Narvaez v. Warden, FCI-Florence

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSÉ ALBERTO NARVÁEZ, )
)
Petitioner, )
)
v. ) Case No. 25-3175-JWL
)
Warden, FCI-Florence,1 )
)
Respondent. )
)
_______________________________________)
MEMORANDUM AND ORDER
Petitioner filed a pro se petition for habeas corpus under 28 U.S.C. § 2241, by which
he challenges the calculation and application of credits against his sentence. For the
reasons set forth below, the Court dismisses the petition for failure to exhaust
administrative remedies.
Petitioner, who was imprisoned within this judicial district at the time he filed the
petition, is serving a 40-month sentence and has a projected release date of November 14,
2026 (and a conditional projected release date of June 17, 2026). In his petition, petitioner
claims that the Bureau of Prisons (BOP) has failed to calculate and apply credits earned
under the First Step Act (FSA) and has failed to conduct a review for his transfer to
prerelease custody under the Second Chance Act (SCA). Respondent filed an answer to
1 Because petitioner was transferred to a different facility after filing his petition,
the Court has substituted his present custodian as the proper respondent.
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the petition, but petitioner did not file a traverse or reply brief by the Court’s ordered
deadline of December 22, 2025.
The Court concludes that the petition is subject to dismissal because of a failure to
exhaust. Petitioner was required to exhaust administrative remedies before seeking relief
from this Court. See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (“The
exhaustion of available administrative remedies is a prerequisite for § 2241 habeas relief .
. . .”). Petitioner concedes in his petition that he has not exhausted his administrative
remedies (a fact confirmed by evidence submitted by respondent). Petitioner argues,
however, that exhaustion would be futile because the BOP has adopted a uniform policy
and practice of denying earned credits and transfer to prerelease custody.
It is true that “[a] narrow exception to the exhaustion requirement applies if a
petitioner can demonstrate that exhaustion is futile.” See id. Petitioner has not shown such
futility, however. See Garner v. United States, 2021 WL 3856618, at *2 (D. Kan. Aug. 30,
2021) (Lungstrum, J.) (futility exception applies only in extraordinary circumstances, and
petitioner bears the burden to demonstrate futility of administrative review). He claims
that “[t]he BOP’s national policy forecloses credit application,” and that there is a
“systematic pattern of BOP’s noncompliance with FSA mandates.” Petitioner has not
identified or provided evidence of any particular BOP policy, however; nor has he shown
a pattern by the BOP of improperly calculating FSA credits.2 See id. at *3 (rejecting similar
2 Petitioner includes a case citation to support his statement that “[c]ourts in this
district have excused exhaustion in identical FSA disputes,” but the given Westlaw citation
does not refer to any case with the given case name, and a search does not reveal any case
Continued…
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argument for futility) (citing, inter alia, Garza, 596 F.3d at 1204); Roe v. Warden, FCI-
Leavenworth, 2025 WL 3652934, at *1 (D. Kan. Dec. 17, 2025) (Lungstrum, J.) (rejecting
the same argument).
Petitioner’s challenge to the specific calculation and application of his credits is
most appropriately addressed first by the BOP in the administrative process. Petitioner has
not provided a basis for excusing his failure to exhaust in this case, and the Court therefore
dismisses the petition on that basis.
IT IS THEREFORE ORDERED BY THE COURT THAT the petition for habeas
corpus under 28 U.S.C. § 2241 is hereby dismissed.
IT IS SO ORDERED.
Dated this 14th day of January, 2026, in Kansas City, Kansas.
/s/ John W. Lungstrum
Hon. John W. Lungstrum
United States District Judge
with that name in this district. Petitioner also includes two case citations to support his
statement that federal courts recognize a systemic pattern of BOP noncompliance, but one
cited case contains no such statement by the court (rather the court merely rejected a BOP
statutory interpretation), see Hare v. Ortiz, 2021 WL 391280 (D.N.J. Feb. 4, 2021), and
the other Westlaw citation is to a non-habeas case that does not match the given case name.
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