Luna De La Cruz, Wellington v. Emmerich, E.

Filing 11

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus. Signed by District Judge William M. Conley on 11/22/24. (jat),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WELLINGTON LUNA DE LA CRUZ,
Petitioner,
v.
WARDEN E. EMMERICH,1

OPINION and ORDER
24-cv-346-wmc

Respondent.
Representing himself, petitioner Wellington Luna De La Cruz seeks a federal writ of
habeas corpus under 28 U.S.C. § 2241 to challenge the calculation of his sentence by the
United States Bureau of Prisons (“BOP”). (Dkt. #1.) Specifically, petitioner contends that he
has been denied earned time credits under the First Step Act, 18 U.S.C. § 3632(d)(4)(A), that
would shorten the length of his imprisonment. Respondent has filed a response, arguing that
the petition must be denied because (1) petitioner failed to exhaust administrative remedies
before seeking relief; and (2) even if he had exhausted the available administrative remedy
process, his petition is without merit because he is not eligible for the time credits he seeks.
(Dkt. #8.) The petition will be denied and this case will be dismissed for the reasons explained
below.

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Although petitioner simply lists the FCI Oxford Warden as respondent, the court substitutes
Warden E. Emmerich as the proper respondent pursuant to Rule 2(a) of the Rules Governing
Section 2254 Cases, which apply in proceedings governed by 28 U.S.C. § 2241.

OPINION
Petitioner is currently imprisoned as the result of a conviction for conspiracy to
distribute and possession with intent to distribute heroin from the United States District Court
for the District6 of New Jersey. (Ford Decl. (dkt. #10), at ¶ 2.) His projected release date is
December 28, 2024. (Id. at ¶ 8.) Petitioner argues, however, that he would be entitled to
immediate release if the BOP recalculated his sentence to include time credits earned under
the First Step Act, 18 U.S.C. § 3632(d)(4)(A) (also known as FSA Time Credits or “FTCs”).
(Dkt. #1, at 1.) The First Step Act provides eligible inmates the opportunity to earn these
time credits, which apply toward time in prerelease custody or early transfer to supervised
release, through successful participation in “evidence-based recidivism reduction programs or
productive activities[.]” 18 U.S.C. § 3632(d)(4)(C).
A federal prisoner may seek a writ of habeas corpus under 28 U.S.C. § 2241 to challenge
the execution of his sentence. Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998)
(recognizing that a motion seeking relief concerning the execution of a sentence, but not the
validity of a conviction, falls under § 2241). Still, to obtain a writ of habeas corpus a prisoner
must show that he is in custody in violation of the Constitution or laws if the United States.
28 U.S.C. § 2241(c)(3). Moreover, before seeking relief in federal court a prisoner must
exhaust administrative remedies. See Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004)
(observing that the “common-law exhaustion rule applies to § 2241 actions”); Clemente v. Allen,
120 F.3d 703, 705 (7th Cir. 1997) (per curiam) (courts may “review a claim concerning the
computation of a sentence only after administrative remedies have been exhausted”).
To exhaust administrative remedies, a prisoner incarcerated by the BOP must first file
an informal complaint with institution staff. 28 C.F.R. § 542.13(a). If the complaint is not

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resolved informally, a prisoner must file an administrative remedy request on a BP-9 form at
the institution where he is incarcerated. 28 C.F.R. § 542.14(a). If the prisoner is unsatisfied
with the warden’s response to his BP-9, he may submit an appeal to the Regional Director on
a BP-10 form within 20 days. 28 C.F.R. § 542.15(a). If the prisoner is unsatisfied with the
Regional Director’s response, he may submit an appeal on a BP-11 form to the Office of
General Counsel within 30 days. Id. Exhaustion of administrative remedies requires complete
exhaustion, even if the appeals process results in the denial of the requested relief. Greene v.
Meese, 875 F.2d 639, 641 (7th Cir. 1989).
Respondent notes that petitioner did not complete the BOP administrative remedy
process. (Warzynski Decl. (dkt. #9) at ¶ 9.) Petitioner concedes that he did not exhaust, but
argues that exhaustion should be excused because it would be futile to pursue the
administrative remedy process regarding the relief sought in this case. The court need not
resolve whether petitioner may be excused from the exhaustion requirement because his claim
fails on the merits.
Respondent points out that petitioner was convicted of distributing heroine in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(i). (Ford Decl. (dkt. #10) at ¶ 4.) The sentencing
court found that, in committing the offense, petitioner was an organizer, leader, manager, or
supervisor of others pursuant to United States Sentencing Commission § 3B1.1(b). (Id. at
¶¶ 4-5.) Prisoners convicted of an offense related to the distribution of heroin who are found
to be an organizer, leader, manager, or supervisor of others in the offense are expressly excluded
from eligibility for earning FTCs under the First Step Act. 18 U.S.C. § 3632(d)(4)(D)(lxv).
In addition, respondent has provided an Immigration Detainer Notice of Action dated
December 16, 2023, and a Detainer Action Letter dated December 19, 2023, showing that

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petitioner is subject to a final order of removal. (Ford Decl. (dkt. ##10-4, 10-5) attachments
E and F.) Respondent also provides an Order of Removal that was entered against petitioner,
who waived an appeal. (Ford Decl. (dkt. #10-6) attachment G.) Prisoners who are under a
final order of removal are expressly excluded from eligibility for FTCs under the First Step Act.
See 18 U.S.C. § 3632(d)(4)(E)(i) (“A prisoner is ineligible to apply time credits under
subparagraph C if the prisoner is the subject of a final order of removal under any provision of
the immigration laws[.]”); see also 28 C.F.R. § 523.44(a)(2) (stating that the BOP “may not
apply FSA Time Credits toward prerelease custody or early transfer to supervised release” for
prisoners subject to a final order of removal under immigration laws). Petitioner fails to show
that FTCs apply to shorten his term of imprisonment or that his sentence has been calculated
incorrectly. Because he is not entitled to relief under 28 U.S.C. § 2241, his petition must be
denied.

ORDER
IT IS ORDERED that:
1. The petition filed by Wellington Luna De La Cruz (dkt. 1) is DENIED.
2. This case is DISMISSED with prejudice.
Entered on this 22nd day of November, 2024.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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