Bryan-Lever v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Anderson Bryan-Lever
v. Civil No. 23-cv-180-SE
Warden, FCI Berlin
Report and Recommendation
Anderson Bryan-Lever is a prisoner at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”). Proceeding pro se, Bryan-Lever brings a petition for a
writ of habeas corpus (doc. no. 1), pursuant to 28 U.S.C. §
2241, to have his sentence reduced by crediting the time he was
incarcerated in Bogata, Colombia, before he was extradited to
the United States, toward the sentence he is now serving. The
Warden moves for summary judgment on the grounds that this
district is not the proper venue for this action or,
alternatively, that Bryan-Lever did not exhaust administrative
remedies.1 The motion is referred for a Report and
Recommendation. See Fed. R. Civ. P. 72(b); LR 72.1.
Standard of Review
In a § 2241 action, “[s]ummary judgment is proper ‘if the
movant shows that there is no genuine dispute as to any material
1 The motion (doc. no. 5) was brought as a motion to dismiss
or, in the alternative as a “Motion to Dismiss or for Summary
Judgment.” The court previously construed the motion as seeking
summary judgment. See Aug. 28, 2023 Order.
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fact and the movant is entitled to judgment as a matter of
law.’” Yancey v. Warden, FMC Devens, No. 22-cv-11790-DLC, --- F.
Supp. 3d ---, 2024 U.S. Dist. LEXIS 4305, at *7, 2024 WL 100932,
at *3 (D. Mass. Jan. 9, 2024). No genuine dispute of material
fact is shown “if, based on the record, there is no factual
determination which a ‘rational factfinder’ could make as to the
existence or nonexistence of a fact that has the potential to
change the outcome of the suit.” Gibson Found., Inc. v. Norris,
88 F.4th 1, 5 (1st Cir. 2023) (citation omitted).
Background
Bryan-Lever was indicted on June 12, 2013, in the Middle
District of Florida, Tampa Division, on three drug charges.
United States v. Bryan-Lever, No. 13-cr-299-RAL-AEP, (M.D. Fl.
June 12, 2013) (ECF no. 1). He represents that he was arrested
on those charges in Bogata, Colombia in November 2013 and was
incarcerated there until he was extradited to Florida in
November 2015. In March 2016, he pleaded guilty to Count II of
the indictment, see id. (ECF no. 68), and on June 17, 2016, was
sentenced to 210 months of incarceration, see id. (ECF no. 77)
His sentence later was reduced to 135 months, and an amended
judgment was entered on August 15, 2019. See id. (ECF no. 85).
Bryan-Lever filed a request for a reduction in his sentence
with the Bureau of Prisons (“BOP”) Northeast Regional Office on
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September 20, 2022. His request was rejected on October 11,
2022, because he did not first file a request for relief at the
institutional level. The record shows no other filing in the
administrative process.
Instead, on January 18, 2023, while he was serving his
sentence at FCI Berlin, Bryan-Lever filed a motion in his
criminal case in the Middle District of Florida, seeking a
reduction of his sentence, based, in part, on the time he served
in Colombia before extradition. See id. (ECF no. 88). That court
denied his motion on February 2, 2023, stating “he must first
exhaust his administrative remedies with the Bureau of Prisons
before this Court can assume jurisdiction to address this
claim.” Id. (ECF no. 89). Ten months later, Bryan-Lever filed a
motion for a sentence reduction in the Middle District of
Florida based on Sentencing Guidelines Amendment 821. See id.
(ECF no. 90). That court held that he was not eligible. See id.
(ECF. no. 91).
While serving his sentence at FCI Berlin, Bryan-Lever filed
the § 2241 petition at issue here. He again seeks to have his
sentence reduced by the amount of time he was incarcerated in
Colombia before extradition.
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Discussion
The Warden moves for summary judgment on the grounds that:
(1) the court lacks jurisdiction, and (2) venue is not proper in
this district. Alternatively, the Warden contends that the
petition is barred because Bryan-Lever did not exhaust
administrative remedies. In response, Bryan-Lever contends that
the court has jurisdiction, and venue is proper in this
district, because he was incarcerated at FCI Berlin when he
filed the petition. He asserts that his failure to exhaust
administrative remedies was due to the lack of response by the
BOP and argues that the lack of exhaustion should be overlooked
because there is not enough time remaining in his sentence to
complete exhaustion. For the reasons that follow, the district
judge should find that the court has jurisdiction and venue is
proper in this district and should grant the Warden’s motion for
summary judgment due to Bryan-Lever’s failure to exhaust.
A. Jurisdiction and Venue
The Warden argues, under 28 U.S.C. §§ 2242 and 2243, that
because Bryan-Lever is no longer incarcerated in New Hampshire,
the court lacks jurisdiction over this matter and venue is not
proper in this district. As this court has previously held,
however, when a prisoner is moved out of the district after
filing a § 2241 petition in this court, the court retains
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jurisdiction to decide the petition as long as jurisdiction
existed when the petition was filed. See Fox v. Warden, FCI
Berlin, No. 21-cv-158-SE, 2022 U.S. Dist. LEXIS 66766, at *8-*9,
2022 WL 1085311, at *3 (D.N.H. Apr. 11, 2022); accord Jones v.
Warden, FCI Berlin, 2023 DNH 19, 2023 U.S. Dist. LEXIS 29800, at
*2023 WL 2186459, at *1-*2 (D.N.H. Feb. 22, 2023); see also
Yancey v. Warden, FMC Devens, No. 22-cv-11790-DLC, --- F. Supp.
3d ---, 2023 U.S. Dist. LEXIS 116684, at *6-*7, 2023 WL 4409852,
at *2-*3 (D. Mass. July 7, 2023) (citing cases). The Warden has
not shown that a different result pertains in this case.2
Specifically, the Warden does not dispute that the court
had jurisdiction over Bryan-Lever’s § 2241 petition when it was
filed and does not argue that venue in this district was
improper at that time. Therefore, the district judge should
conclude that the court has jurisdiction to decide the petition
and venue is proper in this district for that purpose.
B. Exhaustion of Administrative Remedies
Courts have created a common-law requirement that inmates
exhaust available administrative remedies before petitioning for
2 Although the Warden raises both jurisdiction and venue,
rather than jurisdiction alone, the analysis is the same. As the
concurring justices in Rumsfeld v. Padilla, 542 U.S. 426, 451
(2004), wrote, “the question of the proper location for a
habeas petition is best understood as a question of personal
jurisdiction or venue.”
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relief under § 2241.3 Rogers v. United States, 180 F.3d 349, 358
(1st Cir. 1999); Hernandez v. Warden FMC Devens, Civil Action
No. 23-11330-MPK, 2023 U.S. Dist. LEXIS 161096, at *8, 2023 WL
5939634, at *4 (D. Mass. Sept. 12, 2023) (citing Colorado-Cuero
v. Warden, FCI Berlin, Case No. 23-cv-295-JL, 2023 U.S. Dist.
LEXIS 123534, at *2, 2023 WL 4565472, at *1 (June 8, 2023), R&R
approved, 2023 U.S. Dist. LEXIS 122061, at *1, 2023 WL 4564379,
at *1 (D.N.H. July 17, 2023)). To complete administrative
exhaustion, an inmate must proceed through four steps, beginning
with an informal process in the institution, continuing with a
written request to the warden on a BP-9 form, followed by an
appeal to the Regional Director on a BP-10 form, and concluding
with an appeal to the BOP General Counsel on a BP-11 form. 28
C.F.R. §§ 542.13-15; see also Yancey, 2024 U.S. Dist. LEXIS
4305, at *13-*14, 2024 WL 100932, at *5.
Because failure to exhaust is an affirmative defense, for
purposes of summary judgment, the defendant must show that the
plaintiff failed to exhaust available administrative remedies.
3 The Warden attributes the exhaustion requirement for
§ 2241 petitions to the Prison Litigation Reform Act, 28 U.S.C.
§ 1997e(a). In the First Circuit, however, § 2241 exhaustion is
required by common law, not statute. See, e.g., Hernandez v.
Warden FMC Devens, Civil Action No. 23-11330-MPK, 2023 U.S.
Dist. LEXIS 161096, at *8, 2023 WL 5939634, at *4 (D. Mass.
Sept. 12, 2023)); Idada v. Spaulding, 456 F. Supp. 3d 294, 296
(D. Mass. 2020).
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Thomas v. Barnstable Cty. Corr. Facility, Civil Action No. 21-
cv-10398-ADB, 2023 U.S. Dist. LEXIS 125842, at *21, 2023 WL
4686052, at *9 (D. Mass. July 21, 2023), appeal filed sub nom.,
Thomas v. Montaldo, No. 23-1643 (1st Cir. Aug. 8, 2023). If that
is accomplished, the plaintiff must provide evidence “showing
that there is something in his particular case that made the
existing and generally available administrative remedies
effectively unavailable to him.” Id., 2023 U.S. Dist. LEXIS
125842, at *22, 2023 WL 4686052, at *9 (internal quotation marks
and citation omitted). That is, exhaustion is not required when,
among other things, the process “operates as a simple dead end,”
the process is “so opaque that it becomes, practically speaking,
incapable of use,” and although the process is ostensibly
available, the BOP’s actions “thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Blevins v. FCI Hazelton
Warden, 819 F. App’x 853, 856 (11th Cir. 2020) (quoting Ross v.
Blake, 578 U.S. 632, 644(2016)).
Bryan-Lever acknowledges that he did not exhaust the
administrative process. In fact, he only filed a request for a
reduction in his sentence with the Regional Director. Bryan-
Lever contends, however, that he has no obligation to exhaust
because he received no response from the Regional Director.
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The record, however, establishes that he did receive a
response from the Regional Director, which instructed him to
begin the administrative remedies process at the institutional
level, and that he ignored the Regional Director’s response.
Instead, Bryan-Lever sought sentence reduction by motion in the
sentencing court, which was denied for lack of administrative
exhaustion. Then, without addressing the need for administrative
exhaustion, Bryan-Lever filed the current § 2241 petition in
this court seeking the same relief. Thus, the record shows that
administrative remedies were available to Bryan-Lever, but he
failed to follow the required steps to exhaust them. In these
circumstances, the petition is barred for failure to exhaust
administrative remedies.
Bryan-Lever argues, however, that he should not be required
to exhaust administrative remedies now because he is due to be
released in July 2024. He contends that there is not sufficient
time to complete the exhaustion process before he is released.
In essence, Bryan-Lever contends that exhausting his
administrative remedies now would be futile.
“The common law exhaustion requirement is subject to
exception where exhaustion would be futile or inadequate to
prevent irreparable harm.” Colorado-Cuero, Case No. 23-cv-295-
JL, 2023 U.S. Dist. LEXIS 123534, at *3, 2023 WL 4565472, at *2
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(June 8, 2023), R&R approved, 2023 U.S. Dist. LEXIS 122061, at
*1, 2023 WL 4564379, at *1 (D.N.H. July 17, 2023)). A petitioner
does not show futility, however, simply because he waited too
long to begin the administrative exhaustion process. Id. Bryan-
Lever was instructed to begin the administrative process at the
institutional level on October 11, 2022, which was more than a
year and a half before his projected release date. His decision
to ignore that instruction and instead to file a motion in the
sentencing court and then a petition in this court does not
create “futility” which excuses him from the exhaustion
requirement. Therefore, he has not carried his burden to show
that he is entitled to an exception to the administrative
exhaustion requirement. See id.
Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion for summary judgment (doc. no. 5) and
dismiss the § 2241 petition, without prejudice to Bryan-Lever’s
ability to file a new § 2241 action once he exhausts his
administrative remedies. Any objections to this Report
and Recommendation must be filed within fourteen days of receipt
of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day
period may be extended upon motion.
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Only those issues raised in the objection to this Report
and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
any objections within the specified time waives the right to
appeal the district court's order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
February 12, 2024
cc: Anderson Bryan-Lever, pro se
Robert J. Rabuck, Esq.
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