Brown v. Nash et al

Filing 10

REPORT AND RECOMMENDATIONS re 9 Motion for Judicial Economy filed by Terrence M. Brown, 8 Motion to Expedite filed by Terrence M. Brown, 1 Petition for Writ of Habeas Corpus filed by Terrence M. Brown, 5 Motion for Preliminary Injunction filed by Terrence M. Brown. Signed by Judge Mark Lane. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
TERRENCE M. BROWN
Petitioner,
V.
CHERON NASH, WARDEN F.C.I.
BASTROP, AND LORETTA LYNCH,
ATTORNEY GENERAL, U.S.A.,
Respondents.

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A-15-CV-0689-RP-ML

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Before the Court are Terrence Brown’s Petition for Writ of Habeas Corpus [Dkt. #1],
Motion for Preliminary Injunction [Dkt. #5], Motion to Expedite [Dkt. #8], and Motion for
Judicial Economy [Dkt. #9]. This case has been referred to the undersigned by United States
District Judge Robert Pitman for a Report and Recommendation as to the merits pursuant to 28
U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C
of the Local Rules of the United States District Court for the Western District of Texas. After
reviewing the pleadings, the relevant case law, as well as the entire case file, the undersigned
issues the following Report and Recommendation to the District Court.
I.

BACKGROUND

Individually and on behalf of a putative class of all federal inmates within the jurisdiction
of the District Court, Petitioner Terrence M. Brown (“Brown”) seeks relief from a policy of the
Federal Bureau of Prisons (“BOP”).

Pet. [Dkt. #1] at 1.

Brown challenges the BOP’s

calculation of “good conduct time” pursuant to 18 U.S.C. § 3624(b) and Barber v. Thomas, 560

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U.S. 474 (2010). Specifically, Petitioner seeks to require the BOP to calculate good time based
on “the sentence imposed” instead of on “the time served.” Suppl. to Pet. [Dkt. #4] at 11.
Petitioner alleges he has attempted to exhaust administrative remedies regarding this
claim, but exhaustion is “patently futile” as a result of the BOP’s unwritten policy of refusing to
respond to the lowest level of the grievance process, a prerequisite for progressing through the
administrative process. Id. at 2 and Ex. A. Petitioner alleges he has twice filed Inmate Requests
to Staff on the issue he seeks to challenge before this Court, and has yet to receive any response
to his administrative requests, despite multiple attempts to follow up with prison officials. Id. at
2-4 and Ex. B, Ex. C.

Therefore, Petitioner contends, the Court should find that he has satisfied

the exhaustion requirement or, in the alternative, shown that the administrative process can
afford him no relief. Id.
Regarding the substantive merits of his position, Petitioner acknowledges the 2010
Supreme Court decision in Barber v. Thomas expressly held the BOP’s method for calculating
good time credit is a reasonable and lawful reading of this statute. 560 U.S. 474, 488-89 (2010).
Petitioner nevertheless contends that the “recently introduced SAFE Justice Act” indicates
Congressional intent to abrogate Barber insofar as that decision authorizes the calculation of
good time credits based on time served. Pet. [Dkt. #1] at 8-9.
The SAFE Justice Act is a bill, not a statute. H.R. 2944, introduced June 25, 2015. At
present, the bill has not been reported out of committee, and may never become law.
Furthermore, Petitioner concedes that, as of November, 2015, “the language in the SAFE Justice
Act that sought to resolve the issue presented in his § 2241 Motion has now been ignored in later
Acts from Congress that strive to overhaul the Federal Criminal Justice System.” Mot. Jud.
Econ. [Dkt. #9] at 2. Petitioner nevertheless argues that “federal inmates should not languish in
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prison awaiting the acts of Congress in a climate where Congress has failed to act over recent
years on much greater issues than letting evildoers out of their prison cells early.” Id. at 9.
Therefore, he seeks class relief for the “federal inmate population” housed within the District
Court’s jurisdiction. Suppl. to Pet. [Dkt. #4] at 11.
Alternatively, Petitioner seeks injunctive relief ordering the BOP to recalculate his
individual sentence “based on the sentence imposed rather than the moving target of the time he
will serve.” Id. Petitioner has previously challenged the calculation of his individual sentence in
Brown v. Hemingway, 53 F. App’x 338 (6th Cir. 2002). In this prior §2241 petition, Petitioner
raised the same “sentence imposed” versus “time served” argument on which he now relies. Id.
The Sixth Circuit rejected Brown’s petition, finding “the Bureau’s interpretation is reasonable in
light of the statutory language” as applied to Brown’s particular sentence. Id. at 339.
II.

STANDARD OF REVIEW

Upon receipt of a writ of habeas corpus, a court must conduct an initial review to
determine whether it has merit before directing the respondent to show cause why the writ
should not be granted.

28 U.S.C. § 2243.

A habeas petition brought pursuant to

28 U.S.C. § 2241 “is considered to be abusive if it raises ‘the same legal issue’ addressed and
resolved in a prior filing.” Rich v. Tamez, 489 F. App’x. 754 (5th Cir. 2012) (citing United States
v. Tubwell, 37 F.3d 175, 177-78 (5th Cir. 1994); Williams v. Tamez, 466 F. App’x 326, 327 (5th
Cir. 2012)). A successive § 2241 petition raising the same legal issue adjudicated in a prior
filing is an abuse of the writ under 28 U.S.C. § 2244(a). Tubwell, 37 F.3d at 178. Therefore,
such a petition should be dismissed as frivolous. Williams, 466 F. App’x at 327.

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III.

ANALYSIS

Assuming, arguendo, that Brown has exhausted the administrative procedures available
to him, the Magistrate Court finds his habeas petition should be dismissed as frivolous pursuant
to 28 U.S.C. § 2244(a). It is beyond dispute that Brown previously raised the same legal issue
that is now before the Court in his prior § 2241 petition before the Sixth Circuit. Brown v.
Hemingway, 53 F. App’x at 339. Brown has pointed to no change in legal authority or factual
circumstance that would render this claim distinct from his prior §2241 challenge to the
calculation of his good time credits. The fact that Brown was subsequently relocated to the
jurisdiction of the Western District of Texas does not add to or otherwise change the merits of
his petition, which have already been adjudicated. See Stanko v. Davis, 617 F.3d 1262, 1269-72
(10th Cir. 2010) (petitioner’s § 2241 challenge to the computation of his sentence was abusive
because he had brought a substantively similar petition challenging the computation of the same
sentence while incarcerated within the jurisdiction of the Eighth Circuit). Similarly, the fact that
Brown now purports to bring his sentence-computation challenge on behalf of a class of inmates,
instead of solely in his own right, does nothing to alter the fact that “the legal issue remains the
same as the issue raised” in his prior § 2241 petition. Tubwell, 37 F.3d at 178. The undersigned
cannot credit Brown’s argument that the proposed SAFE Justice Act—an unfinalized bill that
admittedly conflicts with the language of other proposed laws on the same issue—somehow
abrogates both the Supreme Court’s binding precedent approving the calculation of good time
credits, Barber v. Thomas, 560 U.S. 474 (2010), and the Sixth Circuit’s final judgment
concerning the proper calculation of good time credits with respect to Brown’s particular
sentence. Brown v. Hemingway, 53 F. App’x at 339.
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The “abuse of the writ” doctrine exists to “empower[] federal courts to control the
potentially endless successive petitions attacking the conviction after an initial denial of habeas
relief.” Griggs v. United States, 253 F. App’x 405, 410 n. 6 (5th Cir. 2007). Brown has not
pointed to any salient change in the facts or governing legal authority that would take his
repetitive claim out of the reach of this gate-keeping doctrine. See In re Cain, 137 F.3d 234,
236-37 (5th Cir. 1998) (explaining the difference between viable multiple habeas claims and
barred successive claims). A petition “is not . . . successive simply because it follows another
petition” if it raises separate claims for relief regarding the administration of a sentence. Id. By
the same token, however, a petition that raises a claim that “was or could have been raised in an
earlier petition” is barred as successive by § 2244. In re Cain, 137 F.3d at 236-37. Because
Brown’s § 2241 claim has already been adjudicated, and his legal argument is further foreclosed
by Supreme Court precedent, his successive §2241 petition should be dismissed as an abuse of
the writ pursuant to 28 U.S.C. § 2244(a). Tubwell, 37 F.3d at 178.
Brown’s related Motion for Preliminary Injunction [Dkt. #5], Motion to Expedite [Dkt.
#8], and Motion for Judicial Economy [Dkt. #9] are all founded on the same challenge to the
BOP’s method of calculating good time credits.

Each of these motions seeks to expedite

consideration of Brown’s challenge and urges the certification of a class and the grant of classwide relief. These motions are without merit: Not only is Brown’s individual claim barred as
an abuse of the writ, but the legal argument he seeks to advance on behalf of a putative class has
been squarely rejected by the United States Supreme Court. Barber v. Thomas, 560 U.S. 474
(2010). In these circumstances, no preliminary injunction, class certification, or other relief
could be appropriate. Therefore, the Motion for Preliminary Injunction [Dkt. #5], Motion to
Expedite [Dkt. #8], and Motion for Judicial Economy [Dkt. #9] should be denied.

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IV.

RECOMMENDATIONS

For the reasons outlined above, the Magistrate Court RECOMMENDS the District Court
DISMISS Terrence Brown’s Petition for Writ of Habeas Corpus [Dkt. #1] WITH PREJUDICE
as frivolous pursuant to 28 U.S.C. § 2244(a).
The Magistrate Court further RECOMMENDS the District Court DENY Brown’s related
Motion for Preliminary Injunction [Dkt. #5], Motion to Expedite [Dkt. #8], and Motion for
Judicial Economy [Dkt. #9].
The Magistrate Court hereby WARNS Petitioner that multiple frivolous filings may
result in sanctions, including an injunction barring the filing of further complaints without leave
of court.
V.

OBJECTIONS

The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
See Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the
Report shall bar that party from de novo review by the District Court of the proposed findings
and recommendations in the Report and, except upon grounds of plain error, shall bar the party
from appellate review of unobjected-to proposed factual findings and legal conclusions accepted
by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106

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S. Ct. 466, 472-74 (1985); Douglass v. United Services Automobile Ass’n, 79 F.3d 1415 (5th Cir.
1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail,
return receipt requested.
SIGNED December 2, 2015
_______________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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