Aubrey v. United States of America
Filing
8
MEMORANDUM OPINION AND ORDER. DISMISSED WITHOUT PREJUDICE. Signed by Judge Frank Montalvo. (lc3)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JERRY L. AUBREY, Reg. No. 66910-112,
Petitioner,
fl.-'
t
§
§
§
v.
§
EP-18-CV-119-FM
§
UNITED STATES OF AMERICA,
Respondent.
§
§
MEMORANDUM OPINION AND ORDER
Jerry L. Aubrey, a prisoner confined at the La Tuna Federal Correctional Institution in
Anthony, Texas,' challenges the calculation of his sentence through a pro se "Motion to Grant
Credit for Time Served while in Federal Custody, Pursuant to Plea Agreement and Authority
Pursuant to Title 18 U.S.C. Section 3582" (ECF No. 2). Aubrey claims the Bureau of Prisons
denied him credit for time served from the day federal officials took him into custody on October
16, 2013, until the day the United States District Court for the Central District
of California
sentenced him in cause number 8:13-CR-167-1 on May 16, 2016.
The Court notes that in the federal judicial system, a petitioner may attack the manner in
which his sentence is executed in the district court with jurisdiction over his custodian pursuant to
a petition for a writ
of habeas corpus under 28 U.S.C. § 2241.2 The Court accordingly construes
Aubrey's pleading as a § 2241 petition.3
However, for the reasons discussed below, the Court
Anthony is located in El Paso County, Texas, which is within the territorial confines of
the Western District of Texas. 28 U.S.C. § 124(d)(3) (2012).
2
Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001); Tolliver v.
Dobre, 211 F.3d 876, 877 (5th Cir. 2000); Un ited States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
See Order Transferring Def.'s Motion, ECF No. 1 ("Aubrey's motion is properly
characterized as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. He contends that
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will dismiss Aubrey's petition, pursuant to 28 U.S.C. § 2243.
FAILURE TO PAY FILING FEE
Aubrey did not pay the $5.00 filing fee or submit an application to proceed in forma
pauperis when he filed his pleading in the Central District of California on January 29, 2018.
After the California Court transferred the matter to the Western District of Texas,5 this Court
ordered Aubrey to either pay the filing fee or submit an application to proceed in forma pauperis
on or before May 14, 2018.6
The Court warned Aubrey that his failure to comply with the
Court's order within the time specified could result in the dismissal of his petition without further
notice to him, pursuant to Federal Rule of Civil Procedure 41(b).7 The Court explained "[t]his
authority [under Rule 4 1(b)] flows from the Court's inherent power to control its docket and
the BOP did not give him credit "for jail time served from the date he came into federal custody,
October 26, 2013 through his sentencing date of May 16, 2016." (Petition, p. 4.) His petition
"challenge[s] the manner, location, or conditions of [his] sentence's execution," and thus falls
under Section 2241. Harrison v. 011ison, 519 F.3d 952, 956 (9th Cir. 2008). Section 2241
petitions must be brought in the jurisdiction where the defendant is in custody. Rumsfeld v.
Padilla, 542 U.S. 426, 443 (2004)."). See also Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A
document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.")
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). Cf Fed. Rule Civ. Proc. 8(f) ("All pleadings
shall be so construed as to do substantial justice").
28 U.S.C. § 2243 (2012) ("A court.. . entertaining an application for a writ of habeas
corpus shall forthwith award the writ or issue an order directing the respondent to show cause why
the writ should not be granted, unless it appears from the application that the applicant or person
detained is not entitled thereto.").
Jd.
6
Order to Cure, ECF No. 3.
Larson
v.
Scott, 157 F.3d 1030, 1031 (5th Cir.1998).
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prevent undue delays in the disposition of pending cases."8
As of this date, Aubrey has not complied with the Court's order. On this ground alone, the
Court may dismiss Aubrey's petition. But there is more.
FAILURE TO EXHAUST
In a separate order to answer questionnaire, the Court notes an initial issue which it must
address in reviewing a § 2241 petition is whether the petitioner exhausted his administrative
remedies.9
This is because a federal prisoner must typically exhaust his administrative remedies
before seeking habeas relief.'0 Exhaustion requires the petitioner to "fairly present all of his
claims" through appropriate channels prior to pursuing federal habeas
relief.11
Exhaustion
"serves the twin purposes of protecting administrative agency authority and promoting judicial
efficiency."2
"When an agency has the opportunity to correct its own errors, a judicial
controversy may well be mooted, or at least piecemeal appeals may be
avoided."3
Additionally,
"exhaustion of the administrative procedure may produce a useful record for subsequent judicial
consideration."14
These concerns apply with particular force "when the action under review
8
Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Linkv.
Wabash R.R. Co., 370 U.S. 626 (1962)).
Order to Answer Questionnaire at 1, ECF No. 4.
'o
See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curiam) (addressing exhaustion in
context of a § 2241 challenge by a federal prisoner to a parole decision).
'
See Dickerson v. Louisiana, 816 F.2d 220, 228 (5th Cir. 1987) (addressing a § 2241
petition filed by a state pre-trial detainee).
12
McCarthy v. Madigan, 503 U.S. 140, 145 (1992).
'
Id. (citing Parisi v. Davidson, 405 U.s. 34, 37 (1972); McKart v. United States, 395 U.S.
185, 194 (1969)).
''
Id. (citing Weinberger v. SaijI, 422 U.S. 749, 765 (1975).
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involves exercise of the agency's discretionary power or when the agency proceedings in question
allow the agency to apply its special expertise."5
In the order, the Court also points out exhaustion requirements "may be subject to certain
defenses such as waiver, estoppel or equitable
However, when "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," the
petitioner need not exhaust his administrative remedies.'7 Such exceptions to the exhaustion
requirement "apply only in 'extraordinary circumstances,' and [the petitioner] bears the burden of
demonstrating the futility of administrative
revjew."18
If a federal inmate carries his burden to
demonstrate an applicable exception to the exhaustion requirement, he may obtain a merits ruling
on his § 2241 petition despite a lack of exhaustion.'9
The Court further explains in the order that the Bureau of Prisons uses a multi-tiered
administrative remedy program whereby inmates can "seek formal review of an issue relating to
any aspect of [their] own confinement."20 First, the inmate must present his particular complaint
to the prison staff and attempt to resolve the issue in an informal manner.2'
'
If the complaint
Id. (citing McKart, 395 U.S. at 195).
16
Order to Answer Questionnaire at 4 (citing Wright v. Hollingsworth, 260 F.3d 357, 358
n.2 (5th Cir. 2001)).
'
Fuller,
11
F.3dat62.
18
Id.
19
Id.
20
Order to Answer Questionnaire at
21
28 C.F.R. § 542.13(a).
3
(citing 28 C.F.R. § 542.10(a)).
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cannot be resolved informally, the inmate must file a formal written administrative remedy request
on a BP-9 form with the prison warden.22 The warden has twenty days to respond, which may be
extended by an additional twenty days.23 Any adverse decision by the warden must be appealed
to the appropriate regional director by filing a BP- 10 form.24 The regional director has thirty days
to issue a response, which may be extended by an additional thirty days. The final step in the
administrative review process is an appeal to the Office of General Counsel on a BP- 11
form.25
The General Counsel has forty days to issue a response.26 If an inmate does not receive a
response within the time allotted for a reply, he may consider the absence of a response a denial at
that level and proceed to the next level.27 An inmate may seek relief in federal court only after he
has exhausted all levels of the administrative review process.28
The Court advised Aubrey that before it would permit him to proceed with his
§
2241
petition, it would require him to file with the District Clerk, on or before May 14, 2018, his
answers to a questionnaire on whether he exhausted his claims.29
22
Id. § 542.14.
23
Id.542.18.
24
Id. § 542.15(a).
25
Id.
26
Id. § 542.18.
27
Id.
28
See Lundy v. Osborn, 555 F.2d 534, 535 (5th Cir. 1977) ("Only after such remedies are
exhausted will the court entertain the application for relief in an appropriate case.").
29
Order to Answer Questionnaire at 4. Cf Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999) (reaffirming use of questionnaire as useful and proper means for court to develop factual
basis of pro se plaintiffs civil rights complaint); Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994)
(requiring further development of insufficient factual allegations before dismissal under § 1915 is
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In his answers to the questionnaire filed timely on May 11, 2018, Aubrey claims he
submitted a BP- 10 form to the appropriate regional director, but never received a response 30 He
admits he never pursued the matter further with an appeal to the Office of the General Counsel on
a BP-1 1 form.3' He concedes an exception to the exhaustion did not apply in his case.32
CONCLUSIONS AND ORDERS
The Court accordingly concludes that Aubrey has neither paid the $5.00 filing fee nor
applied to proceed in forma pauperis.
The Court further concludes that it appears from
Aubrey' s responses to the questionnaire that he has not exhausted his administrative remedies
with the Bureau of Prisons and he is not entitled to § 2241
relief.33
The Court, therefore, enters
the following orders:
IT IS ORDERED that the $5.00 filing fee is WAIVED.
IT IS FURTHER ORDERED that the District Clerk shall file Jerry L. Aubrey's pro se
"Motion to Grant Credit for Time Served while in Federal Custody, Pursuant to Plea Agreement
and Authority Pursuant to Title 18 U.S.C. Section 3582," which the Court construes as a petition
for a writ of habeas corpus under 18 U.S.C. § 2241.
IT IS ALSO ORDERED that Jerry L. Aubrey's petition for a writ of habeas corpus under
18 U.S.C. § 2241 and his civil cause are DISMISSED
WITHOUT PREJUDICE for failure to
proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as
useful and proper means for court to develop factual basis of pro se plaintiffs complaint).
30
Pet'r's Answers to Questionnaire at
31
Id.
32
Id.
at2.
28 U.S.C. § 2243.
1, ECF
No. 7.
exhaust.
IT IS FURTHER ORDERED that all pending motions, if any, are DENIED as moot.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.
SIGNED this
/
day of May, 2018.
FRANK MONTALVO
UNITED STATES DISTRICT JUDGE
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