Aldaco v. Nash
REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Manuel Aldaco, 8 MOTION for Sanctions by Manuel Aldaco. Signed by Judge Andrew W. Austin. (ml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
CHERON Y. NASH, WARDEN,
INSTITUTION- BASTROP, TEXAS
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Petitioner Manuel Aldaco’s Writ of Habeas Corpus brought pursuant
to 28 U.S.C. § 2241, filed on September 10, 2015 (Dkt. No. 1); the Government’s Response to Petition
for Writ of Habeas Corpus, filed on November 30, 2015 (Dkt. No. 7); Petitioner’s Reply, filed on
December 9, 2015 (Dkt. No. 9); Petitioner’s Motion for Sanctions, filed on December 3, 2015 (Dkt.
No. 8);1 and the Government’s Response in Opposition to Petitioner’s Motion for Sanctions (Dkt.
No. 10). The Court submits this Report and Recommendation to the United States District Court
pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrate Judges. The undersigned finds that Aldaco’s Petition for Writ of Habeas
Corpus should be dismissed without prejudice for the reasons set out below.
Aldaco requests that the Court sanction the Government, contending that the Government’s
Response to the § 2241 Petition was filed after the deadline set by the Court in its Order issued
September 25, 2015. See Dkt. No. 4. Aldaco is mistaken. The Government’s Response was timely.
Accordingly, Aldaco’s Motion for Sanctions (Dkt. No. 8) is DENIED.
I. GENERAL BACKGROUND
Aldaco’s Federal Sentences
Petitioner Manuel Aldaco (“Aldaco”) has been convicted and sentenced three separate times
in the Western District of Texas. On August 26, 1997, after Aldaco pled guilty to importation of
marijuana, in violation of 21 U.S.C. § 952(a), the District Court sentenced him to a 24-month term
of imprisonment, followed by a three-year term of supervised release and a $100 special assessment
fee. See United States v. Aldaco, 4:97-cr-00070 WRF (W.D. Tex. [Pecos] Aug. 27, 1997). After
he was released, Aldaco was arrested again on May 9, 2010, for transporting marijuana. After
pleading guilty to conspiring to possess and possession with intent to distribute marijuana, in
violation of 21 U.S.C. §§ 841 & 846, Aldaco was sentenced to a 34-month term of imprisonment,
followed by four years of supervised release. United States v. Aldaco, 3:10-cr-1558 KC (W.D. Tex
[El Paso] Oct. 28, 2010). Finally, on October 3, 2012, near the expiration of serving his term of
imprisonment for the second federal sentence, Aldaco was indicted for possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On October 26, 2012, when he was released
from the Bureau of Prisons on the marijuana charges, Aldaco was transferred to the custody of the
U.S. Marshal on the felon-in-possession charges. After Aldaco pled guilty to those charges, U.S.
District Judge Kathleen Cardone sentenced him to a 90-month term of imprisonment “with credit
for time served while in custody for this federal offense since May 9, 2010.” See United States v.
Aldaco, 3:12-cr-2318 KC (W.D. Tex [El Paso] June 19, 2014).
The BOP’s Calculation of his Sentence
Federal law provides that “[a] defendant shall be given credit toward the service of a term
of imprisonment for any time he has spent in official detention prior to the date the sentence
commences . . . that has not been credited against another sentence.” 18 U.S.C. § 3585(b). The
Attorney General, through the BOP, makes the sentence calculation and “determines what credit, if
any, will be awarded to the prisoner for time spent in custody prior to the commencement of their
federal sentences.” Leal v. Tombone, 341 F.3d 427, 428 (5th Cir. 2003). The Attorney General’s
decision regarding the calculation of a prisoner’s sentence is reviewable via a 28 U.S.C. § 2241
petition. See United States v. Gabor, 905 F.2d 76, 77–78 (5th Cir. 1990). Through this § 2241
petition, Aldaco is challenging the BOP’s calculation of his sentence.
Aldaco’s sentence for the felon-in-possession offense commenced on June 19, 2014, the date
it was imposed. See 18 U.S.C. § 3585(a). As already noted, the District Court sentenced Aldaco to
a 90-month term of imprisonment for the felon-in-possession offense “with credit for time served
while in custody for this federal offense since May 9, 2010.” United States v. Aldaco, 3:12-cr-2318
KC (W.D. Tex [El Paso] June 19, 2014) (emphasis added). Prior custody credit is governed by 18
U.S.C. § 3585(b), which provides:
A defendant shall be given credit toward the service of a term of imprisonment for
any time he has spent in official detention prior to the date the sentence commences-(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after
the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585(b) (emphasis added). There is an inherent inconsistency between what this statute
calls for, and the district judge’s statement that Aldaco was to receive credit for time he spent in
custody on the gun charge (“this” federal offense) going back to May 9, 2010. As already noted,
Aldaco was in custody serving the sentence on his second marijuana conviction from May 9, 2010,
until October 26, 2012, thus that time period had already been “credited against” a different
sentence—the marijuana conviction. However, in an effort to carry out Judge Cardone’s intent with
regard credit for time served, the BOP consulted with Judge Cardone and, based on that, adjusted
Aldaco’s sentence from 90 months to 60 months and 12 days. See Attach. 6 to Dkt. No. 7. With
this adjustment, the BOP has determined that Aldaco’s projected release date, including good-time
credit, is March 16, 2017. Aldaco is currently serving his term of imprisonment at the Federal
Correctional Institution in Bastrop, Texas.
Instant § 2241 Petition
Aldaco argues that the BOP “has incorrectly calculated the term of imprisonment and time
credited by Court order” and contends that he is eligible for release on March 10, 2016. Although
he does not raise the claim in his actual § 2241 Petition, Aldaco also argues in his “Memorandum
of Law in Support of Application for Writ of Habeas Corpus ” that he be placed in a residential reentry center (“RRC”). Aldaco’s § 2241 Petition must be dismissed because he has failed to exhaust
his administrative remedies.
A federal prisoner must “exhaust his administrative remedies before seeking habeas relief
in federal court under 28 U.S.C. § 2241.” Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994); see also,
United States v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990) (a petitioner seeking habeas relief under
Section 2241 “must first exhaust his administrative remedies through the Bureau of Prisons”). In
order to properly exhaust administrative remedies under § 2241, a prisoner must first make an
informal resolution of his complaint by filing a BP-8 form. 28 C.F.R. § 542.13(a). If informal
attempts are unsuccessful, the prisoner must submit a written complaint to the Warden using a BP-9
form. 28 C.F.R. § 542.14(a). If the prisoner is not satisfied with the Warden’s response, he may
appeal to the Regional Director using a BP-10 form. 28 C.F.R. § 542.15. If still unsatisfied, the
prisoner may appeal to the Office of General Counsel using a form BP-11. 28 C.F.R. § 542.15. A
prisoner may seek relief in federal court only after he has exhausted all levels of this administrative
review process. Noonan v. Bragg, 2012 WL 1890254 at *1 (W.D. Tex. May 23, 2012). In the event
that a prisoner feels he has been improperly refused credit against his sentence, “the prisoner must
first ‘seek administrative review of the computations of [his] credit, and, once [he has] exhausted
[his] administrative remedies, [the] prisone[r] may only then pursue judicial review of these
computations.’” United States v. Setser, 607 F.3d 128, 133 (5th Cir. 2010) (quoting United States
v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992)), aff’d, 132 S.Ct. 1463 (2011). “Exceptions to the
exhaustion requirement are appropriate where the available administrative remedies either are
unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such
remedies would itself be a patently futile course of action.” Fuller, 11 F.3d at 62 (citation omitted).
Exceptions to the exhaustion requirement apply only in “extraordinary circumstances,” and the
petitioner bears the burden of demonstrating the futility of administrative review. Id.
The record demonstrates that Aldaco has not exhausted his administrative remedies at the
BOP regarding any of the claims raised in his Petition. While Aldaco submitted an informal
complaint and later a formal Administrative Remedy Request with regard to his claim that the BOP
incorrectly calculated his sentence, he did not pursue any appeal to the Regional Director or the
Office of General Counsel as required to exhaust his administrative remedies. See Declaration of
Cynthia Bell, Attach. to Dkt. No. 7. Moreover, Aldaco has failed to submit any complaint, formal
or informal, with regard to his claim that he be placed in an RRC. Accordingly, Aldaco has failed
to pursue all available administrative remedies in this case and his Petition must, therefore, be
dismissed. See Setser, 607 F.3d at 133 (finding that the petitioner must exhaust his administrative
remedies before challenging BOP’s sentence calculation); Broderick v. Chapman, 364 F. App’x 111,
112 (5th Cir. 2010) (affirming dismissal of § 2241 petition where inmate abandoned the
administrative process); Noonan, 2012 WL 1890254 at *2 (dismissing § 2241 petition asking to be
placed in RRC where petitioner failed to exhaust his administrative remedies).
Further, Aldaco has failed to carry his burden of showing that administrative remedies are
either unavailable or wholly inappropriate to the relief sought or that exhausting his claims through
the administrative process would be futile. While Aldaco argues that pursuing further administrative
remedies would be “futile” because the BOP is unlikely to change his release date, “the mere fact
that Petitioner believes his administrative review will be denied does not make this remedy futile.”
Herman v. Wendt, 2004 WL 68018, at *2 (N.D. Tex. Jan. 13, 2004).2 If the BOP has erroneously
calculated Aldaco’s sentence, it has the authority to correct that error and should be permitted to do
so. See Smith v. Thompson, 937 F.2d 217, 219 (5th Cir.1991) (agency should be given opportunity
to correct its own error before aggrieved party seeks judicial intervention). Accordingly, Aldaco’s
§ 2241 Petition must be dismissed for failure to exhaust administrative remedies.
Based upon the foregoing, the undersigned HEREBY RECOMMENDS that the District Court
DISMISS WITHOUT PREJUDICE Manuel Aldaco’s Petition for Writ of Habeas Corpus pursuant
to § 2241 (Dkt. No. 1) for failure to exhaust his administrative remedies.
Unlike the petitioner in Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir.),
cert. denied, 133 S.Ct. 561 (2012), Aldaco is not arguing in this case that the BOP’s regulations or
governing statutes are unconstitutional.
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253©
(1)(A). A certificate of appealability may issue only if a movant has made a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v.
McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a District Court rejected a
movant’s constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists
would find the District Court’s assessment of the constitutional claims debatable or wrong.” Id.
“When a District Court denies a habeas petition on procedural grounds without reaching the
petitioner’s underlying constitutional claim, a COA should issue when the petitioner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would find it debatable whether the District Court was
correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal of Petitioner’s habeas petition on
procedural grounds, nor find that the issues presented are adequate to deserve encouragement to
proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029 (2003) (citing Slack, 529 U.S. at
484). Accordingly, it is respectfully recommended that the Court shall not issue a certificate of
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)©. Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by the
district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest injustice.
Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir.
To the extent that a party has not been served by the Clerk with this Report and
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
SIGNED this 2nd day of February, 2016.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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