fed. R. Civ. P. 4l(b) . 11
Jones has not

filed a response as directed within the time

allowed.12

7

Petition, Docket Entry No. 1, p. 7.

See Respondent's MSJ, Docket Entry No. 13, pp. 5-17. The
respondent argues in the alternative that Jones' claim is without
merit. See id. at 17-29. Because Jones clearly failed to exhaust
administrative remedies before filing this action and has not filed
a response to the Respondent's MSJ, the court does not address the
respondent's alternative arguments.
9

10

see Order to Answer, Docket Entry No. 7, p. 2 «:II 4.

11

see id. at 3 «:II 4.

On October 16, 2024, Jones filed a "Motion for Expedited
Consideration" (Docket Entry No. 16) .
In the one-page motion,
(continued... )
12

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II.
A.

Discussion

Want of Prosecution
The respondent states that Jones was released from FPC Bryan

to a half-way house sometime after her Petition was filed. 13

The

certificate of service reflects that a copy of Respondent's MSJ was
sent to Jones at FPC Bryan, to the half-way house facility where
she was assigned, and to an address Jones provided in a Notice of
Change of Address. 14

Jones has not filed a response to the

Respondent's MSJ as directed by the court. 15

Her failure to comply

with a court order to provide a response to the Respondent's MSJ
indicates
dismissal.

that

she

lacks

due

diligence

and

is

grounds

for

See Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir.

1998) (noting that a district court may dismiss an action
sponte for failure to prosecute or to comply with any court order);
Comeaux v. Cockrell, 72 F. App'x 54, 56 (5th Cir. July 15, 2003)
(per curiam)

(finding no abuse of discretion in dismissing a

prisoner's suit for failure to comply with court orders).

(...continued)
Jones simply requests that the court rule quickly on the pending
Petition.
She does not address the arguments made in the
Respondent's MSJ.
Respondent's MSJ, Docket Entry No. 13, p. 1 fn.1.
14

See id. at 31.
Order to Answer, Docket Entry No. 7, p. 2 ? 4.
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Because Jones has

led to comply with a court order, her

Petition is subject to dismissal for want of prosecution pursuant
to Fed. R. Civ. P. 4l(b).

B.

Failure to Exhaust Administrative Remedies
In addition, the respondent has presented evidence that Jones

did not complete every step of the BOP's administrative remedy
process as required before filing this suit. 16

A federal prisoner

seeking relief under 28 U.S.C. § 2241 "'must first exhaust [her]
administrative remedies through the Bureau of Prisons.'" Rourke v.
Thompson, 11 F.3d 47, 49 (5th Cir. 1993) (quoting United States v.
Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990) (citations omitted)).
The Bureau of Prisons has a four-step administrative remedy
process, including:

"(1) informal resolution of the issue with

prison staff, submitted on form BP-8; (2) a formal administrative
remedy request to the Warden, submitted on form BP-9; (3) an appeal
to the Regional Director,

submitted on form BP-10;

and (4) a

national appeal to the Office of General Counsel in Washington,
D.C., submitted on form BP-11."

Butts v. Martin, 877 F.3d 571, 582

(5th Cir. 2017) (citing 28 C.F.R. §§ 542.13-15). Exceptions to the
exhaustion requirement apply only where the petitioner demonstrates
that "the available administrative remedies either are unavailable
or wholly inappropriate to the relief sought, or where the attempt
Declaration of Tanya Smith, Exhibit A to Respondent's
MSJ, Docket Entry No. 13-1, pp. 3-5 ii 5-13.
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to exhaust such remedies would itself be a patently futile course
of action."

Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per

curiam) (internal quotation marks and citation omitted).
Jones acknowledges that she did not exhaust her administrative
remedies before seeking relief in federal court.17

She argues that

engaging in the administrative process is "futile" because it is
"archaic" and is "set up to frustrate prisoners" because the
process takes too long.18 Jones has not met her burden to show that
available administrative remedies were unavailable or that it would
have been patently futile to try.

See, e.g., Garza v. Davis, 596

F.3d 1198, 1200 (10th Cir. 2010) (rejecting petitioner's argument
was futile to exhaust administrative remedies "since BOP

that

had predetermined the issues"); Bringas v. Gillis, Civil Action
No. 5:19-cv-14-DCB-MTP, 2020 WL 8993116, at *2 (S.D. Miss. Dec. 10,
2020) (holding that petitioner's assertion that exhaustion would
take "too long" did not demonstrate that the administrative
remedies are unavailable or futile), report and recommendation
adopted by, Civil Action No. 5:19-CV-14-DCB-MTP, 2021 WL 1151532
(S.D. Miss. Mar. 25, 2021); Fernandez v. Warden, FCI Ft. Dix, Civil
Action No. 24-9014 (KMW), 2024 WL 4542198, at *2 (D.N.J. Oct. 21,
2024) ("Petitioner's speculation that he would not receive relief
or that

would take too long to exhaust his claims does not make

Petition, Docket Entry No. 1, p. 2 i 7, p. 3 i 8(a);
Memorandum, Docket Entry No. 1-1, p. 1.
18

Memorandum, Docket Entry No. 1-1, p. 1.
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the exhaustion process futile - the process would still serve the
valid purpose of producing a record for review and in any event
would have permitted Petitioner to dispute any factual issues he
may have had.").
The Fifth Circuit has upheld the dismissal of a federal
prisoner's habeas petition under § 2241 for failure to exhaust
administrative remedies related to an earned time-credit dispute.
See Davis v. McConnell, No. 21-30091, 2021 WL 4467620, at *1-2 (5th
Cir. 2021) (per curiam, unpublished) (rejecting the petitioner's
arguments that exhaustion would be futile because he did not make
a

?strong

showing"

that

the

process

was

inadequate

or

that

irreparable harm would result from requiring exhaustion); see also
Gutierrez v. Hijar, No. EP-22-CV-446-FM, 2023 WL 311913, at *2-3
(W.D. Tex. Jan. 18, 2023) (concluding that dismissal was warranted
for failure to exhaust where the petitioner presented no evidence
showing that remedies were unavailable or inappropriate to the
relief

sought).

Jones,

who

has

failed

to

respond

to

the

Respondent's MSJ, has not met her burden to show that exhaustion
should be excused.

When administrative remedies have not been

exhausted as required, a habeas petition is properly dismissed.
See Rourke, 11 F.3d at 49 (dismissing a habeas petition from a
federal

prisoner

referencing 28

as

U.S.C.

unexhausted

and

§

now

1915(d),

therefore
codified

frivolous,

at 28

U.S.C.

§ 1915(e)(2)(B)(i)). Because the respondent is entitled to summary
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judgment on this issue, the Petition will be dismissed for this
additional reason.

III.

Conclusion

Based on the foregoing, the court ORDERS as follows:
1.

The Petition for a Writ of Habeas Corpus Under 28
U.S.C. § 2241 filed by Nnenna Mary Jones (Docket
Entry No. 1) is DISMISSED WITHOUT PREJUDICE for
want of prosecution and for lack of exhaustion.

2.

The Respondent's Motion for Summary Judgment filed
on behalf of Warden Tanisha Hall (Docket Entry
No. 13) is GRANTED.

3.

Petitioner's Motion for Expedited Consideration
(Docket Entry No. 16) is DENIED AS MOOT.

The Clerk will provide a copy of this Memorandum Opinion and
Order to the parties.

SIGNED at Houston, Texas, on this 22nd day of November, 2024.

SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE

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