Perry v. Christensen

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
DAMIEN PERRY,
Petitioner,
9:22-CV-1161
v. 	(BKS/ML)
D. CHRISTENSEN, Warden,
Respondent.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
DAMIEN PERRY
Pro se Petitioner
Fort Dix Federal Correctional Institution
Post Office Box 2000
Joint Base MDL, New Jersey 08640
(last known address)
OFFICE OF THE UNITED STATES 	RANSOM P. REYNOLDS, ESQ.
ATTORNEY FOR THE NORTHERN 	Assistant United States Attorney
DISTRICT OF NEW YORK
Counsel for Respondent
100 South Clinton Street
Syracuse, New York 13261
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
I. 	INTRODUCTION
Currently before the Court in this habeas corpus proceeding filed by the petitioner,
Damien Perry (“Petitioner”), pursuant to 28 U.S.C. § 2241, is a referral to the undersigned for a
report and recommendation from Chief United States District Judge Brenda K. Sannes regarding
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the Petition. (Dkt. No. 1.) In seeking a writ of habeas corpus, Petitioner argues that (1) he was
wrongfully denied credit for 1,462 days of presentence detention (from September 8, 2017,
through September 10, 2021), and (2) his rights were violated by the failure to accurately apply
First Step Act (“FSA”) credits to his sentence. (Dkt. No. 1 at 2, 6.)
Respondent filed a response, with exhibits, to the Petition. (Dkt. No. 9.) Respondent
seeks denial of the Petition arguing that (1) the Federal Bureau of Prisons (“BOP”) correctly
calculated Petitioner’s sentence, (2) Petitioner is not entitled to earned time credit under the FSA,
and (3) in the alternative, the Petition must be dismissed for failure to exhaust administrative
remedies. (Id.)
Petitioner filed a traverse and argued that before filing this motion for habeas corpus, he
exhausted all his administrative remedies. (Dkt. No. 12 at 2.) In addition, Petitioner argued that
he should receive credit for the time that he served awaiting trial and sentencing. (Id. at 3-5.)
On January 21, 2026, the undersigned issued a text order noting that a review of BOP.gov
reflects that Petitioner was released from custody as of July 16, 2025. (Dkt. No. 18.) The
undersigned directed that on or before January 28, 2026, Petitioner and Respondent file status
reports indicating whether an action controversy remains in this action and whether the relief
sought can no longer be given or is no longer needed. (Id.) In addition, Respondent was
directed to provide an update regarding why Petitioner was released on July 16, 2025, despite a
projected release date of December 30, 2029. (Id.)
On January 28, 2026, Respondent filed a status report that included a declaration of Jon
McEvoy, which was signed under penalty of perjury. (See generally Dkt. No. 22.) Mr. McEvoy
is employed by BOP as a management analyst. (Dkt. No. 22, Attach. 1 at ¶ 1.) Mr. McEvoy
declared that Petitioner was released pursuant to an Order of Clemency on July 16, 2025. (Id. at
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¶ 7.) Mr. McEvoy also declared that—although BOP maintains that Petitioner’s sentence
computation was correctly determined—he ran a hypothetical sentence calculation and if BOP
had given Petitioner presentence custody credit from September 8, 2017, through September 10,
2021, Petitioner’s release date would have been December 21, 2026. (Id. at ¶ 8.) Moreover, Mr.
McEvoy noted that assuming Petitioner had earned the maximum 12 months of FSA time credit,
and BOP applied them toward the release date that included presentence custody credit, then the
earliest Petitioner would have been eligible for release was December 21, 2025. (Id. at ¶ 9.) Mr.
McEvoy identified that December 21, 2025, is approximately five months later than Petitioner’s
release date via clemency, hence, Petitioner began his term of supervision earlier than he would
have if he was granted all the relief he sought in the Petition. (Id. at ¶ 10.)
To date, Petitioner has not responded to the undersigned’s text order of January 21, 2026.
(See generally docket sheet.)
II. 	BACKGROUND
On August 29, 2018, Petitioner was sentenced in 3:16-CR-0205 (VLB) (D. Conn.) to a
term of 92-months imprisonment for conspiracy to distribute and to possess with intent to
distribute controlled substances (“Connecticut Sentence”). (Dkt. No. 9, Attach. 1 at ¶ 8; Dkt. No.
9, Attach. 4 at 2.) On September 10, 2021, Petitioner was sentenced in 1:19-CR-0088 (JAW) (D.
Me.) to a term of 137-months imprisonment for possession with intent to distribute controlled
substances and aiding and abetting, and unlawful use of a communication facility and aiding and
abetting (“Maine Sentence”). (Dkt. No. 9, Attach. 1 at ¶ 9; Dkt. No. 9, Attach. 5 at 3.) The
Maine Sentence was to run concurrently with the Connecticut Sentence. (Dkt. No. 9, Attach. 1
at ¶ 9; Dkt. No. 9, Attach. 5 at 3.) Petitioner’s projected release date was December 30, 2029.
(Dkt. No. 9, Attach. 1 at ¶ 12; Dkt. No. 9, Attach. 7 at 2.)
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On March 18, 2022, Petitioner filed a Request for Administrative Remedy, challenging
his sentence calculation and seeking the application of prior custody credit. (Dkt. No. 9, Attach.
1 at ¶ 18; Dkt. No. 9, Attach. 11 at 2.) On March 28, 2022, Petitioner’s request was denied by
the Warden. (Dkt. No. 9, Attach. 1 at ¶ 18; Dkt. No. 9, Attach. 11 at 3.) Petitioner appealed via
his Regional Administrative Remedy Appeal on or about April 15, 2022. (Dkt. No. 9, Attach. 1
at ¶ 18; Dkt. No. 9, Attach. 11 at 2.) However, on April 18, 2022, Petitioner’s appeal was
rejected for not having a legible page. (Dkt. No. 9, Attach. 1 at ¶ 18; Dkt. No. 9, Attach. 10 at 4.)
Petitioner was informed that he could resubmit his appeal in proper form within 10 days. (Dkt.
No. 9, Attach. 1 at ¶ 18.)
On April 29, 2022, Petitioner refiled his Regional Administrative Remedy Appeal,
seeking review of his sentencing computation. (Dkt. No. 9, Attach. 1 at ¶ 18.) On July 11, 2022,
Petitioner’s appeal was denied when the Regional Director affirmed the sentence computation.
(Id.; Dkt. No. 9, Attach. 12 at 3.) On August 17, 2022, Petitioner attempted to file a Central
Office Administrative Remedy Appeal related to his sentence computation. (Dkt. No. 9, Attach.
1 at ¶ 18; Dkt. No. 9, Attach. 10 at 6.) On August 25, 2022, Petitioner’s appeal was rejected for
not including a copy of the Institutional Request and Response. (Dkt. No. 9, Attach. 1 at ¶ 18;
Dkt. No. 9, Attach. 10 at 6.) Petitioner was advised that he could resubmit his appeal in proper
form within 15 days. (Dkt. No. 9, Attach. 1 at ¶ 18; Dkt. No. 9, Attach. 10 at 6.) Petitioner did
not resubmit his appeal to the Central Office related to his sentence computation and he did not
ever raise the issue of his earned time credit calculation under FSA within the BOP’s
Administrative Remedy Program. (Dkt. No. 9, Attach. 1 at ¶ 18.)
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III. 	LEGAL STANDARDS
A. 	Legal Standard Governing Habeas Petitions
Habeas corpus relief is available where a prisoner is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “A § 2241
petition is generally the appropriate vehicle to raise claims arising from a prison official’s
computation of a prisoner’s sentence.” Clapper v. Langford, 186 F. Supp. 3d 235, 238
(N.D.N.Y. 2016) (Kahn, J.) (citing Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir. 2003)).
Therefore, § 2241 is the proper vehicle for Petitioner’s claims. See, e.g., Lugo v. Hudson, 13-
CV-0753, 2014 WL 11350815, at *4 (N.D.N.Y. June 16, 2014) (Suddaby, J.) (petitioner’s claims
“challenging the BOP’s calculation of his federal sentence . . . [were] properly brought pursuant
to section 2241.”), aff'd, 785 F.3d 852 (2d Cir. 2015).
It is well established that “[t]he Bureau of Prisons, and not the courts, determines when a
defendant’s sentence starts and whether the defendant should receive credit for any prior time
spent in custody.” United States v. Montez-Gaviria, 163 F.3d 697, 700-01 (2d Cir. 1998) (citing
United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir. 1998); Werber v. United States, 149 F.3d
172, 179 (2d Cir. 1998); United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997)); 18 U.S.C. §
3585); see also Thomas v. Warden FCI Ray Brook, 18-CV-0430, 2021 WL 4086139, at *4
(N.D.N.Y. June 28, 2021) (Dancks, M.J.) (“Although a prisoner may later seek judicial review, it
is the responsibility of the BOP, and not the courts, to determine the commencement of a federal
sentence and calculate any credit toward that sentence for time already served.”), report and
recommendation adopted, 2021 WL 4084306 (N.D.N.Y. Sept. 8, 2021) (D’Agostino, J.). Thus,
with respect to a § 2241 petition challenging the computation of credit on a federal sentence, a
district court has the power only to review a decision by the BOP, not to make credit
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determinations in the first instance. Wright v. Hudson, 12-CV-1638, 2015 WL 5971055, at *1
(N.D.N.Y. Oct. 14, 2015) (Singleton, J.).
B. 	Legal Standard Governing Challenges Pursuant to the First Step Act
The First Step Act “encourages federal inmates to participate in evidence-based
recidivism reduction programs” and “other productive activities” by “providing time credits to”
incarcerated persons “who successfully” participate in those programs. Rivera-Perez v. Stover,
757 F. Supp. 3d 204, 207 (D. Conn. 2024). Bureau of Prison staff complete an incarcerated
person’s initial risk and needs assessment within 28 days of their arrival at the designated prison.
Rivera-Perez, 757 F. Supp. 3d at 207. The BOP also reassesses incarcerated persons at each
regularly scheduled program review throughout the remainder of the incarcerated person’s
confinement. Id. An incarcerated person “earns either 10 or 15 days of” First Step Act “time
credits for every 30 days of successful participation in” evidence-based recidivism reduction
programs or productive activities. Id. at 208.
C. 	Legal Standard Governing Exhaustion of Administrative Remedies
A petitioner seeking relief pursuant to 28 U.S.C. § 2241 must exhaust their administrative
remedies. See Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001).
“This requires compliance with the BOP’s four-step Administrative Remedy Program.” Lallave
v. Martinez, 609 F. Supp. 3d 164, 179 (E.D.N.Y. 2022) (citing 28 C.F.R. § 542.10(a)).
To exhaust the BOP’s four-step Administrative Remedy Program a prisoner must
complete the following steps:
The first step of the prescribed process entails making an effort to obtain
an early resolution of the matter by raising the issue informally to staff. In
the event this avenue does not lead to a successful resolution, the inmate
next may submit a formal written [Administrative Remedy (“AR”)] to the
warden of the particular facility involved, utilizing a designated BP–9
form, within twenty days of the relevant event. If the AR is denied, an
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appeal may be taken to the appropriate BOP Regional Director within
twenty calendar days of the date of denial. As a fourth and final step, an
unfavorable decision from the Regional Director may be appealed to the
General Counsel’s office (also referred to as the “Central Office” [or
“CORC”]) within thirty days of the date on which the Regional Director
rejects the inmate’s appeal.
Barber v. Perdue, 11-CV-0127, 2012 WL 5996342, at *4 (N.D.N.Y. Nov. 9, 2012) (Peebles,
M.J.) (internal citations omitted), report and recommendation adopted, 2012 WL 5996866
(N.D.N.Y. Nov. 30, 2012) (Mordue, J.).1 In sum, “[n]o administrative appeal is fully exhausted
until the BOP’s Central Office reviews it.” Reynolds v. Warden of FCI Ray Brook, 16-CV-1264,
2019 WL 8064012, at *3 (N.D.N.Y. Aug. 5, 2019) (Dancks, M.J.), affirmed, 850 F. App’x 132
(2d Cir. 2021). The burden of demonstrating exhaustion rests with the petitioner. See Spring v.
Schult, 08-CV-0531, 2009 WL 3232183, at *1 (N.D.N.Y. Oct. 1, 2009) (Kahn, J.).
A federal inmate’s failure to exhaust the administrative remedies available to him prior to
commencing a Section 2241 action may “only be excused upon a showing of cause and
prejudice.” Carmona, 243 F.3d at 634. To demonstrate legal “cause,” a petitioner must establish
that “something external to the petitioner, something that cannot be fairly attributed to him,”
prevented the petitioner from fully exhausting his administrative remedies. Tineo v. United
States, 977 F. Supp. 245, 253 (S.D.N.Y. 1996) (quoting Coleman v. Thompson, 501 U.S. 722,
753 (1991)). Factors that constitute “cause” include “interference by officials that makes
compliance with procedural rules impractical.” Hinebaugh v. Wiley, 137 F. Supp. 2d 69, 75
(N.D.N.Y. 2001) (cleaned up) (Kahn, J.) (quoting Tineo, 977 F. Supp. at 253). General and
conclusory allegations will not be enough to establish cause; rather, a petitioner must plead
1 	The exhaustion provisions imposed by the Prisoner Litigation Reform Act (“PLRA”) do
not apply to habeas corpus Petitions. See Carmona, 243 F.3d at 634 (“[W]e note that although . .
. the P[LRA] . . . contains a statutory administrative exhaustion requirement, . . . the
requirements of the [PLRA] do not apply to habeas proceedings.”).
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specific facts. See Rosario v. Quay, 15-CV-0523, 2017 WL 337977, at *3 (D. Conn. Jan. 23,
2017). To establish prejudice, a petitioner must show “actual harm resulting from the alleged
[interference].” Hinebaugh, 137 F. Supp. 2d at 75.
IV. 	ANALYSIS
After carefully considering the matter, I recommend that the Petition be denied as moot.
“Article III, Section 2 of the United States Constitution limits the subject matter of the
federal courts to those cases which present a ‘case or controversy.’” Islam v. New York State Bd.
of Parole, 13-CV-0854, 2016 WL 3943668, at *2 (N.D.N.Y. June 2, 2016) (Dancks, M.J.)
(citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). Accordingly, “in order for there to be a valid
exercise of subject matter jurisdiction, a federal court must have before it an actual controversy
at all stages of review, not simply at the time it is filed.” In re Flanagan, 503 F.3d 171, 178 (2d
Cir. 2007). “The hallmark of a moot case or controversy is that the relief sought can no longer
be given or is no longer needed.” Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983).
Here, because Petitioner was granted clemency and released on July 16, 2025, he has
received the relief he requested. (Dkt. No. 22.) Petitioner has not raised any other grounds for
habeas relief and does not contend that he is currently being held in custody in violation of the
Constitution or any other federal law. (Dkt. Nos. 1, 12.) Accordingly, because the relief sought
can no longer be given, no live controversy remains. Thus, I recommend that Petitioner’s claim
for relief be denied as moot.
In the alternative, I recommend that the Petition be denied and dismissed for the reasons
stated in Respondent’s memorandum of law. (Dkt. No. 9 at 6-11.) The following is intended to
supplement—not supplant—those reasons.
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A. 	Calculation of Petitioner’s Sentence
In this case, BOP calculated Petitioner’s Maine Sentence beginning on September 10,
2021, the date that it was imposed. (Dkt. No. 9, Attach. 1 at ¶ 10.) The concurrent Connecticut
Sentence and Maine Sentence produced an aggregate sentence of 14 years, 5 months, and 12
days.2 (Id.; Dkt. No. 9, Attach. 7 at 5.)
Petitioner received presentence credit for (1) December 15, 2016, (2) May 7, 2017, and
(3) September 8, 2017, through August 28, 2018 (the day before imposition of his Connecticut
Sentence), because this time was not credited to another sentence. (Dkt. No. 9, Attach. 1 at ¶ 10;
Dkt. No. 9, Attach. 7 at 5.) Thus, Petitioner received prior custody credit of 357 days. (Dkt. No.
9, Attach. 1 at ¶ 10; Dkt. No. 9, Attach. 7 at 5.)
The expiration full term date is February 18, 2032. (Dkt. No. 9, Attach. 7 at 5.)
However, based on good time credit earned and good time credit that Petitioner is projected to
earn, his projected release date is December 30, 2029. (Id.)
To the extent that Petitioner argues that he should receive credit for August 29, 2018,
through September 9, 2021 (approximately 1,107 days), the time that he served on the
Connecticut Sentence before the imposition of the Maine Sentence, I reject that argument.
The law is clear that where an individual is serving time on a sentence and is then
sentenced on another crime, the time served on the prior sentence cannot be credited toward the
new sentence. See United States v. Fermin, 252 F.3d 102, 108 n.10 (2d Cir. 2001) (“The Bureau
of Prisons could not credit Fermin for the time he had already served because it was credited
2 	This is calculated by combining (1) the time that Petitioner was incarcerated pursuant to
his Connecticut Sentence (from August 29, 2018) before the imposition of his Maine Sentence
(on September 10, 2021), which equaled 3 years and 12 days, and (2) the 137-month Maine
Sentence. The total aggregate sentence is 14 years, 5 months, and 12 days. (Dkt. No. 1, Attach.
1 at 18, 22.)
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against another sentence.”). Indeed, 18 U.S.C. § 3585(b) “prohibits defendants from receiving
‘double credit for [their] detention time.’” Clapper v. Langford, 186 F. Supp. 3d 235, 239
(N.D.N.Y. 2016) (Kahn, J.) (quoting United States v. Wilson, 503 U.S.C. 329, 337 (1992))
(collecting cases); see Sarro v. Billingsley, 11-CV-9395, 2013 WL 120817, at *4 (S.D.N.Y. Jan.
10, 2013) (Ҥ 3585(b) does not authorize giving a credit on a federal sentence for any prison time
that has already been credited to another sentence, whether state or federal.”) (collecting cases).
Moreover, “under 18 U.S.C. § 3585(a), a federal sentence cannot commence prior to the
date on which it is imposed.” Lopez v. Terrell, 654 F.3d 176, 185 (2d Cir. 2011) (citing United
States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir. 1998)); see Greenough v. Hufford, 12-CV-8836,
2013 WL 4534997, at *1 (S.D.N.Y. Aug. 27, 2013) (“18 U.S.C. § 3585(a) . . . establishes that a
federal sentence begins only after that sentence is first pronounced.”). Hence, the earliest date
that Plaintiff’s Maine Sentence could have commenced is September 10, 2021, the date that it
was imposed.
As a result, I find that BOP correctly calculated Petitioner’s sentence and recommend that
his request to double count the time he served from August 29, 2018, until September 9, 2021, be
denied.
B. 	Earned Time Credit Pursuant to FSA
The FSA includes a list of 68 statutes, the violation of which renders an inmate ineligible
for FSA time credits. See 18 U.S.C. § 3632(d)(4)(D). Relevant to this action, 18 U.S.C. §
3632(d)(4)(D) provides, in relevant part:
Ineligible prisoners. – A prisoner is ineligible to receive time credits under
this paragraph if the prisoner is serving a sentence for a conviction under
any of the following provisions of law:
****
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(lxvi) Subparagraph (A)(vi) or (B)(vi) of section 401(b)(1) of the
Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(F) or
(2)(F) of section 1010(b) of the Controlled Substances Import and Export
Act (21 U.S.C. 960(b)), relating to manufacturing, distributing,
dispensing, or possessing with intent to manufacture, distribute, or
dispense, a mixture or substance containing a detectable amount of
[fentanyl], or any analogue thereof.
18 U.S.C. § 3632(d)(4)(D)(lxvi).
Here, Petitioner was convicted in the District of Maine under 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(vi). (Dkt. No. 9, Attach. 1 at ¶¶ 13-14; Dkt. No. 9, Attach. 5; Dkt. No. 9, Attach. 7 at
4.) The conduct underlying Petitioner’s conviction includes an incident on July 20, 2017, during
which Petitioner provided a package of narcotics containing 130.441 grams of fentanyl to three
other individuals. (Dkt. No. 9, Attach. 3 at ¶¶ 15, 51A.)
As a result, I find that Petitioner is statutorily disqualified from FSA eligibility pursuant
to 18 U.S.C. § 3632(d)(4)(D)(lxvi) and recommend that the Court deny the petition for habeas
relief on this basis.
C. 	Exhaustion of Administrative Remedies
In the alternative, I recommend that Petitioner’s habeas petition be denied because he
failed to exhaust his administrative remedies.
“A prisoner who seeks review of the Bureau of Prisons’ denial of his nunc pro tunc
designation request must first . . . exhaust his administrative remedies.” Henriquez v. United
States, 12-CV-5590, 2012 WL 6739422, at *3 (S.D.N.Y. July 16, 2012) (citing inter alia Setser
v. United States, 566 U.S. 231, 244 (2012) (stating that petitioner is free to challenge BOP’s time
credit determination first “through the Bureau’s Administrative Remedy Program . . . [a]nd if
that does not work, [through] . . . a writ of habeas corpus.”)). In addition, a prisoner seeking
review of BOP’s failure to accurately apply his FSA credits to his sentence must first exhaust his
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administrative remedies. See Mason v. Alatary, 23-CV-0193, 2024 WL 3950643, at *13-14
(N.D.N.Y. Aug. 27, 2024) (Kahn, J.).
To the extent that Petitioner argues that he has exhausted his administrative remedies, the
exhibits attached to the Petition (Dkt. No. 1), Respondent’s Response (Dkt. No. 9), and
Petitioner’s Traverse (Dkt. No. 12) do not support his assertion. Petitioner’s appeal to the
Central Office was rejected on August 25, 2022, for failing to include a copy of the Institutional
Request and Response. (Dkt. No. 9, Attach. 1 at ¶ 18; Dkt. No. 9, Attach. 10 at 6.) Petitioner
did not resubmit this appeal to comply with the exhaustion requirements and does not suggest
that he was denied the opportunity to do so. (Dkt. No. 9, Attach. 1 at ¶ 18; Dkt. No. 1, Attach. 1
at 3.) Because the administrative record shows that Petitioner did not complete his Central
Office Administrative Remedy Appeal, and Petitioner does not argue otherwise, the undersigned
finds that he has failed to satisfy the administrative exhaustion requirement. See Poindexter v.
United States, 24-CV-1258, 2025 WL 2781320, at *3 (S.D.N.Y. Sept. 30, 2025) (citing
Johansson v. Strada, 12-CV-5296, 2012 WL 6093534, at *3 (E.D.N.Y. Dec. 7, 2012) (finding
that the petitioner failed to exhaust administrative remedies where “the record indicates he did
not appeal the Warden’s unfavorable decision to the Regional Director, nor did he appeal to the
BOP’s general counsel”); Lane v. Zickefoose, 08-CV-0567, 2008 WL 5467824, at *2 (D. Conn.
Dec. 30, 2008) (similar)) (finding that where the record revealed that the petitioner did not
appeal the Warden’s decision to the Regional Director and the petitioner did not argue otherwise,
that he failed to exhaust the administrative exhaustion requirement). Moreover, Petitioner did
not raise the FSA Earned Time Credit issue in any administrative remedy. (Dkt. No. 9, Attach. 1
at ¶ 17; Dkt. No. 9, Attach. 10 at 3-6.)
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Therefore, Petitioner’s claims are barred unless his failure to exhaust is excused pursuant
to the “cause and prejudice” test. Mason v. Alatary, 23-CV-0193, 2024 WL 3950643, at *14
(N.D.N.Y. Aug. 27, 2024) (Kahn, J.); Green v. Christensen, 22-CV-1307, 2023 WL 436186, at
*5 (N.D.N.Y. July 6, 2023 (Sannes, C.J.) (quoting Barber, 2012 WL 5996342, at *5) (“The
Second Circuit has held that a petitioner may pursue a request for habeas corpus relief, including
pursuant to 28 U.S.C. § 2241, even where he has failed to exhaust administrative remedies prior
to filing the action in district court, only upon a showing of cause and prejudice.”).
Petitioner alleges that he “expressed [his] concerns verbally in regards to applying [his]
ETC credits under the First Step Act” after his counselor at FCI Ray Brook would not “afford
[him] with a BP 8 – Informal Resolution Form or with a BP 9 to formally grieve the issue.”
(Dkt. No. 1 at 7.) Notwithstanding his allegation that his counselor refused to provide him with a
BP-9, Petitioner alleges that he filed a BP-9 Administrative Remedy, which was never responded
to. (Dkt. No. 1, Attach. 1 at 3.) Petitioner alleges that his BP-9 was not responded to, so he filed
a BP-10 Administrative Remedy, which was denied. (Id.) Petitioner alleges that he then filed a
BP-11, which was denied because he failed to include a copy of the BP-9. (Id.)
To the extent that Petitioner’s argument is construed as asserting that the exhaustion
requirements should be waived because his counselor at FCI Ray Book refused to afford
Petitioner with a BP-8 or BP-9 form, I reject it as unpersuasive. Petitioner has failed to present
circumstances supporting waiver. “First, [P]etitioner’s unwavering conclusion that exhaustion
was impossible because of his inability to procure BOP forms, either himself or via his family, is
unpersuasive.” Green, 2023 WL 4364186, at *5. Petitioner “fails to provide any type of
evidence regarding the unsuccessful attempts he and his family made to procure said forms.”
Green, 2023 WL 4364186, at *5 (citing Zenquis v. Pullen, 22-CV-1151, 2023 WL 2931585, at
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*4-5 (D. Conn. Apr. 13, 2023) (emphasizing that “denial of grievance forms does not, in itself,
make administrative remedies unavailable,” yet finding petitioner sufficiently demonstrated, via
documentation memorializing repeated requests to staff, that their actions delaying the provision
of administrative grievance forms was sufficient to establish cause and prejudice to waive
exhaustion). Petitioner fails to identify the time, place, and frequency with which he was unable
to obtain “Administrative Remedy” forms from his counselor. (Dkt. No. 1 at 7.) Petitioner’s
conclusory allegations without any detail or evidence are insufficient to establish cause for his
failure to exhaust administrative remedies. But see Flores v. Derr, 23-CV-0183, 2023 WL
4236183, at *2 (D. Haw. June 28, 2023) (citing Dale v. Lappin, 376 F.3d 652, 656 (7th Cir.
2004); Miller v. Norris, 247 F.3d 736, 738, 740 (8th Cir. 2001); Untalan v. Derr, 23-CV-0091,
2023 WL 2868519, at *3 (D. Haw. Apr. 10, 2023); Sallas v. Derr, 23-CV-0084, 2023 WL
2794793, at *3 (D. Haw. Apr. 5, 2023)) (“Courts have waived the prudential exhaustion
requirement when a prison official has refused to provide an inmate with the form necessary to
file an administrative grievance, determining that the administrative process was unavailable.”).
Petitioner has failed to make the requisite showing of “cause and prejudice” that would
permit the Court to excuse his failure to exhaust administrative remedies.3 As a result, I
recommend that, in the alternative, Petitioner’s habeas Petition be denied and dismissed for
failure to exhaust his administrative remedies.
3 	Should the assigned District Judge disagree with this conclusion, the proper mechanism
for resolving issues of fact regarding whether a petitioner exhausted his administrative remedies
is to “obtain additional documentation and hold an evidentiary hearing.” Rosario-Santiago v.
Pliler, 21-CV-3202, 2022 WL 2991015, at *5 (S.D.N.Y. July 7, 2022).
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15
V. 	CERTIFICATE OF APPEALABILITY
To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner
must obtain from the court a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A);
see also Fed. R. App. P. 22(b)(1) (“[T]he applicant cannot take an appeal unless a circuit justice
or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”). In
the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the
denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may
issue only “if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a
“substantial showing” if “the issues are debatable among jurists of reason; . . . a court could
resolve the issues in a different manner; or . . . the questions are adequate to deserve
encouragement to proceed further.”4 Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)
(quotation marks omitted).
In this instance, I find that jurists of reason would not find it debatable as to whether the
petition in this matter is meritorious. Accordingly, I recommend against the issuance of a COA.
ACCORDINGLY, it is
RECOMMENDED that the Petition (Dkt. No. 1) be DENIED as moot and that a
certificate of appealability not be issued to Petitioner;5 and it is further
4 	A similar standard applies when a COA is sought to challenge the denial of a habeas
petition on a procedural basis. See Slack v. McDaniel, 529 U.S. 473, 478 (2000) (“[A] COA
should issue . . . if the prisoner 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.”).
5 	In the alternative the undersigned recommends that the Petition be denied and dismissed
because (1) BOP correctly calculated Petitioner’s sentence, (2) Petitioner is not entitled to earned
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16
ORDERED that the Clerk of the Court shall file a copy of this Report and
Recommendation on the parties, along with copies of the unpublished decisions cited herein in
accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)
(per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.6 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
Dated: February 4, 2026
Binghamton, New York
time credit under the FSA, and (3) in the alternative, Petitioner failed to exhaust administrative
remedies.
6 	If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
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Barber v. Perdue, Not Reported in F.Supp.2d (2012)
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2012 WL 5996342
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Edward BARBER, Petitioner,
v.
Russell PERDUE, Warden, 1 Respondent.
Civil Action No. 9:11–CV–0127 (NAM/DEP).
|
Nov. 9, 2012.
Attorneys and Law Firms
Edward Barber, Atlanta, GA, pro se.
Hon. Richard S. Hartunian, United States Attorney, N.D.N.Y.,
Charles E. Roberts, Esq., Assistant U.S. Attorney, Syracuse,
NY, for Defendant.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, United States Magistrate Judge.
*1 Pro se petitioner Edward Barber, a federal prison inmate
as a result of a drug and money laundering conviction, has
commenced this proceeding pursuant to 28 U.S.C. § 2241,
seeking habeas relief from this court. In his petition, Barber
challenges his transfer into FCI Ray Brook, a medium security
prison, and seeks to be returned to a Bureau of Prisons
(“BOP”) prison camp similar to that in which he was confined
prior to having been found guilty of possessing intoxicants,
in violation of prison disciplinary rules.
In answer to the petition, respondent argues that it is
procedurally defective based upon Barber's failure to
properly exhaust available administrative remedies before
commencing suit, and in any event fails to state a
cognizable constitutional or statutory claim warranting
habeas intervention. For the reasons set forth below, I
recommend that Barber's petition be dismissed based upon
his failure to satisfy his obligation to exhaust available
administrative remedies before commencing this proceeding,
and in any event, as lacking in merit.
I. BACKGROUND
Petitioner is serving a 120–month term of imprisonment
based upon a conviction entered in the District of Maryland
for conspiracy to distribute, and to possess with intent to
distribute, five kilograms or more of cocaine, in violation of
21 U.S.C. § 846, and conspiracy to commit money laundering,
in violation of 18 U.S.C. § 1956(h). Petition (Dkt. No. 1)
at p. 3 and Exh. A; Magnusson Decl. (Dkt. No. 4–2) ¶
5. Petitioner's projected release date, with anticipated good
conduct time credits, is August 31, 2015. Magnusson Decl.
(Dkt. No. 4–2) ¶ 5.
Petitioner began serving his federal sentence in a minimum
security level prison camp operated by the Bureau of Prisons
(“BOP”) in Schuykill, Pennsylvania, on March 20, 2007. 2
Petition (Dkt. No. 1) at p. 6. On July 20, 2007, however,
he was transferred into a low security correctional institution
located in Allenwood, Pennsylvania (“LSCI Allenwood”),
after being convicted of possessing intoxicants, in violation
of prison rules. Id.; see also Magnusson Decl. (Dkt. No. 4–
2) ¶ 7.
In June of 2010, Barber filed an Administrative Remedy
Report (“AR”), pursuant to the BOP's internal inmate
grievance program, challenging his transfer into LSCI
Allenwood and requesting that he be returned back into a
minimum security facility. 3 Petition (Dkt. No. 1) at p. 6;
Magnusson Decl. (Dkt. No. 4) ¶ 7 and Exh. C. On July
9, 2010, following the denial of that grievance, which was
designated as AR No. 597261, petitioner appealed the matter
to the BOP Regional Director. Petition (Dkt. No. 1) at p. 3
and Exh. E; Magnusson Decl. (Dkt. No. 4–2) ¶¶ 7–8 and
Exhs. C, D. In response to that appeal, the Regional Director
advised Barber on August 17, 2010, that his situation was
under review and that he was being considered for a transfer
into a minimum security facility. Petition (Dkt. No. 1) at p. 7
and Exh. F; Magnusson Decl. (Dkt. No. 4–2) ¶ 8 and Exh. D.
Barber's appeal was therefore deemed partially granted, and
he was advised of his right to appeal the determination to the
Office of General Counsel within thirty days of the date of
decision. Id. Petitioner, however, did not seek further review
of that decision. Petition (Dkt. No. 1) at p. 8; Magnusson Decl.
(Dkt. No. 4–2) ¶ 9.
*2 In September 2010, Barber was transferred from LSCI
Allenwood into FCI Ray Brook, and was assigned to the
facility's Work Cadre program. Petition (Dkt. No. 1) at p.
8. That program involves inmates designated to FCI Ray
Brook who are assigned to work in various maintenance
positions within the institution, including in the areas of
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groundskeeping, food and trust fund warehouse operations,
UNICOR warehouse operations, the garage motor pool, and
participating in general orderly details of the training center
and institution front lobby. 4 Porter Decl. (Dkt. No. 4–3) ¶ 5.
Work Cadre unit inmates perform much of their work outside
of the secure perimeter of FCI Ray Brook, and a vast majority
of inmates in the program are therefore assigned “OUT
Custody” status, with either a minimum or low security level
designation. 5 Id. Under BOP policies, a facility's security
level designation is used
to describe the structural variables and inmate-to-staff
ratio provided at the various types of Bureau institutions
(i.e., Minimum, Low, Medium, High). It also identifies
the institution type required to house inmates based upon
their histories, institutional adjustment, and Public Safety
Factors as well as the physical security of the institution
to include mobile patrols, gun towers, perimeter barriers,
housing, detection devices, inmate-to-ratio, and internal
security.
Id. at 2 n. 1; see also Johnson, 2010 WL 3468124, at
*1–2. 6 Of the thirty-nine inmates assigned to the Work
Cadre Unit at FCI Ray Brook, thirty-six of those, including
Barber, are designated as minimum security/OUT custody.
Porter Decl. (Dkt. No. 4–3) ¶¶ 5–6. At FCI Ray Brook,
Work Cadre inmates are housed together in a single unit,
although they can be interspersed with general population
inmates when taking meals, shopping at the commissary,
obtaining health services for mental health treatment, and
in other areas and programs. Petition (Dkt. No. 1) at pp. 7–
8.
Following his arrival at FCI Ray Brook, Barber challenged
his transfer by filing an informal resolution, claiming that the
transfer was inconsistent with his minimum security status.
Petitioner's Reply (Dkt. No. 6), Exh. J. Because this informal
measure did not resolve the issue, petitioner filed an AR,
designated as AR No. 617842. Id., Exh. K; Magnusson Decl.
(Dkt. No. 4–2) ¶ 10 and Exh. E. Following the denial of that
AR by the Warden at FCI Ray Brook, Barber appealed the
determination to the Regional Director on February 14, 2011,
reiterating his contentions and arguing that his placement in
the FCI Ray Brook Work Cadre program was inappropriate.
Petitioner's Reply (Dkt. No. 6), Exh. L; Magnusson Decl.
(Dkt. No. 4–2) ¶ 11 and Exh. F. That appeal was denied on
February 9, 2011, by BOP Regional Director J.L. Norwood,
and Barber was advised of his right to appeal that denial to
the BOP General Counsel within thirty days of the date of
response. Magnusson Decl. (Dkt. No. 4–2) ¶ 11 and Exh. F.
*3 Petitioner appealed the matter to the Office of General
Counsel on March 2, 2011. Petitioner's Reply (Dkt. No. 6),
Exh. M; Magnusson Decl. (Dkt. No. 4–2) ¶ 12 and Exh. B.
By notice dated May 10, 2011, that appeal was denied based
upon a finding that Barber was appropriately designated
to his current placement, consistent with the requirements
of BOP Program Statement 5100.08, which is entitled
“Inmate Security Designation and Custody Classification.”
Petitioner's Suppl. Reply (Dkt. No. 7) at pp. 2–3 and Exh. A. 7
II. PROCEDURAL HISTORY
Petitioner commenced this proceeding on February 4,
2011. Dkt. No. 1. In his petition, Barber challenges the
decision to transfer him into FCI Ray Brook, claiming
that it violated 18 U.S.C. § 3621(b) and BOP Program
Statement No. 5100.08, and resulted in a deprivation of
procedural due process and a denial of equal protection. Id.
The respondent has since submitted various documents in
opposition to the petition, asserting that petitioner's claims
are procedurally barred based upon his failure to exhaust
available administrative remedies before commencing this
proceeding, and additionally maintaining that, in any event,
the claims lack merit. 8 Dkt. Nos. 4, 5. Barber has since
submitted both a reply and a supplemental reply. Dkt. Nos.
6, 7.
Barber's petition, which is now fully briefed and ripe for
determination, has been referred to me for the issuance of a
report and recommendation, pursuant to 28 U.S.C. § 636(b)
(1)(B) and Northern District of New York Local Rule 72.3(c).
See Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Exhaustion of Remedies
In his petition, Barber challenges his designation to FCI
Ray Brook on several substantive grounds. In answer
to the petition, respondent argues that Barber's challenge
is procedurally barred based upon his failure to exhaust
available administrative remedies.
Barber's petition challenging his prison designation is
properly brought pursuant to 28 U.S.C. § 2241. See Jiminian
v. Nash, 245 F.3d 144, 146 (2d Cir.2001) (“A motion pursuant
to § 2241 generally challenges the execution of a federal
prisoner's sentence, including such matters as ... prison
transfers, [and] type of detention[.]”) (citing Chambers v.
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United States, 106 F.3d 472, 474–75 (2d Cir.1997)); see
also Carmona v. U.S. Bureau of Prisons, 243 F.3d 629,
632 (2d Cir.2001) (“A writ of habeas corpus under § 2241
is available to a federal prisoner who does not challenge
the legality of his sentence, but challenges instead its
execution subsequent to his conviction.”). Before instituting
such a habeas proceeding, however, a prison inmate must
first exhaust the remedies available through the BOP's
Administrative Remedies Program. Carmona, 243 F.3d at
630 (“We have held that federal prisoners must exhaust
their administrative remedies prior to filing a petition for
habeas relief.” (citing Guida v. Nelson, 603 F.2d 261, 262 (2d
Cir.1979)); see also Rogers v. United States, 180 F.3d 349,
357 (1st Cir.1999).
*4 Available to all federal prison inmates is an internal,
four-step administrative grievance procedure adopted by the
BOP for the stated purpose of “allow[ing] an inmate to seek
formal review of an issue relating to any aspect of his/her
own confinement.” 28 C.F.R. § 542.10(a); see also Macias
v. Zenk, 495 F.3d 37, 42 (2d Cir.2007). The first step of the
prescribed process entails making an effort to obtain an early
resolution of the matter by raising the issue informally to staff.
28 C.F.R. § 542.13(a); see also Johnson v. Testman, 380 F.3d
691, 693 (2d Cir.2004). In the event this avenue does not
lead to a successful resolution, the inmate next may submit
a formal written AR to the warden of the particular facility
involved, utilizing a designated BP–9 form, within twenty
days of the relevant event. 28 C.F.R. § 542.14(a). If the AR
is denied, an appeal may be taken to the appropriate BOP
Regional Director within twenty calendar days of the date
of denial. 28 C.F.R. § 542.15(a); see also Johnson, 380 F.3d
at 693. As a fourth and final step, an unfavorable decision
from the Regional Director may be appealed to the General
Counsel's office (also referred to as the “Central Office”)
within thirty days of the date on which the Regional Director
rejects the inmate's appeal. 28 C.F.R. § 542.15(a). Only
upon completion of all of the required steps in the process
does a federal inmate fully exhaust available administrative
remedies. Macias, 495 F.3d at 42; see also Johnson v. Rowley,
569 F.3d 40, 45 (2d Cir.2009); Strong v. Lapin, No. 90–CV–
3522, 2010 WL 276206, at *4 (E.D.N.Y.2010) (“Until the
BOP's Central Office considers the appeal, no administrative
remedy is considered to be fully exhausted.”).
Two separate ARs filed by Barber are implicated in this
proceeding. As was previously discussed, the first, AR No.
597261, was filed while Barber was confined in LSCI
Allenwood, and challenged his transfer into that facility.
Magnusson Decl. (Dkt. No. 4–2) ¶ 7 and Exh. C. The remedy
sought in that AR, inter alia, included a request that he be
transferred into another BOP facility, commensurate with his
security level designation. See id., Exh. C. That AR was
successful in large part, in that at the Regional Director level
Barber was advised that he was, in fact, being considered for
a transfer to a minimum security facility. Id., Exh. D.
Plaintiff's subsequent transfer into FCI Ray Brook generated
a second grievance, AR No. 617842, challenging that transfer
and his placement into the facility's Work Cadre program.
Magnusson Decl. (Dkt. No. 4–2) ¶ 11 and Exh. F. That
grievance represents petitioner's attempt to exhaust remedies
with regard to the claims now raised in this action. As
discussed above, this grievance was ultimately denied by the
Central Office on May 10, 2011. Petitioner's Suppl. Reply
(Dkt. No. 7), Exh. A. Because petitioner filed his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in
this court on February 4, 2011—more than two months prior
to receiving the Central Office's final determination of his
appeal—the court is confronted with whether, as respondent
contends, a petitioner who has filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241 has failed
to exhaust administrative remedies where he receives the
Central Office's final decision regarding his appeal after filing
his petition in federal court.
*5 Initially, the court notes that the exhaustion requirements
imposed under 42 U.S.C. § 1997e(a), a provision added as
part of the Prison Litigation Reform Act (“PLRA”), do not
apply to petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. See Carmona, 243 F.3d at 634 (“[W]e
note that although § 1997e(a) of the [PLRA] ... contains
a statutory administrative exhaustion requirement, we have
held, in the context of a § 2254 petition, that the requirements
of the [PLRA] do not apply to habeas proceedings ....
Doubtless the same rule should obtain in § 2241 cases as in
§ 2254 petitions.”). 9 Instead, the exhaustion requirements
applicable to 28 U.S.C. § 2241 petitions were created by
case law. See, e.g., Garza v. Davis, 596 F.3d 1198, 1203
(10th Cir.2010) (“The exhaustion of available administrative
remedies is a prerequisite for § 2241 habeas relief, although
we recognize that the statute itself does not expressly contain
such a requirement.”); Marti v. Nash, 227 F. App'x 148, 150
(3d Cir.2007) ( “Although there is no statutory exhaustion
requirement attached to § 2241, we have consistently applied
an exhaustion requirement to claims brought under § 2241.”)
(internal quotation marks omitted).
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The Second Circuit has held that a petitioner may pursue
a request for habeas corpus relief, including pursuant to
28 U.S.C. § 2241, even where he has failed to exhaust
administrative remedies prior to filing the action in district
court, only upon a showing of cause and prejudice. Carmona,
243 F.3d at 634 (“[T]he interests of judicial economy and
accuracy are served by requiring that, absent a showing of
cause and prejudice, appeals proceed in the first instance
through the federal agency review process.”). The Second
Circuit explained the reasoning behind this requirement in the
following manner:
Following the administrative
procedures could potentially obviate
the need for judicial review, or at a
minimum, develop the factual record
at the agency level at a time when the
disputed events are still relatively fresh
in witness' minds.... Administrative
autonomy is also served by requiring
that a federal prisoner justify his
failure to exhaust his intra-Bureau
remedies. When, however, legitimate
circumstances beyond the prisoner's
control preclude him from fully
pursuing his administrative remedies,
the standard we adopt excuses this
failure to exhaust.
Id.
In light of the fact that neither the Second Circuit nor any court
in this district has explicitly ruled on the circumstances the
court faces in this case, I recommend a finding that a petitioner
who receives a final administrative determination of his
grievance during the pendency of a related habeas petition in
federal court has not exhausted his administrative remedies,
unless he demonstrates cause and prejudice for prematurely
filing his petition in federal court. This recommendation is
in line with the Supreme Court's decision in Rhines v. Weber,
544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). In
that case, the Supreme Court held that a district court may
stay a mixed petition, where some of petitioner's claims were
unexhausted in state court, only when it “determines there was
good cause for the petitioner's failure to exhaust his claims
first in state court.” Rhines, 544 U.S. at 277, 125 S.Ct. at 1535.
In addition, this recommended finding aligns with the Second
Circuit's requirement that a district court excuse a petitioner's
failure to exhaust only upon a showing of cause and prejudice.
Carmona, 243 F.3d at 634. Finally, although one district court
has held that the Supreme Court's decision in Rhines “at least
implicitly [suggests] that subsequently exhausting available
remedies cures an initial lack of exhaustion in the habeas
context[,]” Mihailovich v. Berkebile, 06–CV–1603, 2007 WL
942091, at *6 (N.D.Tex. Mar.28, 2007), I read Rhines to
neither demand a district court to stay a petition under any
circumstances, nor preclude dismissing a petition for failure
to exhaust. See e.g., Seastrong v. Berkebile, 08–CV–1853–
M, 2008 WL 4999017, at *3 n. 2 (N.D.Tex. Nov.24, 2008)
(“While these [Supreme Court] cases implicitly indicate that
exhausting available remedies after filing a habeas action
may cure an initial lack of exhaustion, they do not preclude
dismissal of [an] action even if [a] petitioner has subsequently
exhausted his administrative remedies.”) (internal citation
omitted).
*6 Here, petitioner's papers demonstrate neither that he had
good cause for filing his habeas petition in federal court
prior to receiving the Central Office's final determination,
nor, even assuming cause existed, prejudice. Rather, in his
reply, petitioner admits that he “has yet to receive the Central
Office response[.]” Petitioner's Reply (Dkt. No. 6) at p.
3. Accordingly, I recommend that Barber's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 be
denied, without prejudice, for failing to exhaust his available
administrative remedies.
B. Merits of Petitioner's Claims
In his petition, Barber argues that in transferring him into
FCI Ray Brook, the BOP failed to adhere to statutory and
regulatory requirements, and further that the agency violated
his rights by depriving him of a vested liberty interest without
procedural due process. He additionally claims that prison
officials deprived him of equal protection as a result of his
transfer into FCI Ray Brook. In answer to these claims,
respondent asserts that Barber has no protected liberty interest
in being confined to any particular BOP facility, and therefore
cannot state a cognizable due process claim. Respondent also
maintains that his equal protection and statutory claims are
similarly deficient as a matter of law.
1. Due Process
To successfully state a claim under 42 U.S.C. § 1983 for
the denial of procedural due process, a party must show
that he or she (1) possessed an actual liberty interest, and
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(2) was deprived of that interest without being afforded
sufficient process. See Tellier v. Fields, 280 F.3d 69, 79–80
(2d Cir.2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d
Cir.1998); Bedoya v. Coughlin, 91 F.3d 349, 351–52 (2d
Cir.1996). In this instance, the facts set forth in Barber's
petition fail to establish the deprivation of a constitutionally
significant liberty interest.
By law, the BOP is vested with wide ranging discretion to
designate a facility in which a federal prison inmate is to be
held. 18 U.S.C. § 3621(b); see also Levine v. Apker, 455 F.3d
71, 80–81 (2d Cir.2006); Barden v. Koehane, 921 F.2d 476,
482 (3d Cir.1990). Addressing the question of placement of
a federal inmate, the governing statute provides, in relevant
part, as follows:
The Bureau of Prisons shall
designate the place of the prisoner's
imprisonment. The Bureau may
designate any available penal or
correctional facility ..., whether within
or without the judicial district in
which the person was convicted.... The
Bureau may at any time ..., direct the
transfer of a prisoner from one penal or
correctional facility to another.
18 U.S.C. § 3621(b).
It is well-established that an inmate has no protectable liberty
interest in being designated to a particular facility, even if
the facility into which a prisoner is transferred is undesirable
to the prisoner. Olim v. Wakinekona, 461 U.S. 238, 245–46,
103 S.Ct. 1741, 1745–46, 75 L.Ed.2d 813 (1983) (holding
that a prisoner has no constitutional right to be incarcerated
in any particular state); Meachum v. Fano, 427 U.S. 215,
224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (“The
Constitution does not ... guarantee that the convicted prisoner
will be placed in any particular prison.”). The United States
Supreme Court has long held that, “[a]s long as the conditions
or degree of confinement to which the prisoner is subjected
is within the sentence imposed upon him and is not otherwise
violative of the Constitution, the Due Process Clause does not
in itself subject an inmate's treatment by prison authorities
to judicial oversight.” Montanye v. Haymes, 427 U.S. 236,
242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). “If a the
prisoner can lawfully be held in the facility into which he has
been transferred, he cannot object to that transfer, even if the
transfer results in his being placed in a more restrictive or less
[desirable] facility.” Ali v. Gibson, 631 F.2d 1126, 1135 (3d
Cir.1980), accord, Hookey v. Lomas, No. 1:CV–08–022884,
2010 WL 1009946, at *6 (M.D.Pa. March 11, 2010).
*7 Since Barber cannot establish that his transfer into FCI
Ray Brook implicated a protecable liberty interest under the
Fourteenth Amendment, his procedural due process claim is
subject to dismissal as a matter of law. See Meachum, 427 U.S.
at 225, 96 S.Ct. at 2538 (“That life in one prison is much more
disagreeable than in another does not in itself signify that
Fourteenth Amendment liberty interest is implicated when a
prisoner is transferred to the institution with the more severe
rules.”).
2. Equal Protection
In his petition, Barber also contends that his transfer into FCI
Ray Brook resulted in the denial of equal protection, alleging
that, as a result of his transfer, he has been treated by the BOP
differently than other similarly situated inmates, including
those in other BOP facilities. Respondent also urges dismissal
of Barber's equal protection claim on the merits.
The Equal Protection Clause directs state actors to treat
similarly situated people alike. See City of Cleburne, Texas
v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249,
3254, 87 L.Ed.2d 313 (1985). To prove a violation of the
Equal Protection Clause, the petitioner must demonstrate that
he was treated differently than others similarly situated, as a
result of intentional or purposeful discrimination directed at
an identifiable or suspect class. See Giano v. Senkowski, 54
F.3d 1050, 1057 (2d Cir.1995) (citing, inter alia, McCleskey
v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d
262 (1987)). The petitioner must also show that the disparity
in treatment “cannot survive the appropriate level of scrutiny
which, in the prison setting, means that he must demonstrate
that his treatment was not ‘reasonably related to legitimate
penological interests.’ ” Phillips v. Girdich, 408 F.3d 124, 129
(2d Cir.2005) (quoting Shaw v. Murphy, 532 U.S. 223, 225,
121 S.Ct. 1475, 1478, 149 L.Ed.2d 420 (2001) (alterations
omitted)).
Petitioner's equal protection claim is based upon a class-of-
one paradigm. Barber does not allege that he is a member
of a group that received disparate treatment in comparison
to other similarly situated inmates. Rather, he argues that
he has been singled out for differential treatment from other
similarly situated inmates, citing as one example an inmate
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Barber v. Perdue, Not Reported in F.Supp.2d (2012)
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who was transferred from a satellite camp to LCSI Allenwood
for possessing intoxicants, and then later returned back to a
minimum security level institution. He also argues that, while
he is similarly situated to other inmates throughout the BOP
with minimum security levels, unlike him, they are not being
forced to participate in a Work Cadre program at a higher level
security institution.
A class-of-one equal protection claim is stated “where
the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is
no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073,
145 L.Ed.2d 1060 (2000). In this circuit, to succeed on such
a claim, a party must establish that
*8 (i) no rational person could regard
the circumstances of the plaintiff to
differ from those of a comparator
to a degree that would justify the
differential treatment on the basis of
a legitimate government policy; and
(ii) the similarity in circumstances and
difference in treatment are sufficient
to exclude the possibility that the
defendant acted on the basis of a
mistake.
Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir.2005),
overruled on other grounds by Appel v. Spiridon, 531 F.3d
138 (2d Cir.2008); see also Analytical Diagnostic Labs, Inc.
v. Kusel, 626 F.3d 135, 140 (2d Cir.2010).
The Second Circuit has noted that application of a class-
of-one equal protection standard will differ depending upon
whether the case involves discretionary decisionmaking,
or instead flows from non-discretionary action. Analytical
Diagnostic Labs, Inc., 626 F.3d at 141. As the Supreme Court
has observed, a class-of-one equal protection claim is readily
available when governmental action can be gauged by a clear
standard. Engquist v. Oregon Dep't of Agric., 553 U.S. 591,
602, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). In the case
of discretionary decisionmaking, the test to be applied is
significantly more relaxed, particularly in instances such as in
the employment arena, for example, where decisions are often
subjective and highly individualized. Analytical Diagnostic
Labs, Inc., 626 F.3d at 141 (citing Engquist, 553 U.S. at 604,
128 S.Ct. 2146, 170 L.Ed.2d 975 (2008)).
In this instance, there is no objective standard at issue. Instead,
this case falls in the discretionary category. Under Program
Statement 5100.08, the BOP is invested with considerable
latitude concerning assignment of inmates, subject only
to the statutory requirement that certain factors be taken
into consideration when making that significantly subjective
determination. Exercising that discretion, BOP decision-
makers placed Barber in a minimum security Work Cadre
program, fully consistent with his security level, and assigned
him a minimum security/OUT designation permitting him to
work in and around the prison where higher level security
inmates are not allowed in light of security concerns. Porter
Decl. (Dkt. No. 4–3) ¶¶ 5 and 6; Magnusson Decl. (Dkt.
No. 4–2) Exh. E at p. 34–38; Petitioner's Suppl. Reply
(Dkt. No. 7), Exh. A. His designation to FCI Ray Brook,
a medium-security prison, was apparently prompted by the
BOP's practice of attempting to designate an inmate to a
facility located within five hundred miles of his or her release
residence. 10 Petitioner's Suppl. Reply (Dkt. No. 7) Exh. A.
This matter is materially distinguishable from such cases as
Village of Willowbrook, which involved a property owner's
request for permission to connect to a municipal water supply
where she was required to grant a thirty-three foot easement
for that purpose whereas other property owners were required
to provide only fifteen foot easements. 528 U.S. at 565, 120
S.Ct. at 1075. The Supreme Court concluded that plaintiff's
allegations sufficed to state a class-of-one equal protection
claim since the difference in treatment alleged gave the
appearance of being irrational and wholly arbitrary. Id.
*9 Applying these principles to the instant case, there
is nothing in the record now before the court to suggest
that Barber was intentionally treated differently from other
similarly situated inmates for no rational reason or that
discriminatory animus motivated his assignment to FCI
Ray Brook. Accordingly, I recommend denial of his equal
protection habeas claim.
3. Statutory Violation
Section 3621(b), which governs the assignment of prisoners,
as well as transfers within the federal penal system, confers
broad discretion upon the BOP in that regard. 18 U.S.C. §
3621(b) (“The [BOP] may at any time ... direct a transfer of a
prisoner from one penal or correctional facility to another.”);
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see also Levine v. Apker, 455 F.3d 71, 80 (2d Cir.2006) (citing
cases). While conferring extensive discretion, the statute goes
on to list a series of factors to be considered in making that
determination, including
(1) the resources of the facility
contemplated; (2) the nature and
circumstances of the offense; (3)
the history and characteristics of the
prisoner; (4) any statement by the
court that imposed the sentence ...;
and (5) any pertinent policy statement
issued by the Sentencing Commission
pursuant to section 994(a)(2) of title
28.
18 U.S.C. § 3621(b); see also Levine, 455 F.3d at 81.
In this instance, there does not appear to be any dispute
involving Barber's security level. Consistent with BOP
Program Statement 5100.08, he has been designated as a
minimum security level, resulting in a possible custody level
of “Community” and “OUT.” In this instance, Barber is
designated as having “OUT” custody status. Designation of
the petitioner to FCI Ray Brook, with a minimal security level
and OUT custody designation, appears to be fully consistent
with both the requirements of section 3621 and BOP program
statement 5100.08. I therefore recommend a finding that
no statutory violation has been established with regard to
petitioner's classification or designation to FCI Ray Brook.
IV. SUMMARY AND RECOMMENDATION
By statute, the BOP is invested with considerable discretion
in assigning federal inmates to BOP facilities, subject to
consideration of various relevant factors which must inform
that determination. In carrying out its responsibilities for
designating inmates to federal facilities the BOP, with
its expertise, is undeniably faced with many constraints
and challenges. For this reason, courts typically afford
considerable deference to decisions made by that agency. It is
neither appropriate nor desirable for a court to micromanage
that decisionmaking process and serve as an appellate
body for disgruntled inmates to challenge their facility
designations, unless it can be shown that the decision made
in a particular case has run afoul of the protections afforded
by statute or the United States Constitution. See Meachum,
427 U.S. at 228–29, 96 S.Ct. 2532, 49 L.Ed.2d 451 (declining
to apply procedural protections of the Due Process Clause
to the daily functioning of state prisons and to “involve the
judiciary and issues and discretionary decisions that are not
the business of federal judges”).
*10 In this instance, the arguments asserted by the petitioner,
including that his due process and equal protection rights were
violated by his designation at FCI Ray Brook, lack merit.
Moreover, his claims in this matter are procedurally barred by
virtue of his failure to fully exhaust available administrative
remedies before commencing this proceeding. Accordingly,
it is hereby respectfully
RECOMMENDED that the petition in this matter be
DENIED and DISMISSED in all respects; and it is further
RECOMMENDED, based upon my finding that Barber
has not made a “substantial showing of the denial of a
constitutional right” pursuant to 28 U.S.C. § 2253(c)(2), that
a certificate of appealability not issue with respect to any of
the claims set forth in this petition.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report. Such
objections must be filed with the clerk of the court within
FOURTEEN days of service of this report. FAILURE
TO SO OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a
copy of this report and recommendation upon the parties in
accordance with this court's local rules.
All Citations
Not Reported in F.Supp.2d, 2012 WL 5996342
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Barber v. Perdue, Not Reported in F.Supp.2d (2012)
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Footnotes
1 In his petition, Barber named Deborah Schult, who, at the time Barber commenced this action, served as
the warden at the Ray Brook Federal Correctional Institution (“FCI Ray Brook”), as a respondent. Because
publically available information discloses that Russell Perdue became the warden at FCI Ray Brook in
February 2011, he is now the appropriately named respondent, and the clerk of the court is respectfully
directed to adjust court records to reflect this change.
2 The BOP has five security classification levels for its correctional facilities, including minimum, low, medium,
high, and administrative. BOP Program Statement 5100.08), Ch. 1 at p. 15. See Johnson v. Killian, No.
07 Civ. 6641(NRB), 2010 WL 3468124 at *1–3 (S.D.N.Y. Aug.23, 2010), vacated and remanded on other
grounds by 680 F.3d 234 (2d Cir.2012).
3 The BOP's administrative grievance process is more fully described further below in this report. See pp. 10–
11, post.
4 Standing alone, the requirement that prison inmates perform work-related functions while incarcerated does
not run afoul of the Thirteenth Amendment's prohibition against involuntary servitude. See Alexander v.
Schenk, 118 F.Supp. 298, 302 (N.D.N.Y.2000) (Kahn, J.) (holding that, even if the court was to find that
the plaintiff was required to work without any compensation while incarcerated, his claim would fail because
the Thirteenth Amendment “on its face, excludes ‘involuntary servitude imposed as a legal punishment for
a crime’ ”) (quoting U.S. Const. amend. XIII).
5 The BOP defines the “OUT Custody” classification as
[t]he second lowest custody level assigned to an inmate requiring the second lowest level of security
and staff supervision. An inmate who has OUT custody may be assigned to less secure housing and
may be eligible for work details outside the institution's secure perimeter with a minimum of two hour
intermittent staff supervision.
BOP Program Statement 5100.08; see Porter Decl. (Dkt. No. 4–3) at p. 2, n. 1.
6 Copies of all unreported decisions cited in this report and recommendation have been appended for the
convenience of the pro se petitioner. [Editor's Note: Attachments of Westlaw case copies deleted for online
display.]
7 Petitioner's supplemental reply, filed on June 6, 2011, is accompanied by a motion to supplement the record
in order to permit inclusion of the final denial of AR No. 617842. Dkt. No. 7. That motion is granted, and the
material accompanying the motion has been considered by the court.
8 In the response to Barber's petition, respondent does not address the statutory arguments raised.
9 See also Walker v. O'Brien, 216 F.3d 626, 634 (7th Cir.2000) (“[W]e conclude that cases properly brought
under §§ 2241 or 2254 as habeas corpus petitions are not subject to the PLRA.”); Blair–Bey v. Quick, 151
F.3d 1036, 1040 (D.C.Cir.1998) (“[W]e see no reason to make an exception from our general rule that the
PLRA does not apply to actions properly brought in habeas corpus.”); Davis v. Fechtel, 150 F.3d 486, 490
(5th Cir.1998) (“The PLRA ... does not apply to section 2241 proceedings.”); McIntosh v. United States Parole
Comm'n, 115 F.3d 809, 811–12 (10th Cir.1997) (holding that the PLRA does not apply to habeas petitions
filed pursuant to 28 U.S.C. § 2241); Colton v. Ashcroft, 299 F.Supp.2d 681, 687 (E.D.Ky.2004) (extending the
Sixth Circuit's finding that the PLRA does not apply to 28 U.S.C. §§ 2254 and 2255 proceedings by concluding
that the PLRA does also does not apply to 28 U.S.C § 2241).
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10 The controlling provision of Program Statement 5100.08 provides as follows:
The Bureau of Prisons attempts to place each inmate in an institution that is reasonably close to the
anticipated release area. Ordinarily, placement within 500 miles of a release area is to be considered
reasonable, regardless of whether there may be an institution closer to the inmate's release area. This
MGTV may also apply to inmates who are within 36 months of release.
BOP Program Statement P5100.08, ch. 5, at p. 3.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01161-BKS-ML Document 24 Filed 02/04/26 Page 25 of 144

Barber v. Perdue, Not Reported in F.Supp.2d (2012)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 5996866
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Edward BARBER, Petitioner,
v.
Russell PERDUE, Warden, 1 Respondent.
No. 9:11–CV–0127 (NAM/DEP).
|
Nov. 30, 2012.
Attorneys and Law Firms
Edward Barber, Atlanta U.S. Penitentiary, Atlanta, GA, pro
se.
Hon. Richard S. Hartunian, United States Attorney, N.D.N.Y.,
Charles E. Roberts, Esq., Assistant U.S. Attorney, of Counsel,
Syracuse, NY, for Respondent.
ORDER
NORMAN A. MORDUE, District Judge.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge David E. Peebles, duly
filed on the 9th day of November 2012. Following fourteen
(14) days from the service thereof, the Clerk has sent me
the file, including any and all objections filed by the parties
herein.
After careful review of all of the papers herein, including
the Magistrate Judge's ReportRecommendation, and no
objections submitted thereto, it is
ORDERED that:
1. The Report–Recommendation is hereby adopted in its
entirety.
2. The petition in this matter is denied and dismissed in all
respects.
3. The petitioner has failed to make a substantial showing of a
denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)
(2); accordingly, no certificate of appealability shall issue.
4. The Clerk of the Court shall serve a copy of this Order upon
all parties and the Magistrate Judge assigned to this case.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 5996866
Footnotes
1 In his petition, Barber named Deborah Schult, who, at the time Barber commenced this action, served as
the warden at the Ray Brook Federal Correctional Institution (“FCI Ray Brook”), as a respondent. Because
publically available information discloses that Russell Perdue became the warden at FCI Ray Brook in
February 2011, he is now the appropriately named respondent, and the clerk of the court is respectfully
directed to adjust court records to reflect this change.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01161-BKS-ML Document 24 Filed 02/04/26 Page 26 of 144

Flores v. Derr, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4236183
Only the Westlaw citation is currently available.
United States District Court, D. Hawai‘i.
Diana Estefan Rodriguez FLORES, Petitioner,
v.
Estela DERR, Warden, Respondent.
CIV. No. 23-00183 SOM-KJM
|
Signed June 28, 2023
Attorneys and Law Firms
Diana Estefan Rodriguez Flores, Honolulu, HI, Pro Se.
Dana A. Barbata, U.S. Attorney's Office-District of Hawaii,
Honolulu, HI, for Respondent.
ORDER DENYING DIANA ESTEFAN RODRIGUEZ
FLORES'S PETITION UNDER 28 U.S.C. § 2241
Susan Oki Mollway, United States District Judge
I. INTRODUCTION.
*1 Diana Estefan Rodriguez Flores (“Petitioner”) seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, naming
the warden of her facility, FDC Honolulu, as the Defendant.
See ECF No. 1. She seeks an order directing the Bureau
of Prisons (“BOP”) to apply Earned Time Credits (“ETCs”)
under the First Step Act (“FSA”) so that she is eligible for
early transfer to prerelease custody. See id.; see also First
Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The
BOP contends that Petitioner failed to exhaust administrative
remedies and that, alternatively, she is ineligible for ETCs
because of her fentanyl conviction. Concluding that Petitioner
is ineligible for ETCs, this court denies the § 2241 petition.
II. BACKGROUND.
Petitioner was sentenced to 68 months of imprisonment, 5
years of supervised release, and a $300 special assessment
following her guilty plea with respect to counts one, two,
and three of a Southern District of California Information
charging her with importing methamphetamine, heroin, and
N-Phenyl-N-[1-(2-phenylethly)-4-piperidinyl] (“fentanyl”).
See Judgment in a Criminal Case, Case Number 3: 19-
CR-04144-LAB, Doc. # 39, PageID # 114.
Petitioner, 23, is incarcerated at FDC Honolulu and
has a projected release date of July 27, 2024. See
https://www.bop.gov/inmateloc/ (input Register Number
87714-298) (last visited June 27, 2023). According to the
BOP, Petitioner becomes eligible for home detention on
January 27, 2024. See ECF No. 7-3, PageID # 35. Of course,
that does not mean that Petitioner will be released to home
detention on that date or at some other time. Absent any
credits, her full term date would be May 28, 2025. Id., PageID
# 36. She is subject to an immigration detainer. See id.,
PageID # 37.
On April 20, 2023, Petitioner filed this petition, seeking an
order directing the BOP to apply ETCs such that she would
be eligible for early transfer to prerelease custody. See ECF
No. 1. Petitioner concedes that she did not administratively
exhaust her claim, but argues that she should be relieved of the
exhaustion requirement because she attempted to obtain the
proper form from the BOP but was not given it because she
is subject to an immigration detainer. See ECF No. 9, PageID
# 41.
III. ANALYSIS.
Section 2241 enables those in custody to “challenge
the manner, location, or conditions of [their] sentence's
execution.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th
Cir. 2000). It is a proper vehicle for challenging the BOP's
calculation of an inmate's statutory release date. See, e.g.,
Keegan v. Derr, No. CV–22-00089, 2023 WL 2403941 (D.
Haw. Mar. 8, 2023) (granting in part a § 2241 petitioner's
request for recalculation of his statutory release date); Walsh v.
Boncher, 2023 WL 363591, at *2 (D. Mass. Jan. 23, 2023) (“a
petitioner may challenge computation of a prisoner's sentence
by prison officials via a section 2241 petition” (quotation
marks omitted)).
There is no statutory exhaustion requirement in § 2241.
See Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012).
However, “[a]s a prudential matter, courts require that habeas
petitioners exhaust all available judicial and administrative
remedies before seeking relief under § 2241.” See id.
Exhaustion is not a jurisdictional prerequisite and courts are
able to waive it. Ward v. Chavez, 678 F.3d 1042, 1045 (9th
Cir. 2012). This court therefore has discretion to address the
merits of an unexhausted § 2241 petition in the interest of
justice. See Cuevas-Diaz v. Ashcroft, 37 F. App'x 935, 940 (9th
Cir. 2002). Futility, irreparable harm, and the unavailability of
administrative remedies are legitimate bases for waiving the
exhaustion requirement. See Sapp v. Kimbrell, 623 F.3d 813,
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Flores v. Derr, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
822 (9th Cir. 2010); Laing v. Ashcroft, 370 F.3d 994, 1000
(9th Cir. 2004).
*2 Petitioner concedes that she failed to exhaust her
administrative remedies before filing this petition. See ECF
No. 9, PageID # 41. She argues that she should be excused
from the prudential exhaustion requirement because she
attempted to get the proper prison administrative remedies
form, but was not provided it. According to Petitioner, she
was told that her submission of such a form would have been
futile because she was ineligible for the relief she wanted
given her immigration detainer. Id. Courts have waived the
prudential exhaustion requirement when a prison official has
refused to provide an inmate with the form necessary to file an
administrative grievance, determining that the administrative
process was unavailable. See Dale v. Lappin, 376 F.3d 652,
656 (7th Cir. 2004); Miller v. Norris, 247 F.3d 736, 738, 740
(8th Cir. 2001); Untalan v. Derr, 2023 WL 2868519, at *3 (D.
Haw. Apr. 10, 2023); Sallas v. Derr, 2023 WL 2794793, at *3
(D. Haw. Apr. 5, 2023).
Rather than holding an evidentiary hearing to determine
whether the court should waive the prudential exhaustion
requirement because a prison official allegedly made the
prison remedies unavailable, the court denies the matter on
the merits, as the exhaustion requirement is not jurisdictional.
Under 18 U.S.C. § 3632(D)(4)(lxviii), prisoners are ineligible
to receive ETCs for convictions with respect to importing “a
mixture or substance containing a detectable amount of N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, or
any analogue thereof.” Petitioner was convicted of importing
N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide,
making her ineligible for the requested ETCs. Thus, Petitioner
is incorrect in arguing that time credits should be applied and
that she should be released early to prerelease custody on
September 26, 2023. As shown in the record, she is ineligible
for ETCs. See ECF No. 7-4, PageID # 39.
Petitioner additionally appears to be arguing that the BOP is
refusing to provide her with ETCs because she is subject to an
immigration detainer. The court need not rule with respect to
that argument because Petitioner is ineligible for ETCs given
her fentanyl conviction.
IV. CONCLUSION.
The court denies the petition brought under 28 U.S.C. § 2241.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 4236183
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01161-BKS-ML Document 24 Filed 02/04/26 Page 28 of 144

Green v. Christensen, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4364186
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael Anthony GREEN, Petitioner,
v.
D. CHRISTENSEN, Warden, Respondent.
9:
22
-
CV
-
1307
(BKS)
|
Signed July 5, 2023
|
Filed July 6, 2023
Attorneys and Law Firms
MICHAEL ANTHONY GREEN, Petitioner pro se,
47108-039, Ray Brook Federal Correctional Institution, P.O.
Box 900, Ray Brook, NY 12977.
HON. CARLA B. FREEDMAN, United States Attorney for
the Northern District of New York, RANSOM REYNOLDS,
III, ESQ., Ass't United States Attorney, 100 South Clinton
Street, P.O. Box 7198, Syracuse, New York 13261.
DECISION and ORDER
BRENDA K. SANNES, Chief United States District Judge
I. INTRODUCTION
*1 Petitioner Michael Green seeks federal habeas corpus
relief pursuant to 28 U.S.C. § 2241. Dkt. No. 1, Petition
(“Pet.”); Dkt. No. 1-1, Memorandum of Law in Support of the
Petition. Respondent opposed the petition and filed relevant
records in support thereof. Dkt. No. 12, Memorandum of Law
in Opposition (“Resp. Memo.”); Dkt. No. 12-1, Declaration
of John McEvoy (“McEvoy Decl.”); Dkt. No. 12-2–12-12,
Exhibits. Petitioner then filed a reply. Dkt. No. 16, Traverse.
For the reasons outlined below, the petition should be denied
and dismissed.
II. RELEVANT BACKGROUND 1
A. State Criminal Conviction and Sentence
In 2011, petitioner was convicted, pursuant to a guilty plea,
of one count of armed robbery, and sentenced by the Third
Judicial Circuit, in Wayne County, Michigan, to an 8- to
20-year term of imprisonment. McEvoy Decl. ¶¶ 5-6; Dkt.
No. 12-3 at 2 (Judgment of Sentence and Commitment to
Michigan Department of Corrections (“DOCS”) form).
On May 8, 2019, petitioner was paroled from the State of
Michigan DOCS custody to the exclusive custody of the
federal government via the United States (“US”) Marshals.
McEvoy ¶ 11; Dkt. No. 12-8 at 2 (Michigan Parole Board
Order).
B. Federal Criminal Conviction and Sentence
On April 4, 2012, while serving his state sentence in the
Michigan DOCS, petitioner was charged with two counts
of Robbery Affecting Interstate Commerce, in violation of
18 U.S.C. § 1951, and two counts of Using or Carrying a
Firearm During a Federal Crime, in violation of 18 U.S.C.
§ 924(c). United States v. Green et al., No. 2:12-CR-20218
(E.D. Mi.) (“Green I”), Dkt. No. 1, Indictment; accord Dkt.
No. 12-2 at 5 (indicating the federal charges which petitioner
was charged with violating). On April 25, 2012, petitioner
was released to the US Marshals, on a writ of habeas corpus ad
prosequendum, for an appearance in the United States District
Court for the Eastern District of Michigan. McEvoy Decl. ¶ 7;
Dkt. No. 12-2 at 5 (“On April 12, 2012, a writ ... was issued.”);
Green I, Dkt. No. 2, Order with Petition. This was the first of
five such writs, whereupon petitioner was placed in custody
of the US Marshals, for appearances in federal court related to
the criminal charges in Green I, and then returned to Michigan
State DOCS custody. McEvoy Decl. ¶ 7; Dkt. No. 12-2 at 3,
5 (identifying that petitioner was “[o]n a writ ... from April
25, 2012, to June 1, 2012, and from July 23, 2012, to July 24,
2012,” for two appearances before the magistrate judge and
one before the district judge); accord Green I, Dkt. Nos. 28,
30, 34 & 79, Orders with Petition (dated June 21, 2012; July
12, 2012; July 24, 2012; and April 11, 2013, respectively).
On April 11, 2013, petitioner was sentenced by the United
States District Court for the Eastern District of Michigan to
a total term of 471 months’ incarceration. McEvoy ¶ 8; Dkt.
No. 12-5 at 4. Specifically, petitioner received an 87-month
term of imprisonment for two counts of Robbery Affecting
Interstate Commerce, to be served concurrent with each other
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Green v. Christensen, Not Reported in Fed. Supp. (2023)
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and the state conviction/charges but consecutive to the other
two counts; 84 months for the first count of Using or Carrying
a Firearm During a Federal Crime of Violence which was
to run consecutive to all other counts and the state charges/
convictions; and 300 months for the second count of Using or
Carrying a Firearm During a Federal Crime of Violence to run
consecutive to all other counts and state charges/convictions.
McEvoy ¶ 8; Dkt. No. 12-5 at 2-4 (Judgment in a Criminal
Case from the Eastern District of Michigan). 2
*2 On October 3, 2014, petitioner received an amended
judgment. McEvoy ¶ 9; Dkt. No. 12-6. 3 The judgment,
citing Federal Rule of Criminal Procedure 35(b), was
amended to accommodate a “Reduction of Sentence for
Changed Circumstances[.]” McEvoy ¶ 9; Dkt. No. 12-6 at
2. Accordingly, petitioner's imprisonment now totaled “120
months to run consecutive to his undischarged term of
imprisonment in [the] State of Michigan case[.]” McEvoy ¶
9; Dkt. No. 12-6 at 4.
On October 15, 2013, petitioner received a second amended
judgment. McEvoy ¶ 10; Dkt. No. 12-7. 4 The sentence was
amended to “[c]orrect[ ] ... [a c]lerical [m]istake ... [and]
reflect the correct term of incarceration.” Dkt. No. 12-7 at
2. The total term of imprisonment was now “180 months
to run consecutive to [petitioner's] undischarged term of
imprisonment in [the] State of Michigan case[.]” McEvoy ¶
10; Dkt. No. 12-7 at 4.
As previously stated, on May 8, 2019, petitioner was paroled
from state custody and received into federal custody. McEvoy
¶ 11; Dkt. No. 12-8 at 2 (Michigan Parole Board Order).
Accordingly, “[p]etitioner's 180-month sentence [was] ...
calculated to begin on May 8, 2019, the date he was paroled
from his State Sentence, and will conclude on March 15,
2032, upon reaching his BOP Good Conduct Time Release
Date.” McEvoy ¶ 15; see also Dkt. No. 12-11 at 2-3 (noting
projected release date).
III. THE PETITION
Petitioner challenges the Bureau of Prison's (“BOP”) decision
to deny him 2,228 days of credit toward his federal sentence
computation for his custody in the Michigan DOCS. Pet. at
2, 5-6; Dkt. No. 1-1 at 1. Petitioner argues that he is entitled
to federal habeas relief because his Due Process rights were
violated. Dkt. No. 1-1 at 2. Liberally construing the Petition
and Traverse, it appears that petitioner generally argues that
the BOP erred in failing to credit petitioner's federal sentence
with the time he spent in state custody. Id. at 8-9. Further,
petitioner specifically contends that the BOP erred by failing
to grant petitioner's motion for a nunc pro tunc designation.
Id. at 3-10. Petitioner seeks recalculation of his jail time,
specifically requesting the inclusion and application of 2,228
days credit from his detention in the Michigan DOCS. Pet.
at 7.
IV. DISCUSSION
Habeas corpus relief is available if a prisoner is “in custody in
violation of the Constitution or laws or treaties of the United
States[.]” 28 U.S.C. § 2241(c)(3). A petition is properly
brought pursuant to 28 U.S.C. § 2241 where a federal prisoner
challenges the execution of his or her sentence, rather than its
imposition. See Adams v. United States, 372 F.3d 132, 134-35
(2d Cir. 2004); Jiminian v. Nash, 245 F.3d 144, 146-47 (2d
Cir. 2001). Execution of a sentence includes, among other
things, the computation of the sentence; thus, a § 2241 petition
is the proper means to challenge said computation. Adams,
372 F.3d at 135 (citing Nash, 245 F.3d at 146); see also
Cook v. N.Y.S. Div. of Parole, 321 F.3d 274, 278 (2d Cir.
2003) (explaining that a petitioner can use 2241 to challenge a
federal official's computation of a sentence, parole decisions,
or prison disciplinary actions). Petitions filed under section
2241 must name the petitioner's warden as respondent and be
filed in the district of the petitioner's confinement. 28 U.S.C. §
2241(a); Rumsfeld v. Padilla, 542 U.S. 426, 435, 447 (2004).
*3 Here, petitioner is incarcerated at Ray Book, in the
Northern District of New York, and challenges the amount
of detention credit the BOP awarded him. Accordingly, the §
2241 petition is the appropriate procedural vehicle to address
petitioner's challenge to the execution of his sentence. Adams,
372 F.3d at 135. Further, petitioner is correctly making this
challenge within the district in which he is confined. 28
U.S.C. § 2241(a).
1. Exhaustion
A petitioner seeking relief pursuant to § 2241 must exhaust
his or her administrative remedies. Carmona v. United States
Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); accord
Lallave v. Martinez, 609 F. Supp. 3d 164, 179 (E.D.N.Y.
2022). “This requires compliance with the BOP's four-step
Administrative Remedy Program.” Lallave, 609 F. Supp. 3d
at 179 (citing 28 C.F.R. § 542.10(a)).
This Court has previously outlined how exhaustion must
occur:
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Available to all federal prison inmates is an internal, four-
step administrative grievance procedure adopted by the
BOP for the stated purpose of “allow[ing] an inmate to
seek formal review of an issue relating to any aspect
of his/her own confinement.” ... The first step of the
prescribed process entails making an effort to obtain an
early resolution of the matter by raising the issue informally
to staff.... In the event this avenue does not lead to a
successful resolution, the inmate next may submit a formal
written [Administrative Remedy (“AR”)] to the warden of
the particular facility involved, utilizing a designated BP–
9 form, within twenty days of the relevant event.... If the
AR is denied, an appeal may be taken to the appropriate
BOP Regional Director within twenty calendar days of the
date of denial.... As a fourth and final step, an unfavorable
decision from the Regional Director may be appealed to the
General Counsel's office (also referred to as the “Central
Office” [or “CORC”]) within thirty days of the date on
which the Regional Director rejects the inmate's appeal.
Barber v. Perdue, No. 9:11-CV-0127 (NAM/DEP), 2012 WL
5996342, at *4 (N.D.N.Y. Nov. 9, 2012) (citing cases and
28 C.F.R. §§ 542.10(a), 542.13(a), 542.14(a), & 542.15(a))
(internal citations omitted). 5 In sum, “[u]ntil the BOP's
Central Office considers the appeal, no administrative remedy
is considered to be fully exhausted.” Strong v. Lappin, No.
1:09-CV-3522, 2010 WL 276206, at *4 (E.D.N.Y. Jan. 15,
2010); accord, Barber, 2012 WL 5996342, at *4.
“A prisoner who seeks review of the Bureau of Prisons’ denial
of his nunc pro tunc designation request must first ... exhaust
his administrative remedies.” Henriquez v. United States, No.
1:12-CV-5590, 2012 WL 6739422, at *3 (S.D.N.Y. July 16,
2012) (citing inter alia Setser v. United States, 566 U.S.
231, 244 (2012) (stating that petitioner is free to challenge
BOP's time credit determination first “through the Bureau's
Administrative Remedy Program ... [a]nd if that does not
work, [through] ... a writ of habeas corpus.”)).
Here, petitioner represents that he properly exhausted his
administrative remedies. Dkt. No. 1-1 at 2. Specifically,
“[p]etitioner asserts, that he has filed BP 8, BP 9, BP 10, as
well as BP 11 [forms; h]owever, because he has transferred
several different times, his property has inadvertently been
lost and/or misplaced[.]” Id. Accordingly, petitioner could
not include documentary proof of the exhaustion of his
administrative remedies with the instant pleading. Id.
*4 Respondent states that “[w]hile [p]etitioner has utilized
the BOP's Administrative Remedy Program, to include filing
multiple remedy submissions at all three levels and [an]
attempt to raise the issue of his sentence calculation at
the Institutional level, he has failed to properly raise this
issue at any level and thus failed to fully exhaust this
issue with the BOP's Central Office.” McEvoy ¶ 18. 6
Specifically, petitioner attempted to file two administrative
remedy submissions about his sentence computation at the
institutional level in 2020; however, both were rejected for
being incomplete and neither was re-filed. McEvoy ¶¶ 19-20;
Dkt. No. 12-12 at 3 (showing two entries, with different
remedy request numbers and alphabetic designations of “F”
for submission to the local facility, indicating that the first
administrative remedy submission, filed on December 14,
2020, was rejected for being incomplete because it failed
to include the required Response and the second, filed on
December 17, 2020, was not properly dated).
Further, petitioner filed four additional administrative remedy
submissions, all sharing the same identification number and
related to his “DHO Appeal,” while incarcerated at Ray Brook
on October 28, 2021 (to the Regional Office); November
17, 2021 (to the Regional Office); February 9, 2022 (to the
Office of General Counsel); and July 1, 2022 (to the Office
of General Counsel), respectively. McEvoy ¶ 21; Dkt. No.
12-12 at 4-5. None of these attempts at the administrative
remedy system “included an attempt to re-file on [petitioner's]
sentence calculation [claim].” McEvoy ¶ 21.
Petitioner's first challenge to his “DHO Appeal,” sent to the
Regional Office, was rejected the same day because petitioner
failed to “file in the region [in which he was] housed.” Dkt.
No. 12-12 at 4. Petitioner's resubmission to the Regional level
was denied on December 15, 2021. Id. Petitioner's then filed
an appeal with CORC, which was rejected on December 15,
2021. Id. at 5. However, petitioner was given the opportunity
to resubmit the appeal if it was modified “to include no more
than one continuous page (Rejection Status Reason “CPG”),”
James v. Rios, No. 1:12-CV-0008, 2012 WL 2912249, at *2
(E.D. Cal. July 16, 2012), and “in proper form [sent] within
15 days of the date of the rejection notice [(Rejection Status
Reason “RSA”)],” Williams v. Wilcox, No. 1:13-CV-3249,
2014 WL 12825230, at *3 (D. Colo. Oct. 28, 2014). Dkt.
No. 12-12 at 5 (indicating the rejection status reasons were
“CPG” and “RSA”). Petitioner's fourth challenge regarding
his “DHO Appeal” was denied by CORC on September 12,
2022. Id. 7
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*5 Despite petitioner's assertions, he has not properly
exhausted his administrative remedies because he has not
utilized all four steps of the Administrative Review Process
for his sentence computation/time credit claim. McEvoy ¶¶
18-21. The Administrative Remedy Generalized Retrieval
report partially supports petitioner's representations that he
engaged in the Administrative Remedy program because
it corroborates that he filed six different Administrative
Review submissions during the eighteen-month period from
December of 2020 through May of 2022, two of which
challenged petitioner's sentence computation/time credit.
Further, the Administrative Generalized Retrieval Report
demonstrated that petitioner filed forms seeking relief at each
level of the Administrate Remedy process. See Dkt. No. 12-12
at 3-5 (indicating that the challenges to the “Time-Sentence
Calculation”/“Jail Credit” were filed at the local institutional
level whereas the challenges to the “DHO Appeal” were
filed at the Regional and General Counsel level). Therefore,
petitioner was aware of all of the different tiers which existed
to provide him with administrative relief.
However, the report does not support petitioner's conclusions
that he filed all of the necessary paperwork to appeal his
complaint about his time computation/jail credit from the
local facility level to the BOP's Office of General Counsel.
In fact, the report shows that petitioner's sentence calculation/
time credit claim never advanced through, let alone past, the
first level of local facility administrative review. Therefore,
the BOP's official record refutes petitioner's conclusory
contentions that he properly filed everything he needed to
exhaust his time computation claim. Thus, the claim is
unexhausted. Strong, 2010 WL 275206, at *4.
Petitioner replied that he “made multiple attempts to resolve
this matter,” by conferring with various Ray Brook employees
including, but not limited to, someone in the records
department, his Unit Team, the Case Manager Coordinator,
the Associate Warden, and the Warden. Dkt. No. 16 at
2. Further petitioner contends that both he and his family
unsuccessfully attempted to acquire administrative remedy
forms (i.e. BP-9s, -10s and -11s), as well as writing
unanswered letters to the Sentence Computation Center,
the Northeast Regional Offices, and the Office of General
Counsel. Id. Liberally construing petitioner's Traverse, he
seems to argue that the exhaustion requirement should be
waived given his aforementioned efforts.
“The Second Circuit has held that a petitioner may pursue
a request for habeas corpus relief, including pursuant to
28 U.S.C. § 2241, even where he has failed to exhaust
administrative remedies prior to filing the action in district
court, only upon a showing of cause and prejudice.” Barber,
2012 WL 5996342, at *5 (citing Carmona, 243 F.3d at 634)
(“[T]he interests of judicial economy and accuracy are served
by requiring that, absent a showing of cause and prejudice,
appeals proceed in the first instance through the agency
review process.”). When “legitimate circumstances beyond
the prisoner's control preclude him from fully pursuing his
administrative remedies, the [cause and prejudice] standard ...
[provides for an accepted and well-recognized] excuse [for]
th[e] failure to exhaust.” Carmona, 243 F.3d at 634.
Here, petitioner has failed to present circumstances
supporting waiver. First, petitioner's unwavering conclusion
that exhaustion was impossible because of his inability to
procure the BOP forms, either himself or via his family, is
unpersuasive. In his pleading, petitioner indicates that he has
successfully filed all of the BOP forms required to exhaust
his remedies, which is inconsistent with, and contrary to, the
argument advanced in his Traverse. Further, petitioner fails
to provide any type of evidence regarding the unsuccessful
attempts he and his family made to procure said forms. See
Zenquis v. Pullen, No. 3:22-CV-1151, 2023 WL 2931585,
at *4-*5 (D. Conn. Apr. 13, 2023) (emphasizing that “denial
of grievance forms does not, in itself, make administrative
remedies unavailable,” yet finding petitioner sufficiently
demonstrated, via documentation memorializing repeated
requests to staff, that their actions delaying the provision
of administrative grievance forms was sufficient to establish
cause and prejudice to waive exhaustion). Moreover, even if
petitioner did not properly initiate the appeal process, he did
successfully engage with the administrative review program
multiple times as evidenced by the Administrative Remedy
Generalized Retrieval report. Consequently, petitioner either
lied and was previously able to receive BOP forms or proper
BOP forms were not a prerequisite for having his claims pass
through the administrative review process.
*6 Second, petitioner cannot claim that he was ignored
or unaware of how the grievance process worked. This
is illustrated by the two Regional challenges petitioner
filed regarding his “DHO Appeal.” Dkt. No. 12-12 at
4. Petitioner was informed that his first submission was
rejected on a procedural ground; however, he timely remedied
the deficiency, as evidenced by the resubmission to the
Regional office, which was “substantially denied in full”,
presumably on the merits. Dkt. No. 12-12 at 4; see also
Cooley, No. 1:14-CV-3119, 2015 WL 393864, at *2 (defining
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the rejection reason code “DNY”). Even though petitioner
was not successful, he was able to properly file and have
his challenge evaluated through part of the administrative
process. Therefore, this demonstrates that petitioner was able
to engage in the Administrative Remedy Program; he just
appears to have chosen to do so in a manner that did not
comply with the BOP's established procedure.
Finally, to the extent petitioner felt that his history of
rejections or denials would inevitably lead to an unfavorable
decision with respect to his time credit claim, such assertions
are insufficient to waive the exhaustion requirement. See
Rosenthal v. Killian, 667 F. Supp. 2d 364, 367 (S.D.N.Y.
2009) (“[E]ven if it is likely that [petitioner's] administrative
appeals would have been denied, such a showing would not
prove futility.”); accord Atkinson v. Linaweaver, No. 1:13-
CV-2790, 2013 WL 5477576, at *2 (S.D.N.Y. Oct. 2, 2013)
(holding that where “[p]etitioner provides no basis for his
futility argument beyond the fact that his prior administrative
requests were denied,” such arguments are “insufficient as a
matter of law to establish futility.”) (citing cases).
Therefore, petitioner has failed to establish cause to excuse his
failure to exhaust his administrative remedies. Accordingly,
the Court need not decide whether he suffered prejudice. See
Stepney v. Lopez, 760 F.2d 40, 45 (2d Cir. 1985).
2. Providing Nunc Pro Tunc Designation
Even assuming petitioner's claims are not unexhausted, they
would still be denied as meritless. Petitioner contends that
the BOP erred when it denied his motion for nunc pro tunc
designation and refused to apply an additional 2,228 days of
credit, from his incarceration at the Michigan DOCS facility,
to his active federal criminal sentence. Pet. at 5-6; Dkt. No.
1-1 at 1, 4, 6-7. Further, in petitioner's reply, he argues that the
BOP's decision denying his motion was without the proper
consideration and, as a result, treated him unfairly. Dkt. No.
16 at 5-6.
“Nunc pro tunc designation is a retroactive designation that
the BOP may grant in accordance with the discretion it is
given under 18 U.S.C. § 3621(b) to designate the place of a
federal prisoner's confinement.” Wright v. Hudson, No. 9:12-
CV-1638 (JKS), 2015 WL 5971055, at *3 (N.D.N.Y. Oct. 14,
2015); see also Abdul-Malik v. Hawk Sawyer, 403 F.3d 72, 75
(2d Cir. 2005) (explaining that “when [a] federal [criminal]
sentence is imposed before imposition of [a] state sentence,”
the BOP has authority under 18 U.S.C.§ 3621(b) “to designate
the place of the prisoner's imprisonment,” whether that be
a state or federal correctional facility or institution, “as
the place of federal confinement [so that] ... the prisoner's
sentences would effectively run concurrently.”) (citing inter
alia McCarthy v. Doe, 146 F.3d 118, 120, 123 (2d Cir. 1998));
Barden v. Keohane, 921 F.2d 476, 481, 483 (3rd Cir. 1990)
(internal quotation marks omitted). 8
*7 Any such applications must be given “full and fair”
consideration by the BOP; however, it is important to
remember that “[t]he decision whether to designate a facility
as a place of federal detention is plainly and unmistakably
within the BOP's discretion and [the federal courts] cannot
lightly second guess a deliberate and informed determination
by the agency charged with administering federal prison
policy.” Abdul-Malik, 403 F.3d at 76. Accordingly, the BOP's
“decision regarding nunc pro tunc designation is reviewed for
abuse of discretion.” Jennings v. Schult, 377 Fed. App'x 97,
98 (2d Cir. 2010) (citing McCarthy, 146 F.3d at 123 n.4).
Petitioner cites to inapposite cases, from this Circuit, to
support his assertion that the BOP erred in denying his nunc
pro tunc motion. Specifically, the cases analyze situations
where a federal criminal sentence was imposed prior to the
imposition of a state criminal sentence. See Abdul-Malik,
403 F.3d at 74-75 (asking for “congressional consideration
of [federal] statutes,” to clarify “the questions as to how to
treat prisoners sentenced first in federal and then in state
court, and the phenomenon ... that neither the state nor
the federal court can run those sentences concurrently[,]”
after independently considering how it impacted the disputed
nunc pro tunc denial); Wright, 2015 WL 5971055, at *4-*5
(considering appropriateness of nunc pro tunc denial where
“the state court sentencing judge indicated that [petitioner's]
state imprisonment term should run concurrently with the
already-imposed federal term[.]”).
It is important to acknowledge that these cases illustrate the
proper legal circumstance when the BOP should apply 18
U.S.C. § 3621(b), the provision under which it is authorized to
evaluate and decide a motion for a nunc pro tunc designation.
See McCarthy, 146 F.3d at 122 (explaining that a nunc pro
tunc consideration is appropriate where a petitioner “received
a federal sentence while in state custody awaiting trial on
state charges.”); see also Jennings, 377 Fed. App'x at 98
(concluding that a nunc pro tunc designation is appropriate
where “a defendant held in state custody is produced for
federal sentencing ... and sentenced, and the state court later
imposes a sentence”). However, that particular fact pattern is
inapplicable to the instant case.
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Here, when the BOP reviewed petitioner's nunc pro tunc
motion, it concluded that “[b]ecause [the] original and
Amended Judgment and Commitment Order clearly state
[petitioner's] federal sentence is consecutive to the prior
State of Michigan sentence, the BOP determined that
Petitioner is ineligible[.]” McEvoy ¶ 14 (emphasis added);
see also Dkt. No. 12-7 at 4 (sentencing petitioner to a “term
of ... 180 months to run consecutive to his undischarged
term of imprisonment in [the] State of Michigan case[.]”)
(emphasis added). 9 , 10 Contrary to petitioner's position, it
would be inappropriate for the BOP to interject itself into this
scenario, and rely on 18 U.S.C. § 3621(b), because a different
federal statute controls.
*8 18 U.S.C. § 3584(a) applies to an individual with multiple
sentences of imprisonment and provides that when a federal
criminal “term of imprisonment is imposed on a[n individual]
who [wa]s already subject to an undischarged [state criminal]
term of imprisonment, the terms may run concurrently or
consecutively.” Id. In fact, said terms must “run consecutively
unless the court orders that the terms are to run concurrently.”
Id. Here, the district court intentionally and unambiguously
indicated that the federal term of imprisonment was to run
consecutively to the state sentence, an option consistent with
the aforementioned federal statute. As the Supreme Court
has stated, “[w]hen § 3584(a) specifically addresses decisions
about ... consecutive sentences, and makes no mention of
the Bureau's role in the process, the implication is that no
such role exists.” Setser v. United States, 566 U.S. 231, 239
(2012). Therefore, the sentencing judge properly exercised
his authority directing how the state and federal sentences
would run, and that direction did not lead to a circumstance
where a nunc pro tunc designation was warranted. 11
Accordingly, the BOP properly provided petitioner with full
and fair consideration and did not abuse its discretion in
denying petitioner's request for nunc pro tunc designation.
3. Providing Credit for Prior State Service
Alternatively, petitioner argues that he should receive credit
towards his federal sentence for the time he spent in Michigan
DOCS custody while he was awaiting his federal criminal
trial. Dkt. No. 1-1 at 6-7, 9. Again, petitioner relies on
several inapposite cases where federal credit was awarded
to individuals who were not otherwise under primary state
custody. See Kayfez v. Gasele, 993 F.2d 1228, 1290 (7th
Cir. 1993) (awarding credit which was formerly applied to
petitioner's concurrent state court sentence, which had since
been vacated, to petitioner's federal term instead); McClain v.
Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993) (providing
petitioner with credit on his federal sentence for the time he
remained in custody, after being awarded state parole, until his
federal sentence was issued); United States v. Harris, 876 F.2d
1502, 1506-07 (11th Cir. 1989) (“undisputed facts are that the
United States agent of the DEA originated the action taken by
state and city officers ... ask[ing] the local officers to seek a
warrant from the available state judge,” therefore, petitioner
was entitled to federal credit for his pretrial detention); United
States v. Eidum, 474 F.3d 579, 581 (9th Cir. 1973) (clarifying
that time credit toward federal custody was only appropriate
where some “federal process of any sort had issued against
[petitioner, resulting in] ... his release [being] prevented[.]”).
*9 The BOP calculates a term of imprisonment as follows:
(a) Commencement of sentence.--A sentence to a term
of imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official
detention facility at which the sentence is to be served.
(b) Credit for prior custody.--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. “The Attorney General, through the BOP,
possesses the sole authority to make credit determinations
pursuant to 18 U.S.C. § 3585(b)[.]” United States v. Whaley,
148 F.3d 205, 206 (2d Cir. 1998) (citing United States v.
Wilson, 503 U.S. 329, 333 (1992)) (further citations omitted).
Thus, “[u]nder § 3585(b) ... the BOP may grant a[n inmate]
credit against his federal sentence for time served in custody
prior to sentencing in district court so long as that presentence
custody has not been credited against another sentence.”
Lopez v. Terrell, 654 F.3d 176, 178 (2d Cir. 2011) (citing 8
U.S.C. § 3585(b); United States v. Labeille–Soto, 163 F.3d 93,
99 (2d Cir. 1998) (“[A] defendant has no right to credit on
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his federal sentence for time that has been credited against his
prior state sentence.”)) (internal quotation marks omitted).
Here, “[p]etitioner's 180-month sentence has been calculated
to begin on May 8, 2019, the date he was paroled from
his State Sentence, and will conclude on March 15, 2032,
upon reaching his BOP Good Conduct Time Release Date.”
McEvoy ¶ 15; Dkt. No. 12-11 at 2-3. 12 This is consistent with
§ 3585(b) which indicates that a federal sentence commences
when the petitioner is received into federal custody, which
occurred when the US Marshals took petitioner into custody
upon his parole from Michigan DOCS. McEvoy ¶ 11.
It is unclear why petitioner feels that he should be entitled to
any further time toward his federal sentence. Any argument
that “the sentencing court intended that [p]etitioner ... be
credited for his service and pre-trial detention, while housed
in the Michigan Department of Corrections,” Pet. at 6-7,
is irrelevant. “The Bureau of Prisons, and not the courts,
determines when a[n individual's] sentence starts and whether
th[at individual] should receive credit for any prior time spent
in custody.” United States v. Montez-Gaviria, 163 F.3d 697,
700-01 (2d Cir. 1998) (citing cases). Similarly, petitioner's
assertion that his federal sentence commenced immediately
upon payment of a special assessment, Pet. at 8, is also
inconsistent with the plain meaning of § 3585(b) which
conditions commencement of a sentence upon waiting for
transport to or arriving at the federal detention facility.
*10 To the extent that petitioner contends that he should
receive credit for the time he was participating in his
federal criminal prosecution, such claims are meritless.
Petitioner's presence in federal court was achieved by a
writ ad prosequendum, which may be the federal detainer
that petitioner references when he argues he is entitled to
credit for his presentence custody. Pet. at 9. However, despite
petitioner's assertions, he was not transferred out of state
custody and into federal custody when he was released on the
writ to appear in federal court for his criminal prosecution.
See Clapper, 186 F. Supp. 3d at 239 (“When a state prisoner
is transferred into federal custody pursuant to this writ, the
state retains primary custody over [petitioner] ... because
the prisoner is ‘on loan’ to federal authorities.”). Therefore,
“[t]ime in custody pursuant to the writ does not count toward
a federal sentence because the time is credited toward the state
sentence ... [and w]hen the federal prosecution is complete,
... [petitioner is] return[ed] ... to the primary custodian[, the
state.]” Id. at 240 (internal quotation marks and citations
omitted).
In sum, the time that petitioner spent in state custody, prior
to his parole and transfer into the exclusive custody of
the US Marshals, was time he spent serving and receiving
credit against his state sentence. Because § 3585(b) prevents
receiving double credit for time spent in custody that has
already been applied to another sentence, the BOP correctly
applied the federal statute and any request for additional credit
for his federal sentence is denied.
V. CONCLUSION
WHEREFORE, it is hereby
ORDERED that the petition, Dkt. No. 1, is DENIED AND
DISMISSED in its entirety; and it is further
ORDERED that because the petition was brought under 28
U.S.C. § 2241, a certificate of appealability is not required for
petitioner to appeal the denial of his petition. See Murphy v.
United States, 199 F.3d 599, 601 n.2 (2d Cir. 1999) (holding
that the Antiterrorism and Effective Death Penalty Act's
certificate of appealability requirement does not apply to
§ 2241 petitions). However, to the extent one is required,
the Court recommends that no certificate of appealability be
issued because reasonable jurists would not find it debatable
that petitioner has failed to demonstrate by a substantial
showing that he was denied a constitutional right. See 28
U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84
(2000); and it is further
ORDERED that the Clerk serve a copy of this Decision and
Order on the parties in accordance with the Local Rules.
All Citations
Not Reported in Fed. Supp., 2023 WL 4364186
Footnotes
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Green v. Christensen, Not Reported in Fed. Supp. (2023)
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1 Citations to the filings in this case refer to the pagination generated by CM/ECF, the Court's electronic filing
system.
2 See Green I, Dkt. No. 92, Judgment.
3 The Criminal Docket Sheet in Green I does not have an entry for the Amended Judgment.
4 The Criminal Docket Sheet in Green I does not have an entry for the Second Amended Judgment.
5 The exhaustion provisions imposed by the Prisoner Litigation Reform Act (“PLRA”) do not apply to habeas
corpus petitions. Carmona, 243 F.3d at 634 (“[W]e note that although ... the P[LRA] ... contains a statutory
administrative exhaustion requirement ... the requirements of the Act do not apply to habeas proceedings[,]”
regardless of whether the petition is brought pursuant to § 2254 or § 2241).
6 “The BOP maintains a database known as the SENTRY Inmate Management System (“SENTRY”). In the
ordinary course of business, computerized indexes of all formal administrative remedies filed by inmates are
maintained by the Institution, Regional, and Central Offices.” Navarro v. Barraza, No. 3:23-CV-0514, 2023
WL 3483235, at *2 (M.D. Pa. May 16, 2023). Management Analysts, like John McEvoy, have access to
SENTRY and can review the database to determine compliance with the Administrative Remedy Program.
McEvoy ¶ 17.
“Administrative remedy submissions in SENTRY are identified first by a remedy request number that is
followed by an alphabetic designation showing whether the remedy was received by the local correctional
facility (denoted by a letter “F”), Regional Office (denoted by a letter “R”), or Office of General Counsel
(denoted by the letter “A”); and then a number showing how many times a particular request had been
received at that level.” McDonald v. Sage, No. 3:20-CV-1737, 2022 WL 503925, at *3 n.4 (D. Conn. Feb.
18, 2022).
“SENTRY generates a report titled ‘Administrative Remedy Generalized Retrieval’ which allows codes to
be entered to identify the reason or reasons for rejecting a request for administrative relief.” Navarro, No.
3:23-CV-0514, 2023 WL 3483235, at *2. The retrieval report was the attachment McEvoy relied upon while
discussing the information in this section. McEvoy ¶ 18; Dkt. No. 12-12.
7 The Administrative Remedy Generalized Retrieval report indicated that two of petitioner's attempts were
“DNY”. Dkt. No. 12-12 at 4 & 5. The status code DNY means that the remedy requested was “substantially
denied in full.” Cooley v. True, No. 1:14-CV-3119, 2015 WL 393864, at *2 (D. Colo. Jan. 29, 2015).
8 In deciding any nunc pro tunc motions, the BOP must evaluate:
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence--
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2)
of title 28.
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Green v. Christensen, Not Reported in Fed. Supp. (2023)
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18 U.S.C.§ 3621(b).
9 Petitioner was first sentenced, on his state criminal conviction, to a minimum of eight years of state court
custody. Dkt. No. 12-3 at 2. Approximately a year and a half later, while petitioner was serving his state court
sentence, he was sentenced on his federal criminal conviction, Dkt. No. 12-5 at 4; however, that initial federal
judgment was twice-amended, Dkt. No. 12-6 at 3-4 & Dkt. No. 12-7 at 3-4.
To the extent petitioner's Traverse advances new arguments asserted for the first time in petitioner's reply
about the lawfulness of the resentencing procedures and the amended judgments, Dkt. No. 16 at 9, such
arguments will not be considered because these challenges to the imposition of petitioner's sentence appear
to best be presented in a habeas petition brought pursuant to Section 2255. See Johnson v. United States,
623 F.3d 41, 45-46 (2d Cir. 2010) (considering whether a habeas petition filed after an amended judgment
is successive and concluding that it is not “regardless of whether it challenges the conviction, the sentence,
or both.”) (citing Magwood v. Patterson, 561 U.S. 320, 330-342 (2010)).
10 The resentencing was prior to petitioner's parole from his state court sentence, which occurred on May 8,
2019. Dkt. No. 12-8 at 2.
11 18 U.S.C. § 3584(a) is also used when an individual “was in primary state custody at the time his ... federal
sentence was imposed ... [but] the district court's judgment [wa]s silent on [how the federal sentence should
run,]” because the statute directs that “the court's silence [be] construed as an intent to impose a consecutive
sentence, and the federal sentence commences only when primary state custody ... is relinquished.” Clapper
v. Langford, 186 F. Supp. 3d 235, 238 (N.D.N.Y. 2016). In those circumstances, courts within this Circuit
have held that the BOP lacks authority to issue a nunc pro tunc designation. See Jennings v. Schult, 377 Fed.
App'x 97, 98 (2d Cir. 2010) (“because [petitioner] was subject to an undischarged state term of imprisonment
at the time the federal court resentenced him, and because the federal court [was silent and] did not direct that
its sentence should run concurrently, the statute required that the sentence run consecutively, and the B[OP]
was without authority to direct otherwise.”); Ortiz v. Breckon, No. 9:17-CV-0559 (LEK), 2018 WL 557879, at
*3 (N.D.N.Y. Jan. 22, 2018) (“[T]he BOP lacks ... authority [to designate, nunc pro tunc, the state facility as a
federal prison] when the federal sentencing court imposes sentence after the state and fails to note whether
a sentence should be consecutive or concurrent.”).
Accordingly, here, where the federal sentencing court was more explicit using 18 U.S.C. § 3584(a) – directing
the later-imposed federal sentence run consecutively to the undischarged state sentence – than the courts
in Jennings, Clapper and Ortiz, it stands to reason that the same logic and conclusion applies: the BOP is
without authority to grant a nunc pro tunc designation.
12 To the extent petitioner's Traverse puts forth new arguments raised for the first time in his reply about
additional Earned Time Credit to which he feels he is entitled as the result of the First Step Act and petitioner's
classification as “NOT ... [a] disqualif[ied] individual[,]” Dkt. No. 16 at 8, such arguments will not be considered
at this time because the practice is generally inappropriate unless immediate release is at stake, which is not
presently the case. See e.g. Lallave, 609 F. Supp. 3d at 182 (“[C]ourts typically do not allow new arguments
to be made in a reply brief, and this rule applies in the context of habeas petitions,” unless the new argument
might entitle petitioner to immediate release).
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Greenough v. Hufford, Not Reported in F.Supp.2d (2013)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2013 WL 4534997
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Jeromee Wade GREENOUGH, Petitioner,
v.
Mr. HUFFORD, Respondent.
No. 12 Civ. 08836(JPO)(SN).
|
Aug. 27, 2013.
ORDER ADOPTING REPORT
ANQ RECOMMENDA TION
J. PAUL OETKEN, District Judge.
*1 Pro se petitioner Jeromee Wade Greenough brings
this petition for writ of habeas corpus, pursuant to 28
U.S.C. § 2241, alleging that the Federal Bureau of Prisons
(the “30P”) erroneously calculated the presentence custody
time credited to his federal sentence. After reviewing the
pleadings and record, Magistrate Judge Sarah Netburn
issued a Report and Recommendation, recommending that
since the time Petitioner seeks to have credited toward his
federal sentence has already been credited towards his state
sentence, Petitioner's writ of habeas corpus should be denied.
This Court adopts Judge Netburn's thorough Report and
Recommendation in its entirety.
I. Standard of Review
In reviewing a magistrate judge's report and recommendation,
a district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Where, as here,
a magistrate judge provides notice to the parties in a report
and recommendation that any objections must be provided
within a certain period of time, and no such objections are
filed, the district court will review the magistrate's findings
for clear error. See Wolff v. Town of My. Pleasant, No. 06 Civ.
3865(CS)(LMS), 2009 WL 1468620, at * 1 (S.D.N.Y. May
26, 2009) (“The district court may adopt those portions of
a report and recommendation to which no objections have
been made, as long as no clear error is apparent from the face
of the record.” (citing cases)); accord Mott v. IBM, No. 10
Civ. 4933(JFB)(WDW), 2011 WL 3847176, at * 1 (E.D.N.Y.
Aug. 30, 2011) (“Where clear notice has been given of the
consequences of failure to object, and there are no objections,
the Court may adopt the report and recommendation without
de novo review.” (citing cases)). At bottom, “[i]t does not
appear that Congress intended to require district court review
of a magistrate's factual or legal conclusions, under a de novo
or any other standard, when neither party objects to those
findings.” Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466,
88 L.Ed.2d 435(1985).
II. Application
Magistrate Judge Netburn first found that Greenough failed
to exhaust his administrative remedies, because Greenough
filed a required appeal to the Regional Director three weeks
late, and then did not respond to BOP's repeated requests for
an explanation. (R & R at 4–5.) He additionally presented an
untimely appeal to the Office of General Counsel and again
failed to respond to the BOP's request for an explanation. (Id.
at 4.)
Judge Netburn additionally concluded that Greenough's
underlying claims are without merit. (Id.) First, Greenough
contends that his federal sentence should be calculated to
begin on either the date his federal detainer was lodged or
the date he was transferred to federal custody pursuant to
the writ of habeas corpus ad prosequendum. (Id. at 8.) This
claim is inconsistent with 18 U.S.C. § 3585(a), however,
which establishes that a federal sentence begins only after
that sentence is first pronounced. (Id.) The BOP calculated
Greenough's sentence to commence on June 17, 2004–the
date his federal sentence was imposed; accordingly, Judge
Netburn concluded that his federal sentence “could not have
commenced any earlier than June 17, 2004.” (Id. at 9.)
*2 Greenough also objects to his denial of credit for
numerous periods of presentence custody, “collectively
seeking credit for all custody prior to the imposition of
his federal sentence.” (Id.) First, with respect to the DSCC
recalculation denying Greenough credit for presentence state
custody from April 24, 2002 to October 15, 2003, Judge
Netburn determined that the relevant recalculation “correctly
credited Greenough for the period from October 11, 2001
—the date of his arrest for the underlying federal offense
—through April 23, 2002—the date before the imposition
of his first sentence....” (Id.) Greenough also seeks credit
for the time spent in state custody from October 15, 2003
until he was transferred to federal custody in the Middle
District of Florida on November 13, 2003. Those dates were
credited to Greenough's state sentence however, and thus,
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cannot be double counted towards his federal time, as October
15, 2003 had been credited as presentence custody credit
and, the following day, on October 16, 2003, Greenough
had begun his Hernando County state sentences. (Id .)
Additionally, Greenough seeks credit for the 246 days spent
in federal custody in the wake of his transfer to the custody
of the U.S. Marshals pursuant to a writ of habeas corpus
ad prosequendum on November 13, 2003, until his federal
sentence's imposition in June 2004. These dates were credited
towards his state sentence as well. (Id. at 11.) Moreover,
while there are certain exceptions to the general prohibition
against double counting state custody time, Judge Netburn
determined that they did not apply here.
Greenbough's final objection, that his federal sentence's
completion date has been improperly calculated, is also
without merit. (Id. at 13.) According to Greenough, his
current release date is set for January 1, 2022, which
exceeds his 235–month sentence. (Id.) Greenough's sentence,
however, is scheduled to conclude on December 26, 2020.
(Id.)
Judge Netburn clearly informed the parties of their right to
object within. 14 days of the Report's issuance. (Id. at 14.) The
Report was filed on July 26, 2013, and no objections followed.
Judge Netburn further recommended that no certificate of
appealability be issued and that the Court certify, pursuant to
28 U .S.C. § 1915(a)(3), that any appeal from its order not be
taken in good faith, thus denying in forma pauperis status for
the purpose of an appeal. (Id. at 29 (citing Coppedge v. United
States, 369 U.S. 438, 444–45 (1962).)
Having found no clear error, the Court adopts Judge Netburn's
Report and Recommendation in its entirety.
III. Conclusion
In accordance with Magistrate Judge Netburn's Report and
Recommendation of July 26, 2013, Petitioner's writ of habeas
corpus is DENIED. As Petitioner has not made a substantial
showing of the denial of a constitutional right, no certificate
of appealability will be issued. The Court certifies, pursuant
to 28 U .S.C.1915(a)(3), that any appeal from its order would
not be taken in good faith and, therefore, in forma pauperis
status is denied for the purposes of an appeal.
*3 The Clerk of Court is directed to close the case.
SO ORDERED.
REPORT AND RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE J. PAUL OETKEN:
Pro se petitioner Jeromee Wade Greenough brings this
petition for writ of habeas corpus, pursuant to 28 U.S.C. §
2241, alleging that the Federal Bureau of Prisons (the “BOP”)
erroneously calculated the presentence custody time credited
to his federal sentence. Because the days that Greenough asks
to have credited toward his federal sentence already have been
credited to his state sentence, he is not entitled to the relief
he seeks. Accordingly, his petition for writ of habeas corpus
should be DENIED.
BACKGROUND
Greenough is a prisoner at the Federal Correctional Institution
in Otisville, New York (“FCI Otisville”), where he is serving
a 235–month sentence for armed bank robbery.
I. Factual Background
The following facts are taken from the parties' pleadings and
the record.
A. Presentence State Custody
On October 11, 2001, Greenough was arrested by the Sumter
County, Florida Sheriff's Department for armed robbery,
conspiracy to commit robbery, aggravated assault with a
deadly weapon and battery. On May 14, 2002, Greenough's
Sumter County charges were dismissed in favor of a
federal prosecution for the same offenses. It is the sentence
calculation for this conviction that Greenough challenges.
B. Post–Sentence State Custody
On April 24, 2002, while Greenough's Sumter County charges
were still pending, he was writted from Sumter County to
Polk County, Florida, where he was sentenced to five years'
imprisonment for attempted robbery with a deadly weapon.
Following this sentence, he was transferred to Pasco County,
Florida, to face additional charges of attempted robbery. On
August 26, 2003, Greenough was sentenced in Pasco County
to a 21–month sentence.
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On August 29, 2003, pursuant to a writ, Pasco County
released Greenough to Hernando County, Florida to address
additional pending charges. On October 15, 2003, Greenough
was sentenced in Hernando County to two concurrent ten-
year sentences for armed robbery.
The Florida Department of Corrections credited to
Greenough's state sentences, as time served, the period from
Greenough's arrest on October 11, 2001, until October 15,
2003, when he was sentenced by Hernando County.
C. Federal Conviction and Sentence
On November 13, 2003, following the imposition of his
sentence in Hernando County, Greenough was released to the
custody of the United States Marshals pursuant to a writ of
habeas corpus ad prosequendum to face charges in the United
States District Court for the Middle District of Florida for
the conduct for which he was arrested on October 11, 2001,
in Sumter County. He remained in the custody of the U.S.
Marshals through June 28, 2004.
On February 27, 2004, Greenough pled guilty in the Middle
District of Florida to nine counts arising from his commission
of armed bank robberies from June 13, 2001, through October
11, 2001. On June 17, 2004, the court imposed a 235–
month sentence on Greenough. That sentence was to run
concurrently with the state sentences imposed by Pasco and
Hernando Counties. On June 28, 2004, based on Florida's
primary jurisdiction, Greenough was returned to the custody
of the Florida Department of Corrections.
*4 On October 11, 2011, Greenough completed his state
sentences and was released to the Bureau of Prisons to serve
the balance of his federal sentence.
D. Federal Habeas Corpus Petition
Greenough initially filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 seeking the same relief sought
here in the Middle District of Florida, but it was dismissed
for lack of jurisdiction. See Greenough v. Rodriguez, 12
Civ. 02609 (M.D.Fla. Nov. 20, 2012). Because Greenough
is incarcerated in a facility located in Otisville, New York,
on December 4, 2012, he filed this petition in the Southern
District of New York. On May 3, 2013, the Honorable J.
Paul Oetken referred this case to my docket for a report
and recommendation. On May 22, 2013, respondent filed his
answer. On July 9, 2013, Greenough filed his reply and the
petition became fully briefed.
DISCUSSION
Greenough seeks habeas relief on the ground that his federal
sentence was erroneously calculated based on presentence
custody credit.
I. Exhaustion
The Attorney General, acting through the BOP-and not the
sentencing judge-is responsible for calculating sentencing
credits for a prisoner's presentence custody. United States
v. Wilson, 503 U.S. 329, 334–35 (1992). Thus the BOP's
decision to grant such presentence custody credit is subject
to judicial review only after the defendant has exhausted
his administrative remedies with the BOP, United States v.
Labeille–Soto, 163 F.3d 93, 99 (2d Cir.1998), or established
cause and prejudice for his procedural default, Carmona
v. United States BOP, 243 F.3d 629, 634 (2d Cir.2001).
The requirement to exhaust “protect[s] the authority of
administrative agencies, limit[s] interference in agency
affairs, develop[s] the factual record to make judicial review
more efficient, and resolv[es] issues to render judicial review
unnecessary.” Beharry v. Ashcroft, 329 F.3d 51, 62 (2d
Cir.2003).
In his petition, Greenough states that he exhausted his
administrative remedies. Respondent disputes this assertion,
showing that Greenough filed a required appeal to the
Regional Director three weeks late and did not reply to
the BOP's request to explain his untimely submission, and
then presented an untimely appeal to the Office of General
Counsel while again failing to respond to the BOP's request
for explanation.
A petitioner fails to exhaust when his appeal is denied as
untimely and he does not explain his delay. See Carmona,
243 F.3d at 632–35; Gordon v. Yusuff, 102 F. App'x 415,
415 (5th Cir.2004) (per curiam ) (finding that federal habeas
petitioner failed to exhaust administrative remedies when he
provided no explanation for filing untimely appeal); Collins
v. Zickefoose, 08 Civ. 00747(WWE), 2008 WL 4980361,
at *2 (D.Conn. Nov. 20, 2008) (same). Here, Greenough
failed to provide any explanation or excuse for his untimely
administrative grievance. Accordingly, Greenough has failed
to exhaust. See Carmona, 243 F.3d at 634–35 (“We are
unpersuaded that [petitioner] will be able to demonstrate
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‘cause’ by proffering an adequate excuse for his failure to
request an extension of time for his administrative appeal.”).
*5 In his reply, Greenough argues that he mistakenly
presented his claim at the institutional level when he should
have submitted it first to the Designation and Sentence
Computation Center (the “DSCC”) in Grand Prairie, Texas,
and then to the General Counsel—and that it was incumbent
on the BOP to inform him of the proper procedure. Thus
Greenough's defense for his untimely filings with the regional
office and Office of General Counsel appears to be that he
was never informed that he was supposed to submit his claims
to those offices. The Court is doubtful that this reasoning
excuses Greenough's failure to respond to the BOP's requests.
Greenough, moreover, cannot show that he was prejudiced
by any BOP action: he presented his claims to the proper
institutions, but ignored their requests to explain why his
submissions were late. Greenough's own failures to provide
an explanation caused his default.
Nevertheless, the Court will exercise its discretion to proceed
with the analysis because Greenough's underlying claims are
without merit. Martinez v. United States, 19 F.3d 97, 99
(2d Cir.1994) (per curiam ) (finding that petitioner's claim
for sentencing credit lacked merit notwithstanding seeming
failure to exhaust); Sarro v. Billingsley, 11 Civ. 09395(MHD),
2013 WL 120817, at *3 (S.D.N.Y. Jan. 10, 2013) (same).
II. Merit's Review
Federal courts are required to construe a pro se petitioner's
habeas petition liberally. Thompson v. Choinski, 525 F.3d 205,
209 (2d Cir.2008); see Haines v. Kerner, 404 U.S. 519, 520–
21 (1972). “A writ of habeas corpus under § 2241 is available
to a federal prisoner who does not challenge the legality of his
sentence, but challenges instead its execution subsequent to
his conviction.” Carmona, 243 F.3d at 632; accord Poindexter
v. Nash, 333 F.3d 372, 377 (2d Cir.2003) (“Under § 2241, a
prisoner may challenge the ... calculations by the [BOP] of the
credit to be given for other periods of detention.” (citations
and internal quotation marks omitted)).
A federal sentence commences, at the earliest, when an
individual is sentenced. See Lopez v. Terrell, 654 F.3d 176,
185, 187 n. 5 (2d Cir.2011); Labeille–Soto, 163 F.3d at 98.
Credit for time served before the commencement of a federal
sentence is computed by the Attorney General, who delegates
that responsibility to the BOP. See Wilson, 503 U.S. at 331–
34; United States v. Montez–Gaviria, 163 F.3d 697, 700–01
(2d Cir.1998). In turn, the BOP is bound by the Sentencing
Reform Act of 1984, 18 U.S.C. § 3551 et seq. (the “Act”),
which provides:
(a) Commencement of sentence.—A sentence to a term
of imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official
detention facility at which the sentence is to be served.
(b) Credit for prior custody.—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—
*6 (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. Thus, under § 3585(b), the BOP cannot
grant presentence custody credit if the prisoner has already
received credit for the same period of custody toward a state
sentence. See Lopez, 654 F.3d at 178 (citing Labeille–Soto,
163 F.3d at 99 (stating that a “defendant has no right to credit
on his federal sentence for time that has been credited against
his prior state sentence”)).
There are limited exceptions to the general bar against double-
counting presentence custody proscribed in § 3585(b). The
BOP will grant presentence custody credit when a prisoner
is serving concurrent federal and state terms, and the state
raw effective full term (or “Raw EFT”) is a date equal to
or earlier than the federal Raw EFT. 1 See Willis v. United
States, 438 F.2d 923, 925 (5th Cir.1971). Under the Willis
exception, a prisoner is entitled to receive credit toward his
federal sentence for all presentence, non-federal custody that
occurs on or after the date of the federal offence until the date
that the first sentence, whether state or federal, begins. (See
Declaration of Dawn L. Giddings, Ex. 9 (the “BOP Sentence
Computation Manual”) at 1–22.)
The BOP also will grant presentence custody credit if the
prisoner is serving concurrent federal and state terms, the state
Raw EFT is a date equal to or later than the federal Raw EFT,
but the date for the completion of the state sentence, after
application of credit for qualified state presentence time, is
reduced to a date that now is earlier than the federal Raw EFT.
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See Kayfez v. Gasele, 993 F.2d 1288 (7th Cir.1993). Where
the Kayfez exception applies, the BOP will grant enough
presentence custody credit to reduce the prisoner's federal
term so that it is equal to the state term, in order to give
the prisoner full credit for his presentence custody. (See BOP
Sentence Computation Manual at 1–22B to 22–C.)
A. BOP's Sentence Calculation
Greenough's federal sentence began on June 17, 2004—
the date it was imposed—while he still was serving his
state sentence. His sentence initially was computed by the
DSCC on December 30, 2010, and certified on May 23,
2011. 2 In this computation, Greenough's federal Raw EFT
was determined to be July 9, 2021. Under Willis, he was
(erroneously, it turns out) granted 735 days of presentence
custody credit, from October 11, 2001—the date of his arrest
for the conduct underlying Greenough's federal sentence—
through October 15, 2003—the date when Greenough's third
state sentence was imposed. This resulted in a scheduled
release date of July 5, 2019.
After Greenough's habeas petition was filed, the DSCC
reexamined its sentencing calculations and determined that
Greenough should have received presentence custody credit
from October 11, 2001, through only April 23, 2002—the
day before the commencement of his first state sentence, for
the Polk County conviction, which was imposed on April 24,
2002. Consequently, Greenough's sentence was recalculated
to remove the Willis credit for the period from April 24,
2002, through October 15, 2003. Based on that recalculation,
Greenough is scheduled to be released on December 26, 2020.
B. Greenough's Objections to BOP's Calculations
*7 Read liberally, Greenough makes three objections to
the calculation of his sentence. To begin, he objects that
the BOP incorrectly calculated the date when his federal
sentence commenced. Greenough may be arguing that his
federal sentence should be calculated to start on either the date
his federal detainer was lodged or the date he was transferred
to federal custody pursuant to the writ of habeas corpus ad
prosequendum. But this conclusion would be inconsistent
with § 3585(a), which establishes that a federal sentence
commences only after the sentence is pronounced. See Lopez,
654 F.3d at 185, 187 n. 5; Labeille–Soto, 163 F.3d at 98. Here
the BOP calculated Greenough's sentence to commence on
June 17, 2004–the date his federal sentence was imposed. See
18 U.S.C. § 3585(a). Accordingly, on its face this argument
fails to persuade because his federal sentence could not have
commenced any earlier than June 17, 2004.
Next, Greenough challenges the denial of credit for various
periods of presentence custody, collectively seeking credit
for all custody prior to the imposition of his federal
sentence. First, although understandably raised only in
his reply submission, Greenough challenges the DSCC's
revised sentencing calculation, which denied him credit for
presentence state custody from April 24, 2002—the date his
first sentence (Polk County) began—to October 15, 2003—
the date his third sentence (Hernando County) began. So-
called Willis credit for presentence state custody ceases when
the first sentence (state or federal) begins. (See BOP Sentence
Computation Manual) at 1–22); see also Jackson. 2009
WL 1835004, at *5 (finding that BOP correctly calculated
Willis credit from the time petitioner was detained until the
time his state sentence began). Here, the DSCC's revised
Willis calculation correctly credited Greenough for the period
from October 11, 2001—the date of his arrest for the
underlying federal offense-through April 23, 2002—the date
before the imposition of his first sentence (imposed by Polk
County). This revision corrected the earlier error of granting
Greenough credit up to the date of his third sentence (imposed
by Hernando County).
Second, Greenough seeks credit for the time spent in state
custody from October 15, 2003, the date he started serving
time on the Hernando County convictions, until he was
transferred into federal custody to face charges in the Middle
District of Florida, on November 13, 2003. These dates,
however, already have been credited to Greenough's state
sentence and therefore cannot be double-counted toward
his federal sentence. In calculating his release date on the
Hernando County convictions, the Florida Department of
Correction granted Greenough presentence custody credit for
the days from October 11, 2001 (his arrest date) until October
15, 2003. The day of October 15, 2003 cannot now be credited
toward Greenough's federal sentence because § 3585(b) bars
such double-counting. See Lopez, 654 F.3d at 178 (finding
that “[i]f a defendant's presentence custody has been credited
to another sentence, no § 3585(b) credit is available”); United
States v. Fermin, 252 F.3d 102, 108 n. 10 (2d Cir.2001) (“The
[BOP] could not credit [defendant] for the time he had already
served because it was credited against another sentence—
the state parole violation—even though he might have been
discharged earlier on his state sentence.”); Werber v. United
States, 149 F.3d 172, 173 (2d Cir.1998). 3
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*8 Similarly, on October 16, 2003, Greenough had begun
his Hernando County sentences, and he was not released
into federal custody until they were completed on October
11, 2011. Time spent serving a state sentence also is time
credited against that sentence. See Mitchell v. Killian, 08 Civ.
02373(LAP)(DF), 2009 WL 7451705, at *3–4 (S.D.N.Y. Apr.
13, 2009) (finding that time served on state sentence was time
credited to that sentence), adopted by 2011 WL 710612, at *1
(S.D.N.Y. Feb. 25, 2011); see also United States v. Rivers, 329
F.3d 119, 121 n. 1 (2d Cir.2003) (finding that defendant could
“not be credited by the BOP for the time served under the state
sentence because that time ha[d] already been credited against
another sentence—specifically, the state drug and counterfeit
sentences” (citations and internal quotation marks omitted)).
Accordingly, § 3585(b) bars double-counting the period from
October 15, 2003, through November 13, 2003 (and, as
explained below, until his federal sentence was imposed on
June 17, 2004).
Third, Greenough seeks credit for the 246 days ostensibly
spent in federal custody following his transfer to the
custody of the U.S. Marshals pursuant to a writ of habeas
corpus ad prosequendum on November 13, 2003, until his
federal sentence was imposed on June 17, 2004. The writ
of habeas corpus ad prosequendum enables a jurisdiction
“to take temporary custody of a prisoner confined within
another jurisdiction, and indict, prosecute and sentence such
prisoner.” Flick v. Blevins, 887 F.2d 778, 781 (7th Cir.1989).
A prisoner remains, however, the subject of the state's
jurisdiction during the time spent in federal custody pursuant
to the writ. See United States v. Lockenwitz, 376 F. App'x
147, 150 (2d Cir.2010) (“[A] defendant held at a federal
detention facility is not ‘in custody’ for the purposes of §
3585(a) when he is produced through a writ of habeas corpus
ad prosequendum.” (quoting Fermin, 252 F.3d at 108 n. 10)).
In any event, these dates have already been credited toward
Greenough's state sentence. See also Wilson, 503 U.S. at 334
(under 18 U.S.C. § 3585(b), a defendant may not receive
double-credit for presentence detention time).
Relatedly, Greenough suggests that the filing of the federal
detainer is sufficient to constitute federal custody for purposes
of calculating presentence custody credit. 4 Some circuits
have suggested that a federal prisoner may be awarded credit
for presentence state custody if the prisoner can demonstrate
that the federal detainer was the “exclusive” cause of his
state detention. See, e.g., United States v. Blankenship, 733
F.2d 433, 434 (6th Cir.1984) (explaining that “the evolved
legal precedent also teaches that the credit against the federal
sentence attaches only when the federal detainer is the
exclusive reason for the prisoner's failure to obtain his release
on bail”); Shaw v. Smith, 680 F.2d 1104, 1106 (5th Cir.1982)
(same). Although this exception to the general prohibition
against double-counting state custody time has not been
adopted by the Second Circuit, some district courts have
recognized it. See, e.g., Rosemond v. Menifee, 137 F.Supp.2d
270, 274–75 (S.D.N.Y.2000). But even allowing for this
exception does not offer Greenough any relief. Greenough
already has received Willis credit for the dates in state custody
from October 11, 2001, the date of his arrest, to April 23,
2002, the date before his first state sentence commenced.
From April 24, 2002, through June 17, 2004, the date
his federal sentence commenced, he was serving his state
sentence. Plainly, the federal detainer was not the “exclusive”
cause of his state detention at that time.
*9 In his challenge to the BOP's denial of presentence
custody credit, he cites to two cases. In United States v. Smith,
318 F.Supp.2d 875 (C.D.Cal.2004), the prisoner was arrested
on federal charges, released on bond and thereafter committed
a state offense for which he was arrested. The district court
held that the prisoner was entitled to presentence custody
credit against his federal sentence for all of his presentence
incarceration, whether in federal or state custody, if the state
custody resulted from commission of an offense that occurred
after the commission of the federal offense. Id. at 878. Smith is
distinguishable because, in that case, there was no allegation
or evidence that the presentence time at issue had been
credited against another sentence . 5 Id. By contrast, all of
Greenough's presentence custody from April 24, 2002, until
the imposition of his federal sentence was credited to his state
sentences.
Greenough also cites to Kayfez, 993 F.2d at 1289, but that
case does not apply here. The rule set forth in Kayfez is
designed to allow a prisoner the full credit for his presentence
custody. It applies only where a prisoner's state sentence is
longer than his federal sentence, but, after the application of
presentence custody credit to his state term, the state term
would end before the federal sentence would be completed.
In such circumstances, the BOP will grant a federal prisoner
credit for enough presentence custody days to render his
state and federal release date the same. Here, Greenough's
state Raw EFT was never greater than his federal Raw EFT
and so the application of presentence custody credit to his
state sentence alone does not deny him full credit for his
presentence custody. Allowing for presentence custody credit,
Greenough's state sentences were completed on October 11,
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2011—whereas the BOP's best estimate is that Greenough
will not complete his federal sentence until December 26,
2020.
Finally, Greenough seems to object that his federal sentence's
completion date has been improperly calculated. Specifically,
he states that his current release date is January 1, 2022, which
is not the proper calculation of the “(235) months from the
start of [his] jail credit” on October 11, 2001. (Greenough
Petition for Habeas Corpus Under § 228 U.S.C. § 2241 at 5.)
It is unclear how Greenough derived this January 11, 2022
date; currently, Greenough's sentence is scheduled to end on
December 26, 2020.
CONCLUSION
For these reasons, I recommend that Greenough's petition for
a writ of habeas corpus be DENIED. Because Greenough
has not made a substantial showing of the denial of a
constitutional right, I recommend that no certificate of
appealability be issued. See 28 U.S.C. § 2253(c)(2); Lucidore
v. N.Y.S. Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000).
I further recommend that the Court certify, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from its order would not
be taken in good faith and, therefore, that in forma pauperis
status be denied for the purpose of an appeal. See Coppedge
v. United States, 369 U.S. 438, 444–45 (1962).
* * *
NOTICE OF PROCEDURE FOR
FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
*10 The parties shall have fourteen days from the service
of this Report and Recommendation to file written objections
pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a),
(d) (adding three additional days when service is made under
Fed.R.Civ.P. 5(b)(2) (C), (D), (E), or (F)). A party may
respond to another party's objections within fourteen days
after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such
objections shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable
J. Paul Oetken at the Thurgood Marshall Courthouse, 40
Foley Square, New York, New York 10007, and to any
opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6(a), 6(d), 72(b). Any requests for an extension of time for
filing objections must be addressed to Judge Oetken. The
failure to file these timely objections will result in a waiver
of those objections for purposes of appeal. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 72(b); Thomas v. Arn, 474
U.S. 140 (1985).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 4534997
Footnotes
1 The Raw EFT is the date for completion of a sentence when no presentence custody credit is applied. It is
calculated by adding the length of the sentence imposed to the commencement date of the sentence.
2 “Computing a federal sentence requires two separate determinations: first, when the sentence commences;
and, second, to what extent the defendant in question may receive credit for any time already in custody.”
Jackson v. Killian, 08 Civ. 04386(SAS), 2009 WL 1835004, at *5 (S.D.N.Y. June 23, 2009) (citation omitted).
3 From the language employed in Respondent's submissions, October 15, 2013, also might be considered the
first day of Greenough's Hernando County sentences. But for reasons discussed, even if this is correct, the
day already has been counted.
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4 It is not clear when the federal detainer was lodged.
5 It appears that the Smith court did not count time served on the state sentence as time credited to that
sentence (at the least, when the government did not allege that it should be so credited). But in this Circuit time
served on a state sentence is time credited towards that sentence and, thus, time that cannot be concomitantly
credited towards a federal sentence. See Mitchell, 2009 WL 7451705, at *3–4; see also Rivers, 329 F.3d
at 121 n. 1.
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Henriquez v. U.S., Not Reported in F.Supp.2d (2012)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 6739422
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
William HENRIQUEZ, Petitioner,
v.
UNITED STATES of America, Respondent.
No. 12 Civ. 5590(AKH).
|
Dec. 27, 2012.
OPINION AND ORDER TO AMEND PETITION
ALVIN K. HELLERSTEIN, District Judge.
*1 Petitioner, William Henriquez, complains that he is being
detained illegally in a New York State Corrections facility,
and moves pursuant to 28 U.S.C. § 2255 to correct his
sentence. Petitioner, if he wishes to pursue the relief he
requests, shall file an Amended Petition within sixty days of
the date of this Order as detailed below.
Henriquez' motion may also be treated as a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. A court should
construe a prisoner's petition without regard to its label, but
with an eye to the relief sought. Chambers v. United States,
106 F.3d 472, 475 (2d Cir.1997). Since Henriquez' petition
challenges the execution of his sentence, his petition is more
properly filed pursuant to § 2241. Grullon v. Ashcroft, 374
F.3d 137, 139 (2d Cir.2004) (“A § 2241 petition generally
challenges the execution of a federal prisoner's sentence,
whereas challenges to the underlying conviction and sentence
are properly raised in a § 2255 petition”). Moreover, relief
under § 2255 is time-barred by the statute's 1–year period
of limitation. Clearly, Henriquez consents to such treatment,
since it is the only way he can now raise the issue of his
sentence for federal judicial resolution. See Simon v. United
States, 359 F.3d 139, 144 (2d Cir.2004) (requiring notice and
consent before construing a petitioner's filing as a § 2241
petition). Therefore, I proceed to the merits of Henriquez'
petition for relief.
Discussion
I sentenced Henriquez on October 26, 2007 to a term of
custody of 240 months, the statutory maximum. He, with
other defendants, had been charged on May 12, 2006, with a
Hobbs Act robbery (18 U.S.C. § 1951), conspiracy (18 U.S.C.
§ 1951–52), use of a firearm while committing the robbery
(18 U.S.C. § 924(c)), and murder during the commission of
the robbery (18 U.S.C. § 924(j)). Henriquez pleaded guilty
to committing the robbery (Count Two of the four counts).
His Guidelines calculation came to a net offense behavior
level of 40, a criminal history category of VI, and a range of
imprisonment of 360 months to life. See Order Declining to
Revisit Opinion on Designation, March 25, 2011, explaining
the calculation.
At the time I sentenced Henriquez, he also was under
indictment in New York Supreme Court for manslaughter.
The state-charged crime was a different crime, committed in
different circumstances, in a different place, and involving
different people. I did not consider his New York State
indictment as a factor in determining Henriquez' federal
sentence. That remained for the New York Supreme Court
Justice to consider.
Following his federal sentencing, Henriquez was remitted
to the New York State Supreme Court, to answer his state
charges. He pleaded guilty to manslaughter, and the New York
court sentenced him to a term of 15 years, to run concurrently
with his 20–year federal sentence and to be served in the
federal penitentiary. Transcript of plea and sentence, People
v. Henriquez, 44934/2007, Nov. 15, 2007. The sentencing
Justice could not, however, order the federal sentence to be
served concurrently with the state sentence.
*2 It appears that New York State officials placed Henriquez
in a New York State penitentiary where he began serving his
state sentence, not in a federal penitentiary. He remains in the
custody of the New York State Department of Corrections.
Henriquez subsequently petitioned the U.S. Bureau of Prisons
to transfer him to a federal penitentiary, and the Bureau
asked me for my recommendation. I declined to make a
recommendation, leaving the matter to the discretion of
the Bureau. See Order, May 24, 2010. I re-affirmed that
declination by my Order of March 25, 2011. I wrote:
[T]he insurmountable fact is that
Henriquez is responsible for two
different homicides, and he was
punished discretely for each one.
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Though the Supreme Court Justice
ordered the state sentence to be served
concurrently with any pending federal
sentences, the Justice only had power
to influence the service of the state
sentence.
Order Declining to Revisit Opinion on Designation, Mar. 25,
2011. I declined to express an opinion “whether Henriquez
should or should not be transferred into federal custody at the
present time in order to make possible a concurrent service of
his state and federal sentence. Id.
In a letter dated July 9, 2012, Henriquez argues that he should
have been sent immediately to the federal penitentiary when
I sentenced him, for I had recommended that he be detained
at Fort Dix or another facility proximate to New York City
to facilitate family visitation. Letter from William Henriquez
to Jessica A. Masella. Assistant U.S. Att'y (July 9, 2012).
Henriquez is incorrect My recommendation as to which
federal institution should house Henriquez was not intended
to order that Henriquez should serve his federal sentence
before, or concurrently with, a state sentence. Individuals
frequently are writted from state custody to federal custody
to answer a federal indictment or complaint. When the
federal proceeding is concluded, the individual is returned
to state custody because “that individual is only on ‘loan’
from the state and must be returned to the state's custody
at the conclusion of the [federal] proceedings.” Delima v.
United States, 213 F.3d 625 (2d Cir.2000) (Table); see also
United States v. Sanchez–Abreu, No. 09 Cr 657(RMB),
2011 WL 1453814, at *2 (S.D.N.Y. Apr, 14, 2011) (federal
custody commences only when state authorities relinquish the
prisoner on satisfaction of the state obligation). In the normal
course, Henriquez will serve his federal sentence after New
York State relinquishes custody of him.
The “intention of the Federal sentencing court” was not, as
Henriquez puts it, that Henriquez “state sentence be served
concurrently with the Federal Sentence.” Letter from William
Henriquez (July 9, 2012). That may have been the intention
of the Justice of the New York Supreme Court; it was not my
intention. In light of Henriquez' extensive criminal record, I
sentenced him to 240 months, the statutory maximum, based
solely on his guilt of a nasty and dangerous set of crimes
that killed a victim, and without considering the New York
State criminal proceeding that lay ahead for him. It was
the Justice of the New York Supreme Court who sentenced
him to a concurrent term, not I, Henriquez will begin his
federal punishment after he is released by the New York
State Department of Corrections, and “commences to run on
the date on which the person is received at the penitentiary,
reformatory, or jail for service of the sentence.” 28 C.F.R. §
2.10.
*3 Henriquez complains that the federal Bureau of Prisons
should remove him from New York State detention and
transfer him to federal custody. The Bureau has discretion
to “direct the transfer of a prisoner from one penal or
correctional facility to another,” 18 U.S.C. § 3621(b), and
could have exercised that discretion to transfer Henriquez
from a New York State to a federal facility, or to designate
the state prison as a federal place of confinement for him, but
it is not required to do so, and it has not done so. Nor have I
required the Bureau to do so. Orders, May 24, 2010, March
25, 2011.
If he is not removed from state detention, Henriquez argues
that the Bureau of Prisons should give him credit for his
time in state custody when he does enter the federal system.
According to statute, he is entitled to credit only for his
“custody in connection with the offense or acts for which
sentence was imposed.” 28 C.F.R. § 2.10. The Bureau of
Prisons, however, has the authority to designate the state
prison as a federal place of confinement so that Henriquez
can serve his federal and state sentences concurrently-also
known as a nunc pro tunc designation. 18 U.S.C. §§ 3585(b),
3621(b); see also United States v. Luna–Reynoso, 258 F.3d
111, 117 (2d Cir.2001); McCarthy v. Doe, 146 F.3d 118, 122
(2d Cir.1998). A prisoner can challenge the refusal to grant
such a designation by a habeas corpus petition before he
enters federal custody, and a district court may review the
Bureau's denial for abuse of discretioa See Abdul–Malik v.
Hawk–Sawyer, 403 F.3d 72, 76 (2d Cir.2005) (“The decision
whether to designate a facility as a place of federal detention
is plainly and unmistakably within the BOP's discretion and
we cannot lightly second guess a deliberate and informed
determination by the agency charged with administering
federal prison policy”); Jennings v. Schult, 377 Fed, Appx. 97,
97–98 (2d Cir.2010) (citing McCarthy, 146 F.3d at 123 n. 4);
Mitchell v. Lara, No. 11 Civ. 1540(LBS), 2012 WL 1080290,
at *2 (S.D.N.Y. Apr. 2, 2012).
A prisoner who seeks review of the Bureau of Prisons' denial
of his nunc pro tunc designation request must first, however,
exhaust his administrative remedies. Setser v. United States,
132 S.Ct. 1463, 1473 (2012); Abdul–Malik, 403 F.3d at 73.
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Henriquez says that he requested and was denied a nunc pro
tunc designation of credit, but I have no record to show that.
Nor does Henriquez state whether he appealed the Bureau's
decision administratively. In the absence of such information,
my review of the issue would be premature.
If Henriquez wishes to proceed with this action after
exhausting his administrative remedies, he must file an
Amended Petition that (1) states that he is filing the Amended
Petition under § 2241; and (2) details what steps he has taken
to exhaust his administrative remedies within the Bureau of
Prisons or show that the available remedies are in some way
inadequate. The Amended Petition must replace the original
Petition and include the relevant facts, dates, and claims.
*4 Henriquez also may have state court remedies that
he must exhaust before suing for federal habeas corpus
relief. Henriquez must demonstrate that he has exhausted the
remedies available to him in the New York State courts, that
there is an absence of available New York State corrective
process, or that there are circumstances rendering a state
process ineffective to protect his rights. 28 U.S .C. § 2254(“(b)
(1) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that—(A) the applicant
has exhausted the remedies available in the courts of the State;
or (B)(i) there is an absence of available State corrective
process; or (ii) circumstances exist that render such process
ineffective to protect the rights of the applicant”).
Conclusion
The Petition is denied. The Clerk shall mark document
number 1 as having been terminated.
Because Petitioner has not at this time made a substantial
showing of a denial of a constitutional right, a certificate of
appealability will not issue, See 28 U.S.C. § 2253. The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this Order would not be taken in good faith and therefore
in forma pauperis status is denied for the purpose of an appeal.
See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
I should add, however, that the issue presented by Hennquez
is novel and complex and that (he Court of Appeals might
take a different view of the matter. See 28 U.S.C. § 2253.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 6739422
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Islam v. New York State Board of Parole, Not Reported in Fed. Supp. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 3943668
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Qissiys ISLAM, Petitioner,
v.
NEW YORK STATE BOARD
OF PAROLE, Respondent.
9:13-CV-00854 (GTS/TWD)
|
Signed 06/02/2016
Attorneys and Law Firms
QISSIYS ISLAM, 07-B-2668, Gouverneur Correctional
Facility, Scotch Settlement Road, P.O. Box 480, Gouverneur,
New York 13642, Petitioner pro se.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the
State of New York, Counsel for Respondent, 120 Broadway,
OF COUNSEL: ALYSON J. GILL, ESQ., LISA ELLEN
FLEISCHMANN, ESQ, Assistant Attorneys General, New
York, New York 10271
ORDER and REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
*1 This matter has been referred to the Court for Report
and Recommendation, pursuant to 28 U.S.C. § 636(b) and
Northern District Local Rule 72.3(c), by the Hon. Glenn T.
Suddaby, United States District Judge. Presently before this
Court is the July 19, 2013, Petition of Petitioner Qissiys Islam
seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254
against the New York State Board of Parole. (“Parole Board”)
(Dkt. No. 1.) The sole ground for habeas relief identified in
the Petition is the claim that Petitioner was being held beyond
his maximum sentence because of an error on the part of the
Parole Board in the calculation of jail time credit. 1 Id. at 4. 2
I. BACKGROUND
According to the Petition, Petitioner was convicted of a drug
charge in Onondaga County in June 2007 and sentenced to
three and a half year imprisonment followed by two and a
half years post-release supervision. Id. at 9. Petitioner was
released on parole to New Jersey in or about July 2009 and,
while still on parole, was arrested on drug and weapons
charges in New Jersey. Id. Petitioner has alleged in his Petition
that the Parole Board failed to properly credit his jail time
in New Jersey to the remainder of his New York sentence,
resulting in his being incarcerated beyond the maximum
expiration of his sentence. Id. at 11-12. The sole relief sought
by Petitioner is the immediate release from incarceration. Id.
at 4.
The Court learned through online Department of Corrections
and Community Supervision (“DOCCS”) inmate locator
records that the maximum expiration date on Petitioner's
sentence and on his post-release supervision was set at July
30, 3015. 3 According to the DOCCS inmate locator records,
Petitioner was released from incarceration on July 30, 2015,
the maximum expiration date of his sentence on the Onondaga
County drug conviction in 2007. 4
The Court has also learned through online DOCCS inmate
locator records that Petitioner was incarcerated in New York
again on September 21, 2015, on a new conviction on a
charge of criminal sale of a controlled substance, and he
is presently being housed in Wyoming Correctional Facility
under Department Identification Number 15-B-2846. 5
B. Court's April 20, 2016, Order
On April 20, 2016, the Court issued an Order directing
the Parole Board to file a written submission setting forth
the facts relevant to Petitioner's release from incarceration,
and the Board's position with regard to whether the Petition
was rendered moot by Petitioner's release and the expiration
of his maximum sentence. (Dkt. No. 10 at 3.) Petitioner
was directed to file a response setting forth his position on
the mootness issue within twenty-one days after the Parole
Board's submission. Id.
*2 On May 9, 2016, the Parole Board filed a Supplemental
Memorandum of Law in opposition to Petitioner's habeas
Petition in response to the Court's Order. (Dkt. No. 13.)
Petitioner has not filed a response, and the time within which
to do so under the Court's Order has expired with no request
for an extension having been filed by Petitioner.
C. The Parole Board's Supplemental Memorandum
According to the Parole Board, it recently learned from New
York State inmate records officials and counsel to the Division
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Islam v. New York State Board of Parole, Not Reported in Fed. Supp. (2016)
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of Parole that Petitioner was released to parole supervision
on or about January 9, 2014, nearly six months after he had
filed his habeas Petition. Id. at 4. Petitioner was subsequently
arrested in Onondaga County on or about December 16, 2014,
based on an indictment by an Onondaga County grand jury on
new criminal sale of a controlled substance sale charges. Id.
Petitioner was released a week later, likely because he made
bail, and on March 11, 2015, was taken into custody by New
York parole authorities on a parole warrant. Id. On April 23,
2015, following a final revocation hearing, Petitioner's parole
was revoked, and he was ordered to be held on his sentence
on the 2007 conviction until the maximum expiration date for
that sentence, July 30, 2015. Id. at 4-5.
According to the Parole Board Supplemental Memorandum,
Petitioner pleaded guilty to one count of third-degree criminal
sale of a controlled on May 20, 2015, in exchange for a
determinate three-year prison sentence in satisfaction of the
new 2014 charges. Id. at 5. Petitioner was sentenced to that
term on September 8, 2015, and is presently incarcerated
solely pursuant to that sentence under DIN number 15-
B-2846. Id.
II. ANALYSIS
Article III, Section 2 of the United States Constitution limits
the subject matter of the federal courts to those cases which
present a “case or controversy.” Spencer v. Kemna, 523 U.S.
1, 7 (1998). Thus, “in order for there to be a valid exercise of
subject matter jurisdiction, a federal court must have before
it an actual controversy at all stages of review, not simply at
the time it is filed.” In re Flanagan, 503 F.3d 171, 178 (2d
Cir. 2007) (citing Steffel v. Thompson, 415 U.S. 452, 459 n.
10 (1974)). “In general, if an event occurs while an [action]
is pending that renders it impossible for the court to grant any
form of effectual relief to plaintiff, the matter becomes moot
and subject matter jurisdiction is lost.” Id. (citing Altman v.
Bedford Cent. Sch. Dist., 245 F.3d 49, 69 (2d Cir. 2001));
Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983)
(“The hallmark of a moot case or controversy is that the relief
sought can no longer be given or is no longer needed.”).
In the context of a habeas petition, a petitioner no longer in
custody is required to demonstrate a “collateral consequence”
of the detention that can be remedied by granting the
writ. Spencer, 523 U.S. at 7. When a habeas petitioner
challenges the underlying criminal conviction, there is a
presumption that collateral consequences exist. Sibron v. New
York, 392 U.S. 40, 54-55 (1968) (cited in Spencer, 523 U.S.
at 10-12). However, where as in this case, the petitioner
is not challenging the validity of his underlying conviction
and his sentence has expired, collateral consequences
are not presumed, and the petitioner has the burden of
identifying some ongoing collateral consequence traceable to
the challenge. See Spencer, 523 U.S. at 14 (Supreme Court
declined to extend the presumption of collateral consequences
to a case involving habeas petitioner's challenge to a parole
revocation where he had finished serving entire sentence and
imposed burden on petitioner to affirmatively demonstrate
such consequences); U.S. v. Mercurris, 192 F.3d 290, 293
(2d Cir. 1999) (petitioner cannot rely upon the presumption
of collateral consequences arising from a criminal conviction
where he does not challenge his conviction, only his sentence
enhancement); Lewis v. New York, No. 08-CV-4978, 2012
WL 5419899, at *3 (E.D.N.Y. Nov. 6, 2012) 6 (a habeas
petitioner no longer in custody is required to establish the
existence of a concrete and continuing injury that is a
collateral consequence of the detention and can be remedied
by granting the writ).
*3 Where a habeas petitioner attacks only his sentence and
not the conviction, his sentence has been fully served, and
there are no collateral consequences that could be eliminated
by a successful attack on the sentence, the case is moot. Lane
v. Williams, 455 U.S. 624, 631 (1982); Roache v. Connell,
No. 06 Civ. 3567 (WHP)(RLE), 2012 WL 589670, at *4
(N.D.N.Y. Feb. 22, 2012) (habeas challenge to calculation of
sentence moot where sentence had expired and petitioner was
no longer in custody); Reid v. Superintendent, Altona Corr.
Facility, 9:09-CV-0820, 2010 WL 4962990, at *3 (N.D.N.Y.
Dec. 1, 2010) (habeas petitioner's claim that sentence had
been improperly calculated found to be moot where petitioner
had been released to parole and his sentence appeared to
have expired). Habeas claims involving the calculation of
credits for time in custody have been found moot following
the petitioner's release from incarceration. See, e.g., Ruddy v.
Bocaud, No. 08-CV-1319 (LEK), 2009 WL 5030790, at *3
(N.D.N.Y. Dec. 14, 2009) (habeas petitioner's challenge to
sentencing credit given for time he service while on probation
found to be moot where sentence had expired and there was
no showing of collateral consequences); Patterson v. Smith,
No. 5:10 CV 1825, 2011 WL 2144561, at *2 (N.D. Ohio May
31, 2011) (“The calculation of jail time credit to a sentence
already served is not a collateral consequence....”)
In its Supplemental Memorandum, the Parole Board takes
the position that Petitioner's claim that he is entitled to about
two month's jail credit toward his 2007 New York sentence
is moot now that his sentence has expired, he suffers no
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Islam v. New York State Board of Parole, Not Reported in Fed. Supp. (2016)
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continuing injury that is a collateral consequence of his
detention, and there is nothing the Court can do to remedy
any improper calculation because there are no days left on
the sentence to credit. (Dkt. No. 13 at 5-6.) The Court's
April 20, 2016, Order provided Petitioner the opportunity to
assert the existence of collateral consequences in this case and
argue against a finding of mootness, and he has declined that
opportunity. Therefore, finding the Parole Board's reasoning
on the question of mootness to be sound and in accord
with judicial precedent cited herein, the Court recommends
that Petitioner's habeas Petition be denied and dismissed on
mootness grounds.
ACCORDINGLY, it is hereby
RECOMMENDED that Petitioner's habeas Petition (Dkt.
No. 1) be DENIED and DISMISSED AS MOOT; and it is
hereby
ORDERED, that the Clerk's Office serve a copy of this Order
and Report-Recommendation on Petitioner at Wyoming
Correctional Facility, 3203 Dunbar Road, P.O. Box 501,
Attica, New York 14011-0501, and provide Petitioner with
copies of all unpublished decisions cited herein in accordance
with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam). 7
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health
& Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.
All Citations
Not Reported in Fed. Supp., 2016 WL 3943668
Footnotes
1 Petitioner has not challenged the two and a half years post-release supervision sentence imposed on the
Onondaga County drug charge. (See generally Dkt. No. 1.)
2 Page references to documents identified by docket number are to the numbers assigned by the CM/ECF
docketing system maintained by the Clerk's Office.
3 See http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ2/WINQ130, last visited May 31, 2016.
4 Id.
5 Id.
6 Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
7 Because Petitioner has not filed a change of address since his release from Gouverneur Correctional Facility
(“Gouverneur”), the Docket maintained by the Clerk's Office continues to list his address as Gouverneur. The
DOCCS inmate locator list, however, lists Petitioner's present place of confinement as Wyoming Correctional
Facility.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Johansson v. Strada, Not Reported in F.Supp.2d (2012)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 6093534
Only the Westlaw citation is currently available.
NOT FOR PRINT OR ELECTRONIC PUBLICATION
United States District Court,
E.D. New York.
Erik JOHANSSON, Petitioner,
v.
Frank STRADA, Respondent.
No. 12–CV–5296 (ARR).
|
Dec. 7, 2012.
Attorneys and Law Firms
Erik Johansson, Hartford, CT, pro se.
Kenji Marcel Price, United States Attorney's, Brooklyn, NY,
for Respondent.
OPINION AND ORDER
ROSS, District Judge.
*1 Petitioner Erik Johansson (“Petitioner”) files this habeas
petition pursuant to 28 U.S.C. § 2241, see Dkt. # 1. On
November 9, 2012, the court ordered respondent to show
cause why the petition should not be granted, Dkt. # 3.
Respondent submitted a response on December 3, 2012, Dkt.
# 7. While the response was pending, petitioner sent the court
a letter asking for an immediate ruling and informing the court
that he “will not be responding to the government's order
to show cause,” Dkt. # 8. While petitioner would ordinarily
have an opportunity to reply to respondent, the court will
consider the petition fully briefed in deference to petitioner's
wishes and proceed to rule on the petition. Accordingly, for
the reasons stated below, the petition is denied.
BACKGROUND
I. Facts
Petitioner was convicted in the District of Rhode Island of
one count of manufacturing 100 or more marijuana plants
in violation of 21 U.S.C. § 841, and sentenced to eighteen
months in custody and four years of supervised release. Dkt.
# 1, Ex. 1, at 1; Dkt. # 7, at 3. Petitioner was transferred to the
Metropolitan Detention Center (“MDC”) Brooklyn in June of
this year. Dkt. # 1, at 1; Dkt. # 7, at 3. Petitioner claims that
after his arrival at the MDC, he was informed that he would be
eligible for home confinement on November 11, 2012, Dkt.
# 1, at 2. He also says that on July 20, 2012, he was told
by the “Unit Team” at the MDC that the Bureau of Prisons
(“BOP”) had determined that petitioner should spend ninety
to 120 days at a halfway house and in home detention to serve
out the end of his term of incarceration. Id. At the time of the
filing of the petition, petitioner was scheduled to be released
on January 4, 2013, assuming he received all of his remaining
good time credit. Dkt. # 1, at 2. 1 Consequently, according to
petitioner, he should have been released from the MDC to a
halfway house on either September 6 or October 6, 2012. Id.
The declaration of Deidre Butts, a unit manager at the
MDC who is part of the team that makes recommendations
for placement at a Residential Reentry Center (“RRC”),
tells a slightly different story. According to Butts, petitioner
requested at the July 20, 2012, meeting that he be able to
transfer the district of his supervised release from the district
of Rhode Island to the District of Connecticut. Dkt. # 7, Ex.
B, Butts Deck, at 2. The Unit Team at MDC discussed with
petitioner “a possible RRC placement of 90–120 days ...,
depending on whether the United States Probation Office
approved the relocation and whether BOP had sufficient time
to process this referral.” Id. (emphasis added).
Petitioner alleges that the Unit Team then inexplicably
delayed sending out his relocation packet, requiring him to
meet with them three times and sign multiple relocation
documents. Dkt. # 1, at 2. He filed a Request for Informal
Resolution on August 26, 2012, complaining about the Unit
Team's “unexplained and detrimental delays.” Dkt. # 1, Ex.
3. The Unit Team subsequently submitted a relocation packet
to the United States Probation Office on or about August 27,
2012. Butts Decl., at 2. On September 4, 2012, petitioner filed
a Request for Administrative Remedy with the MDC Warden,
who is respondent in this case, complaining that “an entire
month has been squandered by relocation papers not leaving
Brooklyn MDC.” Dkt. # 1, Ex. 4. The Warden responded
on September 17, 2012, denying petitioner's request for
relief, and explaining that the prison was still waiting for
a response from the United States Probation Office in the
District of Connecticut. Dkt. # 1, Ex. 5. The Warden's letter
also explained that petitioner could appeal this decision to the
Regional Director of the Federal Bureau of Prisons. Id.
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Johansson v. Strada, Not Reported in F.Supp.2d (2012)
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*2 On October 1, 2012, the Probation Office in the District
of Connecticut accepted supervision of petitioner at his
proposed release address in Southbury, Connecticut. Butts
Decl. Ex. 3. Petitioner filed the instant petition on October
3. Dkt. # 1, at 6. 2 On or about October 4, the Unit
Team conducted an individualized assessment of petitioner's
prospects for RRC placement. Butts. Decl. at 2. The Team
recommended that petitioner be placed in home confinement
on December 5, 2012. Butts Decl. at 3; id., Ex. 1.
II. Statutory Framework
The transfer of inmates to RRCs prior to their release is
governed by 18 U.S.C. § 3624(c)(1), as amended by the
Second Chance Act of 2007, Pub.L. No. 110–199, 122 Stat.
657 (2008). See generally Thomas v. Terrell. No. 10–CV–
512, 2012 WL 1745434, at *1 (E.D.N.Y. May 15, 2012). This
statute provides as follows:
The Director of the Bureau of Prisons
shall, to the extent practicable, ensure
that a prisoner serving a term of
imprisonment spends a portion of the
final months of that term (not to exceed
12 months), under conditions that
will afford that prisoner a reasonable
opportunity to adjust to and prepare
for the reentry of that prisoner in
the community. Such conditions may
include [an RRC].
18 U.S.C. § 3624(c)(1) (emphasis added). The Second
Chance Act increased the maximum period of pre-release
RRC placement from six to twelve months. However, “the
BOP retains discretion under the Second Chance Act to
decide whether and when an inmate should be placed
at an RRC.” Fournier v. Zickefoose, 620 F.Supp.2d 313,
318 (D.Conn.2009) (internal quotation marks omitted);
OwusuSakvi v. Terrell, No. 10–CV–507 (KAM), 2010 WL
3154833, at *5 (E.D.N.Y. Aug.9, 2010). In exercising its
discretion over inmate placements and transfers, the BOP
must consider five individualized factors enumerated in 18
U.S.C. § 3621(b). OwusuSakyi, 2010 WL 3154833, at *5; see
§ 3624(c)(4) (“Nothing in this subsection shall be construed
to limit or restrict the authority of the Director of the Bureau
of Prisons under section 3621.”). Those factors are:
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence-
(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility
as appropriate; and
(5) any pertinent policy statement issued by the Sentencing
Commission pursuant to section 994(a)(2) of title 28.
18 U.S.C. § 3621(b).
On October 21, 2008, the BOP issued a regulation to ensure
that its pre-release placements conform to the Second Chance
Act. See PreRelease Community Confinement, 73 Fed.Reg.
62443 (Oct. 21, 2008) (codified at 28 C.F.R. § 570.22). The
regulation provides: “Inmates will be considered for pre-
release community confinement in a manner consistent with
18 U.S.C. section 3621(b), determined On an individual basis,
and of sufficient duration to provide the greatest likelihood of
successful reintegration into the community, within the time-
frames set forth in this part.” 28 C.F.R. § 570.22.
DISCUSSION
I. Section 2241 and Exhaustion of Administrative Remedies
*3 A petition challenging the manner of execution of an
inmate's sentence is properly brought pursuant to 28 U.S.C.
§ 2241. See Carmona v. U.S. Bureau of Prisons, 243 F.3d
629, 632 (2d Cir.2001); see also United States v. Arthur,
367 F.3d 119, 122 (2d Cir.2004) (finding that the court had
jurisdiction to review § 2241 challenge to BOP policy brought
by prisoner then on bail). Challenges to the execution of a
sentence typically include matters such as “prison transfers,
type of detention and prison conditions.” Jiminian v. Nash,
245 F.3d 144, 146 (2d Cir.2001).
However, federal prisoners must exhaust their administrative
remedies before filing a petition for habeas corpus
relief in federal court. Carmona. 243 F.3d at 634. The
requirement of exhaustion regarding § 2241 is “prudential,
not statutory.” Pimentel v. Gonzalez, 367 F.Supp.2d 365, 371
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Johansson v. Strada, Not Reported in F.Supp.2d (2012)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
(E.D.N.Y.2005). The purposes of the exhaustion requirement
include “protecting the authority of administrative agencies,
limiting interference in agency affairs, developing the factual
record to make judicial review more efficient, and resolving
issues to render judicial review unnecessary.” Beharry v.
Ashcroft, 329 F.3d 51, 62 (2d Cir.2003). “Failure to exhaust
administrative remedies results in a procedural default, which
bars judicial review unless the petitioner persuades the Court
that the failure to exhaust should be excused.” Rosenthal
v. Killian, 667 F.Supp.2d 364, 366 (S.D.N.Y.2009) (citing
Carmona, 243 F.3d at 634). A court may excuse the failure
to exhaust administrative remedies when it determines that
exhaustion would have been futile. Id.
A federal inmate challenging the conditions of his
confinement must follow the Administrative Remedy
Program developed by the BOP. Id. (citing 28 C.F.R. §§
542.10. 19). This program has four steps, each of which must
be exhausted: (1) attempt to resolve the issue informally; (2)
submit a formal written Administrative Remedy Request to
the institution; (3) appeal any unfavorable decision by the
institution to the Regional Director of the BOP; and (4) appeal
any unfavorable decision by the Regional Director to the
BOP's General Counsel. Id.
Here, petitioner attempted to resolve the issue informally and
submitted a formal written Administrative Remedy Request
to the institution. However, the record indicates he did not
appeal the Warden's unfavorable decision to the Regional
Director, nor did he appeal to the BOP's general counsel.
See Dkt. # 7, Ex. A, Bork Decl., at 3. Petitioner asserts that
“further administrative appeals will be futile” because “the
halfway house period is presently lapsing,” and, if there is
any additional delay, “BOP will have rendered meaningless
its decision that Petitioner is entitled to 90 to 120 days for his
release plan.” Dkt. # 1, at 3.
Petitioner's futility argument-and his claim more generally-
appears to be based on two misunderstandings: First, he
interpreted the Unit Team's discussions with him about a
“possible” RRC placement 90 to 120 days prior to his release
date to be a guaranteed “grant” of such placement. Id. at
2. Second, he understood his “home confinement eligibility
date” to be November 11, 2012, id., when, in fact, the Unit
Team recommended a date of December 5, 2012, Butts Decl.
at 3. Because petitioner's Request for Administrative Remedy
was denied on September 17, 2012, it was not futile at that
time to appeal the decision to the Regional Director. Although
petitioner likely would not have prevailed in his appeal due to
the fact that his mistook the Unit Team's representations as a
guarantee of RRC placement, the unlikelihood of success of
a claim “is not tantamount to stating that it would have been
futile to raise it.” Beharry, 329 F.3d at 62.
II. Merit s of Petitioner's Claim
*4 Nevertheless, even assuming that petitioner's failure
to exhaust administrative remedies is excused for futility,
his claim fails on the merits. “It is well-established that ‘a
prisoner has no constitutional right to serve a sentence in any
particular institution or to be transferred (or not transferred)
from one facility to another.’ ” Thomas, 2012 WL 174534, at
*3 (quoting Bennett v. Terrell, No. 10–CV–1029 (ENV)(LB),
2010 WL 1170134, at *1 (E.D.N.Y. Mar. 24, 2010)). Not
only does the BOP have the authority to designate the place
of confinement for federal prisoners, “the BOP's discretion
in making prisoner classifications is ‘virtually unfettered.’ ”
Bennett, 2010 WL 1170134, at *1 (quoting Hudson v. Lindsay,
No. 08–CV–4658 (DLI), 2008 WL 4998395, at *1 (E.D.N.Y.
Nov.19, 2008)). Because of this, “the Court ‘has no authority
to order that a convicted defendant be confined in a particular
facility.’ ” Id. (quoting United States v. Williams, 65 F.3d 301,
307 (2d Cir.1995)).
Specifically, under the Second Chance Act, “the BOP may
place a prisoner where it wishes, so long as it considers
the factors enumerated in § 3621.” Mueses v. Terrell, No.
10–CV–1701 (SLT), 2010 WL 4365520, at *4 (E.D.N.Y.
Oct.27, 2010) (quoting Levine v. Apker, 455 F.3d 71, 82
(2d Cir.2006)); see Owusu–Sakyi, 2010 WL 3154833, at *5
(explaining broad discretion afforded BOP under language
and legislative history of Second Chance Act). Therefore,
“[a]t best, if a federal inmate can demonstrate that the BOP
failed to consider the § 3621(b) factors and instead applied
an invalid regulation in reaching its determination, the Court
could order the agency to make a new determination in
compliance with 18 U.S.C. § 3621.” Thomas, 2012 WL
174535, at *3 (internal quotation marks omitted). To issue
such an order, the court would have to find that the BOP
abused its discretion. Mueses. 2010 WL 4365520, at *4
(finding no abuse of discretion where, based on statutory
factors, MDC Unit Team recommended RRC placement for
sixty-three to ninety-two days, rather than one year).
Here, the Unit Team considered the statutory factors and
found:
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Johansson v. Strada, Not Reported in F.Supp.2d (2012)
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(1) [ ] there are community based
resources available in petitioner's
releasing area; (2) Petitioner was
convicted of manufacture of 100 or
More Marijuana Plants. [Petitioner's
residence was searched and 183
marijuana plants were recovered; (3)
[Petitioner] is a 49 year old offender
serving a term of 18 months with 4
years supervised release. [Petitioner]
has a High School Diploma with
some college. For 2 years prior to his
arrest, [Petitioner] operated marijuana
ministry out of the renovated church
where he resided. Prior to the ministry
[Petitioner] was self-employed as a
construction worker. He has secured
residence but will need assistance in
seeking employment, (4) no statement
of the court, and (5) no pertinent
policy statement issued by the U.S.
Sentencing Commission.
*5 Butts Decl. at 3 (internal quotation marks omitted)
(alterations in original). Based on these findings, the Unit
Team recommended RCC placement in the District of
Connecticut, as petitioner requested. Id Petitioner's frustration
with what he perceives as BOP's delays in transferring him to
RCC is understandable, but petitioner has not demonstrated
any failure by BOP “to consider the proper factors” or
application of “any invalid regulation” that would warrant
habeas relief. Bennett, 2010 WL 1170134, at *1. Accordingly,
not only can “this Court [ ]not order the BOP to transfer
the petitioner to an RCC,” Thomas. 2012 WL 174535, at *3,
but this court also sees no basis for finding that BOP abused
its discretion, such that a reconsideration of petitioner's
placement would be warranted.
CONCLUSION
For the foregoing reasons, the petition is denied. Because
petitioner has failed to make a “substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2),
the court declines to issue a certificate of appealability.
In addition, this court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal would not be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.Ct.
917, 8 L.Ed.2d 21 (1962). The Clerk of the Court is directed
to enter judgment and to close the case.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 6093534
Footnotes
1 Because of a rule infraction, petitioner's good-time release date is now January 12, 2013. Dkt. # 7, Ex. A, at 2.
2 The petition was filed with the court on October 19, 2012, but petitioner's signature indicates he submitted
the petition on October 3. Dkt. # 1, at 1, 6.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lane v. Zickefoose, Not Reported in F.Supp.2d (2008)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2008 WL 5467824
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Amber LANE, Petitioner,
v.
Donna ZICKEFOOSE, Respondent.
No. 3:08–CV–567RNC.
|
Dec. 30, 2008.
West KeySummary
1 Habeas Corpus Prisons; conditions,
discipline, transfer, etc
Federal inmate's petition for writ of habeas
corpus was dismissed as procedurally defaulted
for failure to exhaust her administrative
remedies. She had submitted an administrative
remedy request to the warden after the twenty
day deadline and failed to request an extension.
Furthermore, she failed to appeal the denial by
the warden of her administrative request within
the next twenty days. She could not point to any
circumstances beyond her control that prevented
her from appealing the warden's denial of relief.
28 U.S.C.A. § 2241; 28 C.F.R. §§ 542.14(a),
542.15(a).
1 Case that cites this headnote
Attorneys and Law Firms
Amber Lane, Danbury, CT, pro se.
Ndidi N. Moses, U.S. Attorney's Office, New Haven, CT, for
Respondent.
RULING AND ORDER
ROBERT N. CHATIGNY, District Judge.
*1 Petitioner, a federal inmate proceeding pro se, brings
this action under 28 U.S.C. § 2241 against the Warden of the
Federal Correctional Institution in Danbury (“FCI Danbury”)
claiming that she is entitled to early release based on her
successful completion of the Bureau of Prisons' residential
drug abuse treatment program. The Warden opposes the
petition on various grounds, including petitioner's failure to
exhaust administrative remedies. I agree that the petition
must be dismissed due to petitioner's failure to exhaust
administrative remedies and therefore do not reach any other
issue raised by the petition.
I. Background
On July 6, 2007, petitioner was sentenced in the United
States District Court for the Middle District of Pennsylvania
to a term of imprisonment of thirty months after pleading
guilty to conspiracy to distribute, and possession with intent
to distribute, cocaine and cocaine base in violation of 21
U.S.C. § 846(b)(1)(B). 1 The Court adopted the Presentence
Investigation Report (“PSR”) without modification. The PSR
states that petitioner assisted in the purchase of firearms
for her coconspirators and that the firearms were kept
in several locations including petitioner's grandmother's
house. Because petitioner could reasonably foresee her co-
conspirators' possession of firearms in connection with the
conspiracy, the PSR recommended a two-level enhancement
pursuant to U.S.S.G. § 2D1.1(b)(1), which provides for
such an enhancement “[i]f a dangerous weapon (including a
firearm) was possessed.” See Doc. # 13, Ex. 1 at ¶¶ 5, 7.
The BOP provides residential substance abuse treatment to
eligible inmates in accordance with 18 U.S.C. § 3621(b) and
(e). An inmate who successfully completes all phases of the
treatment program and meets all other eligibility requirements
may receive early release of up to 12 months pursuant to
18 U.S.C. § 3621(e)(2)(B). Early release is not available
to certain categories of inmates, including inmates whose
current offense is a felony involving possession of a firearm.
See 28 C.F.R. § 550.58(a)(1)(vi)(B); BOP Program Statement
5330.10, Drug Abuse Program Manual, Inmate, § 6.1. When
petitioner was accepted into the program, she was notified that
she would not be eligible for early release. See Doc. # 13, Ex.
1 at ¶ 8 & Ex. 1–C.
On September 13, 2007, petitioner submitted an
Administrative Remedy form to the Warden challenging the
determination that she was not eligible for early release.
Her complaint was rejected as untimely because she did
not submit it within twenty days of the denial of early
release as required by 28 C.F.R. § 542.14(a). Petitioner
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Lane v. Zickefoose, Not Reported in F.Supp.2d (2008)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
did not re-submit the Administrative Remedy Form with
an explanation of the reason for the delay. See Doc. # 13,
Ex. 1 at ¶¶ 13–15 & attached documents, Ex. 1–D & 1–
E. Instead, she filed this petition seeking early release. The
petition relies on a recent Ninth Circuit decision holding
that the BOP regulation categorically excluding from early
release prisoners convicted of offenses involving possession
of firearms violates the Administrative Procedure Act, 5
U.S.C. § 706(2)(A). See Arrington v. Daniels, 516 F.3d 1106
(9th Cir.2008) (invalidating 28 C.F.R. § 550.58(a)(1)(vi)(B)).
II. Discussion
*2 Federal inmates must exhaust administrative remedies
before filing a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241. See Carmona v. United States Bureau
of Prisons, 243 F.3d 629, 634 (2d Cir.2001). The exhaustion
requirement's purposes include “protecting the authority
of administrative agencies, limiting interference in agency
affairs, developing the factual record to make judicial review
more efficient, and resolving issues to render judicial review
unnecessary.” Beharry v. Ashcroft, 329 F.3d 51, 62 (2d
Cir.2003).
The administrative process provided to federal inmates by the
BOP consists of four steps: informal resolution with staff, 28
C.F.R. § 542.13(a); a written administrative remedy request
to the Warden submitted within twenty calendar days of
the event underlying the request, 28 C.F.R. § 542.14(a); an
appeal to the Regional Director of the BOP within twenty
calendar days of the denial of relief by the Warden, 28 C.F.R.
§ 542.15(a); and an appeal to the General Counsel's Office
within thirty calendar days of the denial of relief by the
Regional Director. Id. The time limits at any level of review
may be extended for a valid reason. 28 C.F.R. §§ 542.14(b),
542.15(a).
Petitioner did not comply with this process. She submitted an
administrative remedy request more than twenty days after
she was denied early release, failed to seek an extension of
time to file the request, and failed to appeal to the Regional
Director within twenty days of the denial of relief by the
Warden.
Failure to timely exhaust administrative remedies results
in a procedural default, which precludes judicial review of
the defaulted claim unless the inmate is able to justify the
failure to exhaust. See Carmona, 243 F.3d at 634. Petitioner
contends that her failure to exhaust should be excused because
her counselor incorrectly advised her that the matter would
be resolved at the informal resolution phase and she was
unaware that the time to file the administrative remedy request
expired while she was waiting for an informal resolution to
occur. Petitioner states that she abandoned the administrative
process because she was advised that the Regional Director
would agree with the Warden's determination that the
administrative remedy request she filed was untimely. See
Doc. # 10 at 8.
When legitimate circumstances beyond an inmate's control
preclude her from fully pursuing administrative remedies, a
court may be able to excuse the default. See Carmona, 243
F.3d at 634. That is not the situation here. Even assuming
petitioner's initial failure to file a timely administrative
review request could be excused if she reasonably relied on
incorrect advice provided by her counselor, she points to
no circumstance beyond her control that prevented her from
appealing the Warden's denial of relief. Petitioner's belief that
the Regional Director would agree with the Warden does not
justify her procedural default. See Murray v. Carrier, 477 U.S.
478, 488 (1986) (“[T]he existence of cause for a procedural
default must ordinarily turn on whether the prisoner can show
that some objective factor external to the defense impeded ...
efforts to comply with the ... procedural rule.”).
III. Conclusion
*3 Accordingly, the petition is hereby denied. Because
reasonable jurists would not find it debatable that petitioner
failed to exhaust her administrative remedies, a certificate of
appealability will not issue. See Slack v. McDaniel, 529 U.S.
473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
So ordered
All Citations
Not Reported in F.Supp.2d, 2008 WL 5467824
Footnotes
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Lane v. Zickefoose, Not Reported in F.Supp.2d (2008)
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1 Petitioner's sentence has been reduced to twenty-four months based on retroactive application of the Crack
Cocaine Sentencing Guideline Amendment. Her expected release date is April 24, 2009. See Doc. # 9, Ex.
1 at ¶¶ 4–5.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lugo v. Hudson, Not Reported in Fed. Supp. (2014)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 11350815
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Daniel LUGO, Petitioner,
v.
D. HUDSON, Respondent.
9:13-CV-0753 (GTS)
|
Signed 06/16/2014
Attorneys and Law Firms
DANIEL LUGO, 67190-053, FCI Ray Brook, P.O. Box 900,
Ray Brook, NY 12977, Petitioner, pro se.
OFFICE OF THE UNITED STATES ATTORNEY, P.O. Box
7198, 100 S. Clinton Street, OF COUNSEL: CHARLES E.
ROBERTS, AUSA, Syracuse, New York 13261-7198.
DECISION AND ORDER
GLENN T. SUDDABY, United States District Judge
I. INTRODUCTION
*1 Petitioner Daniel Lugo seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Dkt. No. 1, Petition (“Pet.”);
Dkt. No. 1–1, Memorandum of Law in Support of Petition
for a Writ of Habeas Corpus Under 28 U.S.C. § 2241
(“Mem.”). On October 29, 2002, petitioner was sentenced
in the United States District Court for the Eastern District
of New York to serve an aggregate term of ten years
in prison and five years supervised release following his
conviction for conspiracy to commit murder in violation of
18 U.S.C. § 1959(a)(5). Pet. at 1; see United States v. Lugo,
No. 1:01–CR–0922, Dkt. No. 218, Judgment in a Criminal
Case. Petitioner does not contest his conviction. Rather, he
asserts that the Federal Bureau of Prisons (“BOP”) incorrectly
calculated his sentence. See Pet.; Dkt. No. 7, Supplement to
Petition (“Supp.”). 1 Respondent opposes the petition. Dkt.
No. 10, Response to Petition for Writ of Habeas Corpus
(“Response”); Dkt. No. 10–1, Unpublished Cases; Dkt. No.
10–2, Declaration of Bryan Erickson (“Erickson Dec.”);
Dkt. No. 10–3, Exhibits to Erickson Dec. (“Exhibits”). On
November 18, 2013, petitioner filed a reply. Dkt. No. 11,
Reply to Response to Petition for Writ of Habeas Corpus
(“Reply”). For the reasons that follow, the petition is denied
and dismissed.
II. BACKGROUND
The following factual summary is derived from the petition,
respondent's answer, and the records provided by both parties.
On February 4, 2000, petitioner was sentenced in New York
County to serve an aggregate term of six to twelve years in
a New York State correctional facility for his conviction of
criminal possession of a controlled substance and conspiracy
charged in two separate state indictments. Dkt. No. 10–2,
Erickson Dec., ¶¶ 5–6; Dkt. No. 10–3, Exhibit B, Sentence
and Commitment Orders, New York County Supreme Court.
On March 8, 2000, petitioner began serving his state sentence.
He received 98 days of prior custody credit toward his state
sentence December 1, 1999 to March 7, 2000. Dkt. No. 10–
2, Erickson Dec. at ¶ 7; Dkt. No. 10–3, Exhibit A, Sentence
Monitoring, Independent Sentence Computation.
On October 18, 2001, an Assistant United States Attorney
applied for a federal writ of habeas corpus ad prosequendum
to secure petitioner's appearance in the Eastern District of
New York for arraignment on Indictment Number 1:01–CR–
0922, charging him with conspiracy to commit murder. Dkt.
No. 10–2, Erickson Dec. at ¶ 8; Dkt. No. 10–3, Exhibit C,
Application for Writ of Habeas Corpus, Oct. 4, 2001. The writ
was issued on October 4, 2001, and it specified that petitioner
was to be produced for arraignment and thereafter maintained
“within the jurisdiction of” the issuing federal court “pending
the satisfaction of this writ or the future orders of the Court.”
Dkt. No. 10–3, Exhibit C at 1.
*2 On October 29, 2002, petitioner was sentenced in the
Eastern District of New York to serve ten years in prison
and five years supervised release upon his conviction for
conspiracy to commit murder. Dkt. No. 10–3, Exhibit D,
Judgment in a Criminal Case. The district court ordered
the federal sentence to run consecutively to petitioner's
New York state sentence. Id. at 2. On November 14,
2002, the United States Marshals Service in the Eastern
District of New York returned petitioner to the custody of
the New York Department of Corrections and Community
Supervision (“DOCCS”), and lodged the federal judgment
and commitment order as a detainer. Dkt. No. 10–2, Erickson
Dec. at ¶ 10; Dkt. No. 10–3, Exhibit E, Individual Custody
and Detention Report, USM 129, at 2, Status History.
On October 31, 2008, petitioner was released from DOCCS
custody into the custody of the United States Marshals
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Service in this district to begin serving his federal sentence.
Dkt. No. 10–3, Exhibit E, Individual Custody and Detention
Report, USM 129. The BOP calculated petitioner's sentence
and determined that it commenced on October 31, 2008, with
a projected release date of September 3, 2017. Dkt. No. 10–
2, Erickson Dec. at ¶ 4; Dkt. No. 10–3, Exhibit G, Sentencing
Computation Monitoring Data.
On January 7, 2013, petitioner filed an Informal Resolution
request at FCI Ray Brook in which he argued that when his
federal sentence was imposed on October 29, 2002, he was
ordered committed to the custody of the BOP but instead,
the United States Marshals Service took him to DOCCS.
Petitioner argued that, as a result, his federal sentence expired
and he was entitled to release. Dkt. No. 1 at 24, Informal
Resolution. On January 14, 2013, his request for relief was
denied because the facility determined petitioner “cannot get
credit that was credited to another sentence,” and “[t]ime
spent borrowed on a writ from state custody is not credit.”
Dkt. No. 1 at 25, Handwritten Answer.
On January 24, 2013, petitioner filed a Request for
Administrative Remedy in which he raised the same
arguments. Dkt. No. 1 at 22, Request for Administrative
Remedy. In a response dated February 15, 2013, Warden D.
Hudson denied petitioner's request. Dkt. No. 1 at 23, Part
B–Response, Feb. 15, 2013. He explained that the BOP was
prohibited from commencing petitioner's federal sentence on
October 29, 2002, the date it was imposed, because the district
court ordered the sentence to run “consecutive with the state
court sentence” imposed on February 4, 2000. Id. Warden
Hudson further explained that on October 18, 2001, petitioner
was temporarily removed from state custody “on a federal
writ for [his] current 10 year term of imprisonment,” that on
November 14, 2002, he was returned to state custody and the
“federal sentence was lodged as a detainer with N.Y. state
authorities,” and that on October 31, 2008, petitioner was
paroled on the state sentence, and his “consecutive federal
sentence commenced” on that date. Id. Warden Hudson also
explained that under BOP Program Statement 5880.28:
time spent in custody under a writ
of habeas corpus from non-federal
custody will not in and of itself be
considered for the purpose of crediting
presentence time. The primary reason
for 'writ' custody is not the federal
charge. The federal court merely
'borrows' the prisoner under the
provisions of the writ for secondary
custody.
Id. (quoting Program Statement 5880.28). Warden Hudson
concluded that “[s]ince the period of time [petitioner was]
requesting was credited to another sentence, it cannot be
applied” to petitioner's federal sentence. Id. (referencing 18
U.S.C. § 3585(b) and Program Statement 5880.28).
On February 23, 2013, petitioner filed a Regional
Administrative Remedy Appeal. Dkt. No. 1 at 20, Regional
Administrative Remedy Appeal. Petitioner argued that the
federal district court ordered that he be committed to the
custody of the BOP for ten years to run consecutive with
his state sentence, and remanded him to the custody of the
United States Marshals Service. Id. He claimed that because
the Marshals Service transported him to DOCCS, they did
not obey the federal court's order. Id. According to petitioner,
after he completed his federal sentence, he was then supposed
to be returned to DOCCS to continue serving his state
sentence. Id. He argued that his federal sentence was “still
running” while he was in DOCCS custody, and had expired.
Id.
*3 On March 28, 2013, petitioner's appeal was denied.
Dkt. No. 1 at 21, Part B–Response. Regional Director J.L.
Norwood explained that petitioner was in primary state
custody when he was produced in federal court “via a federal
Writ of Habeas Corpus ad Prosequendum.” Id. Norwood
explained that the federal court ordered his sentence to
run consecutively to petitioner's state sentence; New York
had primary custody over petitioner until he completed
his state sentence on October 31, 2008; petitioner's federal
sentence began upon his release from state custody; and
petitioner's “production for federal prosecution via a federal
writ did not shift primary jurisdiction from the state.” Id.
Finally, Norwood explained that the period of time for which
petitioner sought credit against his federal sentence was
credited to his state sentence, and could not be awarded twice.
Id. (citing 18 U.S.C. § 3585(b)).
On April 12, 2013, petitioner filed a Central Office
Administrative Remedy Appeal. Dkt. No. 1 at 18, Central
Office Administrative. Remedy Appeal. He raised the same
arguments he presented in his regional appeal, but also argued
that because the district court did not stay his federal sentence,
it began to run when the district court committed him to the
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custody of the Marshals Service and had therefore expired.
Id. On May 22, 2013, his appeal was denied. Dkt. No. 1 at 19,
Administrative Remedy No. 721266–A1, Part B–Response.
On May 8, 2013, petitioner filed another Informal Resolution
request in which he asserted that there was never a writ
of habeas corpus ad prosequendum issued to take him into
federal custody on October 18, 2001. He argued that his
federal sentence therefore began to run on October 18, 2001,
and was expired. Dkt. No. 1 at 14, Informal Resolution.
Petitioner did not receive a response, and on May 28, 2013,
he filed a Request for Administrative Remedy repeating
this argument. Dkt. No. 1 at 11, Request for Administrative
Remedy; Dkt. No. 7–1 at 6, Request for Administrative
Remedy. He also claimed that he was in exclusive federal
custody from October 18, 2001 to October 29, 2002, and that
counting forward from either date, his federal sentence was
satisfied. Dkt. No. 1 at 11; Dkt. No. 7–1 at 6.
On June 18, 2013, petitioner's request for an administrative
remedy was denied. Dkt. No. 7–1 at 7, Request for
Administrative Remedy, Part B–Response. Warden D.
Hudson explained that the issues raised in petitioner's papers
were resolved in previous administrative remedy filings,
and petitioner presented “no new information that would
warrant further review.” Id. On June 25, 2013, petitioner
filed a Regional Administrative Remedy Appeal. Dkt. No.
7–1 at 8, Regional Administrative Remedy Appeal. On July
31, 2013, his appeal was denied because petitioner's claims
were previously addressed, and his sentence was “computed
correctly [.]” Dkt. No. 7–1 at 10, Part B–Response.
Petitioner filed a Central Office Administrative Remedy
Appeal on August 2, 2013. Dkt. No. 7–1 at 11, Central
Office Administrative Remedy Appeal. On August 21, 2013,
petitioner's appeal was rejected and returned to him because
he failed to provide a copy of his Regional Administrative
Remedy Appeal form or a copy of the response from the
Regional Director. Dkt. No. 7–1 at 16, Rejection Notice—
Administrative Remedy. Petitioner was given fifteen (15)
days to resubmit his appeal. Id. On August 20, 2013,
petitioner submitted another Central Office Administrative
Remedy Appeal. Dkt. No. 7–1 at 12, Central Office
Administrative Remedy Appeal. The outcome of that appeal
is unclear.
Respondent does not argue that petitioner's administrative
remedies have not been properly exhausted, and the records
show that petitioner raised his claims in several administrative
appeals. The court finds that petitioner has exhausted his
claims and will therefore address them on the merits.
III. DISCUSSION
A. Petitioner's claims
*4 In his petition, memorandum of law, and reply, petitioner
claims that: (1) because the federal district court did not
stay his ten-year sentence, it commenced on the day it was
imposed, and the United States Marshals Service violated the
commitment order by returning him to state custody rather
than committing him to the custody of the BOP; and (2) there
was no valid writ of habeas corpus ad prosequendum issued,
and he was therefore in exclusive federal custody beginning
October 18, 2001, when he was transported to the district
court. Pet.; Mem. at 2–11; Reply at 2–4. Petitioner argues that
his federal sentence has therefore expired, and he is entitled
to release. Pet.; Mem. at 11.
B. Relevant Statute and Controlling Precedent
Habeas corpus relief is available if a prisoner is “in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). A section 2241
petition is generally the appropriate vehicle to raise claims
arising from a prison official's computation of a prisoner's
sentence. Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir.2003)
(explaining that section 2241 is the proper way for a federal
inmate to challenge the BOP's calculation of credit to be given
for other periods of detention). Petitioner is challenging the
BOP's calculation of his federal sentence, and his claims are
properly brought pursuant to section 2241. Petitioner is not,
however, entitled to relief.
The United States Attorney General has delegated the
authority to calculate federal sentences to the Bureau of
Prisons. United States v. Wilson, 503 U.S. 329, 331–34
(1992); United States v. Labeille–Soto, 163 F.3d 93, 98
(2d Cir.1998). Pursuant to 18 U.S.C. § 3585(a), a federal
sentence “commences on the date the defendant is received
in custody awaiting transportation to, or arrives voluntarily
to commence service of sentence at, the official detention
facility at which the sentence is to be served.” 18 U.S.C. §
3585(a); Labeille–Soto, 163 F.3d at 98. If a defendant was
in primary federal custody at the time of sentencing, the
federal sentence commences upon imposition. 18 U.S.C. §
3585(a); Dutton v. U.S. Atty. Gen., 713 F.Supp.2d 194, 199
(W.D.N.Y.2010).
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When a defendant is borrowed from the primary custody of
a state by writ of habeas corpus ad prosequendum, however,
the state retains primary jurisdiction over the prisoner.
See United States v. Lockenwitz, 376 Fed.Appx. 147, 150
(2d Cir.2010) (“[A] defendant held at a federal detention
facility is not 'in custody' for the purposes of § 3585(a)
when he is produced through a writ of habeas corpus ad
prosequendum.”) (quoting United States v. Fermin, 252 F.3d
102, 108 n. 10 (2d Cir.2001)). The writ simply “enables
a jurisdiction 'to take temporary custody of a prisoner
confined within another jurisdiction, and indict, prosecute
and sentence' ” the prisoner. Greenough v. Hufford, No.
1:12–CV–8836, 2013 WL 4534997 at *8 (S.D.N.Y. Aug.
27, 2013) (citation omitted). When the federal prosecution
is complete, “principles of comity require the return of the
defendant to the primary custodian.” Dutton, 713 F.Supp.2d
at 201; see also Ortiz v. Lara, No. 1:11–CV–2092, 2013
WL 6083409 at *1 (S.D.N.Y. Nov. 19, 2013) (“Generally,
producing a state prisoner under a writ of habeas corpus ad
prosequendum to answer federal charges does not relinquish
state custody.”); United States v. Wusebio, No. 1:04–CR–
0607, 2007 WL 582745 at *2 (S.D.N.Y. Feb. 21, 2007)
(same). Federal custody does not commence until “the state
custodian relinquishes the prisoner upon satisfaction of the
prisoner's state obligation.” Dutton, 713 F.Supp.2d at 200–
201. A prisoner is “relinquished” by the state when he or
she “is released on bail, the state charges are dismissed, the
prisoner is released to parole, or the state sentence expires.”
Wusebio, 2007 WL 582745 at *2 (citations omitted).
*5 Pursuant to 18 U.S.C. § 3585(b), federal defendants may
receive credit for time spent in official detention before the
date the federal sentence commences if: (1) the detention
was the result of the offense for which the federal sentence
is ultimately imposed; or (2) the detention was the result
of other charges for which the defendant was arrested
after the commission of the offense for which the sentence
was imposed, as long as that time has not been credited
against another sentence. 18 U.S.C. § 3585(b)(1), (2). Section
3585(b) prohibits defendants from receiving “double credit
for [their] detention time.” Wilson, 503 U.S. at 337; Lopez v.
Terrell, 654 F.3d 176, 184–85 (2d Cir.2011) (explaining that
the BOP is prohibited from crediting time against a federal
sentence that was already credited against a state sentence).
C. Application
Petitioner was in the primary custody of New York State
by virtue of his arrest by New York state authorities on
drug charges in 1999. New York State did not relinquish
primary custody over petitioner during any time between
December 1, 1999 and October 31, 2008, the date of
his release to the custody of the United States Marshals
Service upon completion of his state sentence. Petitioner
was merely borrowed from New York State by writ of
habeas corpus ad prosequendum, issued on October 4, 2001,
in order to effectuate his appearance in the United States
District Court in connection with his arrest and conviction for
Indictment Number 1:01–CR–922. Dkt. No. 10–3, Exhibit C,
Application for Writ of Habeas Corpus. Petitioner's federal
prosecution did not terminate New York State's primary
custody over him. Lockenwitz, 376 F. App'x at 150; Dutton,
713 F.Supp.2d at 201; Ortiz, 2013 WL 6083409 at *1;
Wusebio, 2007 WL 582745 at *2.
The record contradicts petitioner's arguments that there was
no writ of habeas corpus ad prosequendum issued, or that the
writ was invalid. See Pet.; Mem. at 8–10; Reply at 2–4. The
writ is captioned “Application for Writ of Habeas Corpus,”
but in the body of the document, the Assistant United States
Attorney specified that the application was for the issuance of
a writ of habeas corpus ad prosequendum. See Dkt. No. 10–3,
Exhibit C. The writ also directed the United States Marshal to
produce petitioner “on the date, at the time, and in the place
recited above, and thereafter to maintain” petitioner “within
the jurisdiction of this Court pending the satisfaction of this
writ or the further orders of the Court.” Id. To the extent
petitioner argues that the writ is somehow invalid because it
specifies that he was charged by indictment with violating
only one criminal statute, 18 U.S.C. § 1959(a)(5), and not
the other statutes charged in the indictment, that argument is
meritless. The writ was issued in connection with Indictment
Number 1:01–CR–0922, the same indictment upon which he
was ultimately convicted. Dkt. No. 10–3, Exhibit C.
Moreover, the district court ordered petitioner's federal
sentence to run consecutively to his New York State sentence.
Dkt. No. 10–3, Exhibit D, Judgment in a Criminal Case, at
2 (“The defendant is hereby committed to the custody of
the United States Bureau of Prisons to be imprisoned for
a total term of 10 years TO RUN CONSECUTIVE WITH
THE STATE COURT SENTENCE.”) (emphasis in original).
Therefore, pursuant to 18 U.S.C. § 3585(a), petitioner's
federal sentence could not commence until October 31, 2008,
when he completed his New York sentence and was released
to the United States Marshal. Dutton, 713 F.Supp.2d at
200–201. Petitioner was properly returned to DOCCS upon
completion of his federal prosecution. Dutton, 713 F.Supp.2d
at 201.
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Finally, the 98–day period from December 1, 1999, through
March 7, 2000, was credited to petitioner's New York state
sentence. Dkt. No. 10–2, Erickson Dec. ¶ 7. Pursuant to 18
U.S.C. § 3585(b), petitioner cannot receive credit against
his federal sentence for that 98–day period. He also cannot
receive credit toward his federal sentence for the rest of
the time he spent serving his state sentence. That time was
credited to his state sentence and cannot be credited twice. 18
U.S.C. § 3585(b); Wilson, 503 U.S. at 337; Dkt. No. 10–2,
Erickson Dec. at ¶ 12.
*6 In sum, the record shows that the BOP properly
calculated petitioner's sentence, and his petition is therefore
denied and dismissed.
IV. CONCLUSION
WHEREFORE, it is hereby
ORDERED that the petition for a writ of habeas corpus, Dkt.
No. 1, is DENIED AND DISMISSED; and it is further
ORDERED that the Clerk serve copies of this Decision and
Order upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2014 WL 11350815
Footnotes
1 For the sake of clarity, the cited page numbers for the petition, the supplement and the records attached
to each of those documents refer to the electronically generated numbers at the top right-hand corner of
each page.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Mason v. Alatary, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 3950643
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jamell MASON, Petitioner,
v.
David ALATARY, Respondent.
9:23-CV-193 (LEK)
|
Signed August 27, 2024
Attorneys and Law Firms
Jamell Mason, Brooklyn, NY, Pro Se.
Emer M. Stack, DOJ-USAO, Syracuse, NY, for Respondent.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Petitioner Jamell Mason seeks federal habeas corpus
relief pursuant to 28 U.S.C. § 2241 following his remand
from home confinement to a secure facility. Dkt. No. 1-1
(“Petition”). Respondent David Alatary filed a response in
opposition to the Petition with relevant supporting records.
Dkt. No. 17 (“Response”). Petitioner filed a reply. Dkt. No.
20 (“Traverse”).
For the reasons outlined below, the Petition is granted in part
and denied in part.
II. BACKGROUND
A. Conviction
In 2011, the United States District Court for the Northern
District of West Virginia sentenced Petitioner to a 210-month
term of imprisonment with six years of supervised release for
violation of various drug laws. See Resp. at 5 1 (citing United
States v. Mason, No. 09-CR-87 (N.D.W. Va. May 11, 2013),
Dkt. No. 319 at 1–2, 4). Petitioner's projected release date is
September 23, 2024. See id.
B. Home Confinement
On December 15, 2020, the Bureau of Prisons (“BOP”)
redesignated Petitioner to home confinement pursuant to its
authority under the Coronavirus Aid, Relief, and Economic
Security Act (“CARES Act”). See id.; Dkt. No. 17-1
¶ 3 (“Magnusson Declaration”). Upon his redesignation,
Petitioner moved home to Brooklyn, New York under the
supervision of the Brooklyn House Residential Reentry
Center (“RRC”). See Pet. at 3; Resp. at 5. The terms of
his home confinement required Petitioner to remain “at
[his] place of residence, except for employment, unless ...
given permission to do otherwise.” Dkt. No. 17-11 at 2
(“Community Based Program Agreement” or “Agreement”).
While home, Petitioner alleges he took OSHA and SST
training courses, worked in construction, and cared for his
partially paralyzed brother. See Pet. at 2–3. Prior to the
incident underlying the Petition, Petitioner twice ran afoul
of RRC rules by straying outside of his permitted locations
without permission. See Resp. at 6–7; Dkt. No. 17-3 at 2–3;
Dkt. No. 17-5 at 2–3. For both offenses, the BOP, acting on the
RRC's recommendations, stripped Petitioner of good conduct
time (“GCT”) but did not remand Petitioner back to secure
confinement. See Dkt. No 17-3 at 3; Dkt. No. 17-5 at 3.
C. The Underlying Incident
On the night of July 8, 2022, while performing routine
monitoring, RRC staff could not reach Petitioner on either
his home or cell phone. See Resp. at 7. When Petitioner did
not answer his phones, RRC staff performed a “spot check”
to verify Petitioner's location. See Magnusson Decl. at ¶ 8.
The spot check revealed that Petitioner left his house without
permission at 9:03 PM and remained at an unauthorized
location in Brooklyn, NY—the Stillwell Avenue Train Station
—at 11:49 PM. See Resp. at 7. RRC staff notified the BOP
duty officer, and Petitioner was placed on escape status. See
id.
On the morning of July 9, 2022, RRC staff successfully
contacted Petitioner and instructed him to report to the RRC
facility. See Magnusson Decl. ¶ 8. Petitioner reported to the
facility at approximately 10:18 AM and was immediately
placed on building restriction. See Dkt. No. 1-2 at 2 (“Initial
Incident Report”). RRC staff issued and delivered an incident
report to Petitioner that afternoon, charging Petitioner with
violating BOP Code 200 (Escape with Subsequent Voluntary
Return within 4 Hours) and Code 316 (Being in an
Unauthorized Location). See Magnusson Decl. ¶ 8.
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*2 On July 11, 2022, RRC staff issued a revised incident
report, upgrading Petitioner's Code 200 violation to Code 102
(Escape from Non-Secure Institution Including Community
Confinement). See Dkt. No. 17-6 at 2 (“Revised Incident
Report”); compare Initial Incident Report with Dkt. No. 1-2
at 4. 2 On the afternoon of July 11, 2022, RRC staff attempted
to deliver the Revised Incident Report to Petitioner but, due
to a communication break down between RRC staff and
Petitioner, it appears Petitioner never received the Revised
Incident Report. See Pet. at 9.
Later that day, despite being on building restriction, Petitioner
walked out of the RRC facility without permission. See
Magnusson Decl. ¶ 10. Petitioner eventually returned
voluntarily, but RRC staff issued another incident report
charging Petitioner with escape. See id.
On July 12, 2022, RRC staff and the BOP coordinated with
the U.S. Marshals to remand Petitioner to a secure facility.
See Dkt. No. 17-10 at 2. Petitioner remained in secure
confinement until his release back to community confinement
at the RRC on March 14, 2024. See Dkt. No. 31 at 1 (“Letter”).
On July 27, 2022, RRC staff conducted a Center Discipline
Committee (“CDC”) hearing to adjudicate the Revised
Incident Report (“CDC Hearing”). See Magnusson Decl. ¶ 9;
Dkt. No. 17-7 at 2–4 (“CDC Report”). At the CDC Hearing,
Petitioner admitted to straying out of bounds on July 8, 2022.
See CDC Report at 2–3. As such, RRC staff found Petitioner
violated Code 102 and 316 and recommended a loss of thirty-
one days of GCT and imprisonment at a secure facility. See id.
at 3–4. On August 5, 2022, as required by BOP policy, a BOP
disciplinary hearing officer (“DHO”) reviewed and adopted
the CDC's recommendations in full. See Magnusson Decl. ¶
9; CDC Report at 4. A copy of the CDC report, certified by
the DHO, was given to Petitioner on August 8, 2022. See Pet.
at 7–8. Petitioner first learned of the Code 102 violation when
reviewing the CDC report. Id.
Petitioner unsuccessfully appealed the CDC's decision via
the BOP's administrative remedy program. Magnusson Decl.
¶ 16; Dkt. No. 17-12 at 3–6. Once he exhausted his
administrative remedies, Petitioner filed the instant Petition
on February 10, 2023. See Pet.
III. PETITION
Petitioner seeks federal habeas corpus relief, stating five
claims that allege the BOP violated the Fifth Amendment
Due Process Clause and other statutory rights. See id. In his
first three claims relating to the adjudication of the Revised
Incident Report, Petitioner contends that the BOP violated
his due process rights when: (1) the DHO review was held
in his absence; (2) the CDC Hearing was held eighteen
days after the Initial Incident Report was issued; and (3) the
BOP did not grant Petitioner the requisite 24-hour notice of
the change in charge from Code 200 to Code 102. See id.
at 5–10. Petitioner next argues that (4) his procedural due
process rights were violated when the BOP remanded him to a
secure facility without any process. 3 See id. at 10–11. Lastly,
Petitioner contends (5) that the BOP failed to accurately apply
Petitioner's First Step Act (“FSA”) credits to his sentence.
See id. at 11–13. Petitioner also requests the Court to appoint
counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B). See id. at
16. Respondent opposes all five counts and seeks to dismiss
the Petition. See Resp. at 4–5.
IV. DISCUSSION
A. Jurisdiction
*3 Habeas corpus relief is available if an individual is “in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3). A petition is
properly brought pursuant to 28 U.S.C. § 2241 where a federal
prisoner challenges the execution of their sentence, rather
than its imposition. See Adams v. United States, 372 F.3d 132,
134–35 (2d Cir. 2004); Jiminian v. Nash, 245 F.3d 144, 146–
47 (2d Cir. 2001). Execution of a sentence includes prison
disciplinary hearings, so a Section 2241 petition is the proper
means to challenge a petitioner's disciplinary hearings. See
Adams, 372 F.3d at 135. Petitions filed under Section 2241
must name the petitioner's warden as the respondent and be
filed in the district of the petitioner's confinement. 28 U.S.C. §
2241(a); Rumsfeld v. Padilla, 542 U.S. 426, 435, 447 (2004).
Here, Petitioner challenges the impact of an allegedly
unlawful disciplinary hearing and was incarcerated at FCI-
Ray Brook in the Northern District of New York when
he commenced the instant action. Accordingly, the Section
2241 Petition is the appropriate procedural vehicle to address
Petitioner's grievances, see Adams, 372 F.3d at 135, and
Petitioner filed suit in the proper court, see Padilla, 542 U.S.
at 447.
B. Petitioner's Claims
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1. Claim I: DHO Review
Petitioner argues the BOP violated his due process rights
when it did not afford him the opportunity to attend and
present documentary evidence and witnesses at the DHO
review. See Pet. at 5–6.
In Wolff v. McDonnell, the Supreme Court held that prisoners
have the right to attend their disciplinary hearing, including
the right to “call witnesses and present documentary evidence
in [their] defense.” 418 U.S. 539, 566 (1974); see also
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.
445, 454 (1985). If the disciplinary hearing takes the form
of a CDC hearing, BOP policy requires that a DHO review
and certify the CDC's findings. See Mansa v. United States,
No. 16-CV-644, 2019 WL 121681, at *13 n.4 (D. Conn.
Jan. 7, 2019). In such scenarios, Wolff does not mandate
that a prisoner receive two disciplinary hearings, one before
the CDC and another before a DHO. See id. (“[Petitioner]
received an in-person hearing with the CDC and made a
statement. The CDC hearing paperwork was forwarded to
the DHO for review and certification pursuant to [BOP]
policy. The DHO completed his review and certified the CDC
hearing.... [Petitioner is] not entitled to an in-person DHO
hearing or a separate DHO report.”); Colon v. Tellez, No. 20-
CV-5252, 2022 WL 521524, at *4 n.8 (E.D.N.Y. Feb. 22,
2022) (finding that the petitioner was not entitled to a DHO
hearing after receiving a CDC hearing).
Here, Petitioner received the CDC Hearing. Petitioner
attended the CDC Hearing and had an opportunity to
call witnesses and present documentary evidence, satisfying
Wolff’s constitutional requirements. See CDC Report at 2. As
such, Petitioner possessed no constitutional right to attend the
DHO review or participate in a separate DHO hearing. Since
the Court finds that Petitioner's absence at the DHO review
did not violate due process, Claim I is denied.
2. Claim II: Timing of the CDC Hearing
Petitioner next argues that the timing of the CDC Hearing
violates 28 C.F.R. § 541.7(c) and, consequently, violates his
due process rights. See Pet. at 6–7. Section 541.7(c) states
that a unit disciplinary committee (“UDC”) “will ordinarily
review [an] incident report within five work days after it is
issued.” 28 C.F.R. § 541.7(c). Petitioner states that the CDC
Hearing, held on July 27, 2022, occurred eighteen days after
the publication of the Initial Incident Report, violating Section
541.7(c). See Pet. at 7.
*4 Assuming Section 541.7(c) applies, a plain reading
of the regulation belies Petitioner's contention that RRC
staff violated Section 541.7(c) by waiting eighteen days
to hold the CDC Hearing. District courts both inside and
outside the Second Circuit have found the five-day period
is not a compulsory rule because of the inclusion of the
word “ordinarily.” See Epps v. Beard, No. 20-CV-44, 2022
WL 1462762, at *5 (E.D. Ky. May 9, 2022) (“Through
its inclusion of the qualifying term ‘ordinarily,’ the rule
intrinsically contemplates the possibility that prison staff
might need additional time to provide an inmate a [hearing].”)
(internal quotation marks omitted); Linares v. Terris, No. 17-
CV-11085, 2018 WL 1709027, at *4 (E.D. Mich. Apr. 9,
2018) (finding that the use of “ordinarily” makes clear that
the five-day period in Section 541.7(c) is “an aspirational,
not a mandatory, requirement”); Berkun v. Terrell, No. 11-
CV-3237, 2011 WL 4753459, at *3 (E.D.N.Y. Oct. 7, 2011)
(“[T]he inclusion of the word ‘ordinarily’ in the regulation
suggests flexibility; it does not prohibit holding the hearing
after [five] days.”). 4 With this guidance, the Court rejects
Petitioner's contention that the delay in holding the CDC
Hearing violated Section 541.7(c). Absent a violation of the
regulation, the Court finds Petitioner's due process rights have
not been violated. Claim II is denied.
3. Claim III: Notice Requirement
Petitioner contends that his due process rights were violated
when the CDC failed to provide him with advance written
notice of the Code 102 disciplinary charge, and, consequently,
prohibited him from mounting an effective defense at his
CDC Hearing. See Pet. at 7–10.
Prior to a disciplinary hearing, a prisoner must have 24-
hour written notice of the charges brought against him. See
Wolff, 418 U.S. at 564; Hill, 472 U.S. at 454. The purpose
of the notice requirement is “to inform [the prisoner] of the
charges and to enable him to marshal the facts and prepare
a defense.” Wolff, 418 U.S. at 564. If a charge is amended
after notice is already given, the BOP need not give new
notice if the discrepancy does not impair the petitioner's
ability to prepare a defense. See Northern v. Hanks, 326 F.3d
909, 911 (7th Cir. 2003) (“Because the factual basis of the
investigation report gave [petitioner] all the information he
needed to defend against the trafficking charge, the reviewing
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authority's modification [of the charges] did not deprive
[petitioner] of his due process rights.”); Holt v. Caspari, 961
F.2d 1370, 1373 (8th Cir. 1992) (finding no due process
violation when a charge was upgraded without new notice
because the incident report “gave [the prisoner] all of the
information he needed to make his defense”); Rogers v. Buss,
No. 07-CV-569, 2008 WL 2151431, at *2 (N.D. Ind. May
21, 2008) (“Changing the rule with which [petitioner] was
accused of violating did not deny him due process because
the conduct report stated facts that supported the corrected
charge and provided the facts he needed to prepare his defense
against that charge.”).
Respondent argues Petitioner received the Revised Incident
Report and, consequently, had adequate notice of the Code
102 charge. See Resp. at 7. Petitioner contests this assertion,
see Pet. at 9, but both parties agree that on July 11, 2022,
RRC staff at least attempted to give Petitioner the Revised
Incident Report with the Code 102 charge. See Resp. at 7;
Pet. at 9. Petitioner states that RRC staff never explained to
him that the Initial Incident Report had been updated, and,
therefore, he refused RRC staff's attempt to give him the
Revised Incident Report on July 11, 2022, as he believed he
already possessed the correct incident report. See Pet. at 9.
Respondent does not directly dispute Petitioner's version of
the events, but simply states Petitioner refused the Revised
Incident Report. See Resp. at 7. Given these allegations, the
Court finds that Petitioner was not aware he was charged with
Code 102 before the CDC Hearing.
*5 Respondent also argues that Petitioner received the Initial
Incident Report, and, therefore, notice of the Code 102 charge.
See Resp. at 24. Specifically, Respondent argues Petitioner
“failed to submit the version of the [Initial] Incident Report he
allegedly received, and instead has submitted the very same
incident report as Respondent [which showed the Code 102
charge].” Resp. at 24. Respondent concludes that this proves
Petitioner received notice of the Code 102 charge. See id.
Respondent is factually incorrect. Petitioner submitted two
incident reports. The first submission shows an incident report
delivered on July 9, 2022, with a Code 200 violation. See
Initial Incident Report. The second shows the Incident Report
with a Code 102 violation, delivered on July 11, 2022, which
Petitioner states he did not receive until August 8, 2022—well
after the CDC Hearing. See Dkt. No. 1-2 at 4; Pet. at 9. As
such, the Court rejects this argument.
Respondent next argues that, even if Petitioner was not aware
of the Code 102 charge, the differences between a Code 200
Escape and a Code 102 Escape did not impair Petitioner's
ability to prepare an adequate defense. See Resp. at 24–25.
Therefore, Respondent concludes, the lack of awareness did
not violate Petitioner's due process. See id.
As support, Respondent cites to a district court ruling from
the Eastern District of California. See Reed v. Babcock, No.
13-CV-2450, 2015 WL 1932526, at *2 (E.D. Cal. Apr. 15,
2015). In Reed, a petitioner who was initially charged with a
Code 102 violation was instead found guilty of a downgraded
Code 200 violation; the petitioner argued that, since he had
not received notice of the Code 200 violation until after
the disciplinary hearing, the guilty finding violated his due
process rights. See id. at *2. The court in Reed found that
the revision to the charges without new notice did not violate
the petitioner's due process rights as the petitioner's defense
did not “implicate the distinction between [C]ode 200 escape
and [C]ode 102 escape[,]” and that the petitioner had all the
information he needed to defend against the Code 200 charge
from the initial notice. Id. at 3.
Unlike in Reed, Petitioner did not receive notice of the
different charge that was more severe than the one initially
charged. See id. (finding “notice of the most severe such
charge that might be supported by those facts[ ] provided
[the] petitioner with exactly what Wolff requires.”) (emphasis
added). Moreover, Petitioner argues he would have presented
evidence, including witness testimony, that he returned to
confinement within four hours of his initial escape in an effort
to have the Code 102 charge downgraded to a Code 200
charge. See Trav. at 12–13; cf. Reed, 2015 WL 1932526, at
*3 (“Nothing in the record suggests that petitioner's defense
at the hearing would have differed” depending on how the
escape was charged). Therefore, the Court concludes that,
as Petitioner's ability to present a mitigation defense was
impaired by the lack of notice, the lack of notice violated his
due process rights.
However, even if a due process violation occurs, “it is entirely
inappropriate to overturn the outcome of a prison disciplinary
proceeding because of a procedural error without making the
normal [ ] assessment as to whether the error was harmless
or prejudicial.” Powell v. Coughlin, 953 F.2d 744, 750 (2d
Cir. 1991); see also Green v. Christensen, No. 23-CV-127,
2024 WL 1619392, at *3 (N.D.N.Y. Apr. 15, 2024) (“[P]rior
to receiving judicial relief for a due process violation in a
disciplinary hearing, a prisoner must demonstrate that the
violation harmed them in some way.”); Mendez v. Bell, No.
16-CV-2123, 2018 WL 4039321, at *5 (D. Conn. Aug. 23,
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2018) (finding an absence of prejudice “cannot make out a
due process violation”). “[T]he proof of prejudice must be
definite and not speculative.” United States v. Birney, 686
F.2d 102, 105–06 (2d Cir. 1982); see also Green, 2024 WL
1619392, at *3 (same). The burden of proving prejudice rests
with the petitioner. See Green, 2024 WL 1619392, at *3.
*6 While Petitioner has established a violation of due
process, Petitioner does not demonstrate prejudice. For
example, Petitioner does not argue that he would not
have been remanded from home confinement to secure
confinement with the Code 200 violation. As such,
Petitioner's argument that he suffered harm is at most
speculative, and speculative prejudice is not enough to “make
out a due process violation.” Mendez, 2018 WL 4039321,
at *5; see also Powell, 953 F.2d at 750 (finding that when
prejudice is only speculative, a technical violation of due
process does not require judicial intervention). The Court
concludes that, as Petitioner failed to make the requisite
showing of prejudice, judicial relief is not warranted. Claim
III is denied.
4. Claim IV: Revocation of Home Confinement
Petitioner argues the BOP violated his constitutional rights
when it revoked his home confinement without the requisite
due process. See Pet. at 10–11. Respondent contends that
Petitioner lacks a liberty interest in home confinement and,
therefore, was not entitled to process prior to its revocation.
See Resp. at 14.
a. Liberty Interest Jurisprudence
To state a procedural due process claim, a prisoner must
show that they have a protected liberty interest. See Kerry
v. Din, 576 U.S. 86, 90 (2015) (noting that no process is
due when no liberty interest is at stake). A prisoner has no
liberty interest in being placed outside of a traditional prison
setting or being “conditionally released before the expiration
of a valid sentence.” Greenholtz v. Inmates of Neb. Penal
Corr. Complex, 442 U.S. 1, 7 (1979). However, government
action in the carceral environment can create a liberty interest.
See Wolff, 418 U.S. at 557–58 (holding that a state statute
granting GCT created a liberty interest in a “shortened prison
sentence”).
District courts are far from uniform on what, if any, liberty
interest is provided to an individual placed on continued
home confinement pursuant to the CARES Act. Compare
Aurecchione v. Falco, No. 22-CV-4538, 2023 WL 6255529,
at *12 (S.D.N.Y. Sep. 25, 2023) (explaining that “[e]volving
caselaw in the Second Circuit reinforces the existence
of [a] right to process” in home confinement cases and
recognizing a liberty interest in maintaining continued home
confinement); Freeman v. Pullen, 658 F. Supp. 3d 53, 66–67
(D. Conn. 2023) (concluding that a habeas petitioner had a
liberty interest in continued home confinement) with Triplett
v. FCI Herlong Warden, No. 22-CV-83, 2023 WL 2760829,
at *3 (E.D. Cal. Apr. 3, 2023) (finding the petitioner had no
liberty interest in remaining on home confinement); Touizer v.
Attorney General of the United States, No. 20-CV-5169, 2021
WL 371593, at *4 (S.D. Fla. Feb. 3, 2021) (same). Although
the Court finds the precedent within the Second Circuit
persuasive, the Court will engage in its own independent
analysis to determine whether Respondent created a liberty
interest in the CARES Act home confinement program. The
Court first turns to the liberty interest jurisprudence involving
other community confinement programs.
District courts assess potential liberty interests using the
guidance established by Morrissey v. Brewer, 408 U.S. 471
(1972). In Morrissey, two prisoners filed habeas petitions
after their parole was revoked without a hearing. See 408
U.S. at 472–74. Each petitioner claimed that they retained a
liberty interest in remaining on parole and that the arbitrary
revocation violated their due process rights. See id. at 474. To
determine if a liberty interest existed in remaining on parole,
the Supreme Court examined the nature and conditions of
parole. See id. at 477–82. The Supreme Court explained
that the nature of parole “is release from prison, before the
completion of sentence, on the condition that the prisoner
abide by certain rules during the balance of the sentence.” Id.
at 477. Since parolees, while subject to certain limitations,
could still “be gainfully employed and [are] free to be
with family and friends and to form the other enduring
attachments of normal life,” the Supreme Court concluded
that the parolees’ “condition is very different from that of
confinement in a prison.” Id. at 482.
*7 The Morrissey Court also noted that the nature of the
parole program included “an implicit promise that parole will
be revoked only if [parolees] fail[ ] to live up to the parole
conditions.” Morrissey, 408 U.S. at 482.; see also id. at 479
(“Implicit in the system's concern with parole violations is the
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notion that the parolee is entitled to retain his liberty as long
as he substantially abides by the conditions of his parole.”).
Applying the then-governing “grievous loss” standard, the
Supreme Court concluded that the parole program created
a liberty interest as it possessed “many of the core values
of unqualified liberty and its termination inflicts a ‘grievous
loss’ on the parolee.” Id. at 482. Thus, termination of parole
required “some orderly process, however informal.” Id.
The Supreme Court applied the reasoning in Morrissey when
it reviewed a preparole program in Oklahoma's state prisons.
See Young v. Harper, 520 U.S. 143 (1997). In Young,
a prisoner spent five “uneventful” months in community
confinement pursuant to the preparole program after which
State authorities denied him parole and returned him to state
prison without process. See id. at 145–46. The prisoner filed
a habeas petition, claiming the revocation of his preparole
deprived him of liberty without due process. See id. at
146. The Supreme Court agreed, extending Morrissey to the
preparole program. See id. at 147. In coming to its decision,
the Supreme Court compared the preparole program to the
parole program in Morrissey with respect to the conditions
of liberty conferred. See id. at 148–152. The Supreme
Court noted that, though the preparole program restricted the
prisoner from certain activities, a participant could still live at
home, work, and “live[ ] a life generally free of the incidents
of imprisonment,” just as the parolees in Morrissey could. Id.
at 148. Additionally, as in Morrissey, the preparole program
included an implicit promise that a preparole would remain
free absent a violation of the program. See id. at 150–51. The
Supreme Court concluded that, as the preparole program was
“equivalent to parole,” the preparole held a liberty interest
in his freedom entitling him to the procedural protections of
Morrissey. Id. at 147.
Following Morrissey and Young, the Second Circuit has
applied Morrissey to analyze whether the Due Process Clause
creates a liberty interest in various community confinement
programs by comparing the community confinement program
to the liberty interest found in parole and preparole programs.
See Holcomb v. Lykens, 337 F.3d 217, 222–25 (2d Cir.
2003) (applying Morrissey to Vermont's temporary furlough
program and finding petitioner received the procedural
protections outlined in Morrissey); Anderson v. Recore, 317
F.3d 194, 200 (2d Cir. 2003) (finding Morrissey held that
once community confinement similar to parole is granted,
“it cannot [be] take[n] ... away without according the inmate
procedural due process”); Kim v. Hurston, 182 F.3d 113, 118–
119 (2d Cir. 1999) (applying Morrissey to a New York work
release program and holding the prisoner had a liberty interest
in remaining in the program).
Against this backdrop, the Court turns to its examination of
the present facts.
b. Respondent's Preliminary Arguments
As a preliminary matter, Respondent argues that the Court
should dismiss Claim IV as the Court “has no authority
to grant Petitioner's request for immediate ... placement in
home confinement because those decisions are within the
BOP's sole discretion.” Resp. at 10. The Court recognizes that
the BOP generally has sole discretion in the placement and
transfer of prisoners. See 18 U.S.C. § 3621(b) (establishing
that the “[BOP] shall designate the place of the prisoner's
imprisonment” and “may at any time[ ] ... direct the
transfer of a prisoner from one penal or correctional
facility to another,” and that “a designation of a place of
imprisonment ... is not reviewable by any court”); see also
Touizer, 2021 WL 371593, at *3 (finding that the BOP has
“exclusive authority ... to designate the place of an inmate's
confinement”).
*8 However, the Court finds the comparison to Touizer
unpersuasive. Despite the BOP's broad authority under
Section 3621(b), judicial review is appropriate where
the BOP's actions allegedly violate the Constitution. See
Freeman, 658 F. Supp. 3d at 63 (citing cases). As Claim
IV turns on constitutional questions, the Court rejects
Respondent's argument that the BOP's authority prevents
judicial review.
Respondent next argues that the Morrissey and Young line of
cases do not apply. See Resp. at 15–17. Instead, Respondent
asserts that Meachum v. Fano, 427 U.S. 215 (1976) controls.
See id. In Meachum, the Supreme Court ruled that a prisoner
had no liberty interest in his prison setting and that a
prison administration could transfer a prisoner to another
prison with no process without running afoul of the Due
Process Clause. Meachum, 427 U.S. at 228–29. Respondent
argues that Meachum applies because, despite being on home
confinement, Petitioner remains in BOP custody as “a federal
inmate, serving an ongoing federal sentence,” and, thus “[is]
less like the parolees and preparolees ... in Morrissey and
Young, and more like the inmate[ ] in Meachum.” Resp. at 17.
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The Court finds Respondent's argument unpersuasive. In
Young, Oklahoma made a similar argument, claiming that
because the preparole remained in custody like the petitioner
in Meachum, Meachum should control. See Young, 520 U.S.
at 148. The Supreme Court rejected the argument, noting
the preparolees’ actual conditions more closely resembled
Morrissey despite Oklahoma's technical characterization
of the preparolees’ custody. See id. at 148–49; see also
Recore, 317 F.3d at 200 (“Because [the petitioner], like
the petitioner[ ] in Morrissey ... lived outside the prison,
a comparison to the ordinary conditions of prison life is
inappropriate.”).
Here, as in Young and Morrissey, Petitioner's home
confinement allowed Petitioner to live at home “free of the
incidents of imprisonment.” Young, 520 U.S. at 148. Given
the conditions of Petitioner's home confinement, the Court
will apply Morrissey to decide Claim IV.
c. Morrissey Test
No controlling authority has yet answered whether revocation
of home confinement granted pursuant to the CARES Act
requires the procedural protections granted to parolees by
Morrissey. 5 The Court is also unaware of any binding
precedent that addresses the constitutional rights of prisoners
on home confinement pursuant solely to 18 U.S.C. § 3624(c)
(2). Accordingly, the Court will use Morrissey to undertake an
independent examination of Petitioner's constitutional rights
on home confinement.
*9 To successfully prove the existence of a liberty interest
in home confinement, Petitioner must plausibly allege (1):
that the conditions of the home confinement program are
sufficiently similar to the conditions of the parole program
in Morrissey with respect to the extent and conditions of
liberty conferred; and (2) that the home confinement program
implicitly promised that Petitioner's home confinement status
would continue absent misconduct. Morrissey, 408 U.S. at
481–82; Young, 520 U.S. at 147–48; see also Holcomb, 337
F.3d at 222–23; Cardoza, 2022 WL 3212408, at *8.
i. Liberty Conferred
Petitioner contends that the first prong is met because the
liberty conferred by his home confinement “bears such [a]
strong resemblance to the [p]arole [p]rogram in Morrissey.”
Pet. at 10. Petitioner explains that his home confinement
allowed him to live at home, take care of his brother, work,
and “form certain attachments common to normal life,” and
concludes that, as in Morrissey, his living conditions are
distinct from normal “confinement in a prison.” Id. at 10–11.
With respect to the extent of the liberty conferred, some
factual differences do exist between the home confinement
program and the parole program in Morrissey. For example,
the parolee in Morrissey was free to travel within his
“community,” Morrissey 408 U.S. at 478, while Petitioner
required permission to travel anywhere but home and work.
See Agreement at 2. Despite these stricter rules, “the
privileges available in [home confinement] are worlds apart
[ ] from eating prisoner food in a cell.” See Ortega v.
U.S. Immigration and Customs Enforcement, 737 F.3d 435,
439 (6th Cir. 2013). Thus, the Court is unconvinced that
the differences are so stark as to prevent a finding that
home confinement “include[s] many of the core values of
unqualified liberty” found in Morrissey. 408 U.S. at 482. As
such, the Court holds that Petitioner satisfies the first step of
the Morrissey analysis.
ii. Implicit Promise
Turning to the implicit promise analysis, Respondent argues
no implicit promise arises from “any statutory, regulatory,
or other governing authority,” and, as such, no “reasonable
inmate [could] conclude that he is entitled to remain in home
confinement” absent misconduct. Resp. at 19.
“The Morrissey line of cases does not specify where such
an implicit promise must originate.” Cardoza, 2022 WL
3212408, at *12. An implicit promise of continuing liberty
need not be communicated via a statutory or regulatory
authority. See Morrissey, 408 U.S. at 492–93 (Douglas, J.,
dissenting) (stating that the majority found an indication of
an implicit promise despite the statute governing the parole
program providing the warden complete discretion to revoke
parole at any time). “Imposing such a requirement would be
more akin to requiring an explicit promise, as opposed to an
implicit one.” Cardoza, 2022 WL 3212408, at *12.
Historically, courts have found an implicit promise in various
sources. See Morrissey, 408 U.S. at 479, 482 (finding an
implicit promise in the nature of parole and the “system's
concern with parole violations”); Holcomb, 337 F.3d at 223
(examining the community confinement statute to determine
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if an implicit promise exists); Pugliese v. Nelson, 617 F.2d
916, 922 (2d Cir. 1980) (“To qualify as constitutionally
protectible ‘liberty,’ the prisoner's interest must be ... one that
he would normally expect to have as a matter of custom and
practice or of fundamental decency and fairness.”); Ortega,
737 F.3d at 439 (“What process is due ... may well turn on
the notice given to the individual before he was allowed to
serve a prison sentence at home.”). Thus, the Court rejects
Respondent's contention.
*10 Petitioner argues that the Community Based Program
Agreement governing Petitioner's home confinement
implicitly promises that his home confinement would not
be revoked without misconduct. See Trav. at 9. Specifically,
the Agreement states that “failure to remain at the required
locations [or heed other rules in the Agreement] may
result in disciplinary action and/or prosecution for escape.”
Agreement at 2. The Agreement also explains that if
Petitioner “decline[s] to participate in the recommended
Home Detention program [he] may face administrative
reassignment out of the residential reentry program.” Id.
Petitioner argues that one could reasonably infer based on
such language that reincarceration could only stem from
misconduct. See Trav. at 9. Further, the Agreement does not
state that home confinement could be arbitrarily terminated.
Petitioner contends that the lack of such language, coupled
with the disciplinary warnings described above, give “no
hint” that he may be removed from home confinement
without cause, thus creating a reasonable expectation that he
would remain on home confinement “except by committing
[a] major infraction.” Trav. at 10.
Petitioner also notes that the then-Director of the BOP,
Michael Carvajal “indicated in a 2020 address to the Senate
Committee on the Judiciary that he expected those removed to
home confinement pursuant to the CARES Act would remain
on home confinement” barring misconduct. Id. Furthermore,
BOP General Counsel Ken Hyle wrote in a report that
those on home confinement pursuant to the CARES Act
would only be “transferred back to secure correctional
facilities if there are any significant disciplinary infractions or
violations of the home confinement agreement.” Id. Petitioner
argues that the statements from BOP leadership make clear
that the BOP “does not employ a widespread practice of
reincarcerating individuals” released on home confinement.
Id. This, Petitioner argues, could “reasonably [ ] instill an
expectation that one would be permitted to continue on
home confinement absent good cause for revocation.” Id.
The Court agrees with Petitioner, finding an implicit promise
that Petitioner would remain on home confinement absent
misconduct.
Accordingly, the Court concludes that Petitioner possesses
a liberty interest in home confinement that required some
process prior to its permanent revocation.
d. Procedure Due
The Court must next examine the process due. No
controlling authority dictates what process a prisoner on
home confinement should receive prior to its revocation; nor
does either party brief the issue. Considering the similarities
between home confinement and the parole program in
Morrissey, the Court concludes that Morrissey protections
apply here. See Young, 520 U.S. at 152–53 (establishing that,
since preparole was sufficiently like parole, a preparole was
entitled to the procedural protections set forth in Morrissey);
Tompkins, 2022 WL 3212368, at *11–12 (holding that
Morrissey protections applied to a prisoner whose home
confinement was revoked without due process). As such,
prior to permanently revoking home confinement, the BOP
must provide the Morrissey procedural protections described
below.
In Morrissey, the Supreme Court laid out a two-hearing
process to satisfy a parolee's due process. Morrissey, 408
U.S. at 485–90. Following the detention of a parolee for an
alleged violation of parole conditions, “some minimal inquiry
[must] be conducted ... near the place of the alleged parole
violation or arrest and as promptly as convenient after arrest
while information is fresh and sources are available.” Id. at
485. This preliminary hearing requires only a showing of
“probable cause” to justify the parolee's continued detention.
Id. The adjudicator of the preliminary hearing must “not [be]
directly involved in the case” but “need not be a judicial
officer.” Id. at 485–86. The parolee must also receive notice
of the hearing which “should state what ... violations have
been alleged.” Id. at 487; see Tompkins, 2022 WL 3212368,
at *12. At the hearing, the parolee may testify on his own
behalf, present documentary evidence, call witnesses, and
cross examine adverse witnesses. See Morrissey, 408 U.S.
at 487. Upon returning a decision, the adjudicator must
provide some type of summary of the evidence presented
and their conclusions. See id. If a determination of probable
cause is made in the preliminary hearing, a parolee may
be constitutionally detained pending the second Morrissey
hearing. See id.
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*11 Following a probable cause finding in the preliminary
hearing, a revocation hearing is still required to permanently
revoke parole. See Morrissey, 408 U.S. at 487–88; Williams
v. Ward, 556 F.2d 1143, 1156 (2d Cir. 1977) (“A later
revocation hearing was required, prior to the final decision
on revocation.”). The revocation hearing must “be tendered
within a reasonable time after the parolee is taken into
custody.” Morrissey, 408 U.S. at 488; see also id. (finding
a delay of two months to be reasonable). To satisfy the
“minimum requirements of due process,” the parolee must
receive:
(a) written notice of the claimed
violations of parole; (b) disclosure
to the parolee of evidence against
him; (c) opportunity to be heard in
person and to present witnesses and
documentary evidence; (d) the right
to confront and cross-examine adverse
witnesses (unless the hearing officer
specifically finds good cause for not
allowing confrontation); (e) a ‘neutral
and detached’ hearing body such as a
traditional parole board, members of
which need not be judicial officers or
lawyers; and (f) a written statement by
the factfinders as to the evidence relied
on and reasons for revoking parole.
Id. at 489.
In detailing the requirements of the revocation hearing, the
Supreme Court did not specify the burden of proof required
to permanently remand a parolee to secure custody. However,
the Supreme Court stressed that the revocation hearing does
not “equate ... to a criminal prosecution in any sense.” Id. at
489. Thus, the Court concludes that the high standard of a
criminal prosecution is inappropriate. Yet, the Supreme Court
also noted that the revocation hearing “must be the basis for
more than determining probable cause.” Id. at 488. Therefore,
an evidentiary standard between “beyond a reasonable doubt”
and “probable cause” is appropriate. Since the preponderance
standard is used in revocation hearings for similar programs
like probation and supervised release, see 18 U.S.C. § 3583(e)
(3); United States v. Bujak, 347 F.3d 607, 609 (6th Cir. 2003);
United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996), the
Court concludes that a “preponderance of the evidence” is the
appropriate evidentiary burden.
e. Process Received
The Court next examines whether the process Petitioner
received met these requirements. Following numerous
alleged violations of the home confinement program, RRC
staff, BOP staff, and the United States Marshals coordinated
to remand Petitioner to secure confinement on July 12, 2022.
See Magnusson Decl. ¶ 12. On July 27, 2022, Petitioner
faced a neutral CDC board that afforded Petitioner all the
procedural protections required by a Morrissey preliminary
hearing. Petitioner (1) had the opportunity to testify, call and
confront witnesses, and present evidence, see CDC Report at
2; (2) received a brief written summary of the evidence and
the CDC board's conclusions, including a recommendation
to keep Petitioner in secure custody, see id. at 3; and (3)
faced no significant delay between his remand to secure
custody on July 12, 2022, and the CDC Hearing on July
27, 2022. Considering the process Petitioner received, the
Court concludes Petitioner's secure confinement immediately
following his CDC Hearing did not violate Petitioner's due
process rights.
However, Petitioner never received a revocation hearing as
required by step two of Morrissey. Petitioner received a
DHO review after his CDC Hearing, see Magnusson Decl.
¶ 9; CDC Report at 4, but Petitioner was not notified of,
present for, or given the opportunity “to present witnesses
and documentary evidence” at a DHO review or any
associated hearing. Morrissey, 408 U.S. at 489. Therefore,
any DHO review or hearing did not satisfy the “minimum
requirements of due process” guaranteed to Petitioner by
Morrissey. Id. Accordingly, the Court finds that Respondent
violated Petitioner's due process rights in revoking his home
confinement without a proper revocation hearing as required
by Morrissey. With respect to Claim IV, the Petition is
granted.
f. Remedy
*12 In relation to the unconstitutional revocation of his
home confinement, Petitioner seeks “immediate release
(while awaiting [a] revocation hearing that complies with
[d]ue [p]rocess), [a] declaration that Respondents have
insufficient basis under the Due Process [C]lause to detain
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him ..., [and] an injunction against Petitioner's continued
imprisonment until his due process rights have been restored.”
Dkt. No. 1 at 7 (“Petition Application”). 6
“[T]he proper remedy for a due process violation is the
process itself.” Tompkins, 2022 WL 3212368, at *14; see
United States ex rel. Bey v. Conn. State Bd. of Parole,
443 F.2d 1079, 1089–90 (2d Cir. 1971) (concluding that the
proper remedy for an improper parole revocation hearing
was a new revocation hearing), vacated on other grounds
sub nom. Conn. State Bd. of Pardons v. Bey, 404 U.S. 879
(1971). Thus, the Court holds that the proper remedy for
Petitioner is not immediate release to home confinement but a
Morrissey revocation hearing. To the extent Petitioner argues
that his continued detention while awaiting the revocation
hearing is unconstitutional, the Court disagrees. Petitioner
received a preliminary hearing in accordance with Morrissey,
making his detention lawful for a “reasonable” period of time
while awaiting the revocation hearing. Petitioner was also
transferred back to community confinement at the RRC on
March 14, 2024. See Letter at 1. Now that Respondent is
on notice that a revocation hearing is required, the Court
finds that Petitioner's continued detention remains lawful
for a “reasonable” period. If needed, Petitioner's continued
detention can be revisited if the Respondent fails to provide
a timely revocation hearing following the publication of this
order. See Billiteri v. United States Bd. of Parole, 541 F.2d
938, 946 (2d Cir. 1976) (“If the case was before the court on
a petition for habeas corpus, it may order compliance within
a reasonable period, failing which it may order the petitioner
discharged from custody.”). Accordingly, Petitioner's request
for immediate release is denied without prejudice, subject
to renewal should the BOP neglect to provide a Morrissey
revocation hearing within a reasonable time frame.
Petitioner also seeks declaratory relief. See Pet. at 1. The
Declaratory Judgment Act (“DJA”) permits a federal court to
declare the rights of a party “whether or not further relief is
or could be sought.” 28 U.S.C. § 2201(a). The DJA “confers
a discretion on the courts rather than an absolute right upon
the litigant.” Public Service Comm'n of Utah v. Wycoff Co.,
344 U.S. 237, 241 (1952). Here, the Court has found a
constitutional violation in relation to the revocation of home
confinement and declaratory relief would prove duplicative.
Accordingly, the Court declines to exercise its discretion
under the DJA.
As for Petitioner's request for an injunction against continued
imprisonment, see Pet. Application at 7, the Court dismisses
the request as moot as Petitioner is no longer in secure
confinement.
5. Count V: First Step Act
*13 Petitioner's last claim accuses the BOP of failing to
accurately apply Petitioner's First Step Act (“FSA”) credits to
his sentence. See Pet. at 11–13.
A petitioner seeking relief pursuant to Section 2241 must
exhaust their administrative remedies. See Carmona v. United
States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.
2001). “This requires compliance with the BOP's four-step
Administrative Remedy Program.” Lallave v. Martinez, 609
F. Supp. 3d 164, 179 (E.D.N.Y. 2022) (citing 28 C.F.R. §
542.10(a)).
To exhaust the BOP's four-step Administrative Remedy
Program a prisoner must complete the following steps:
The first step of the prescribed process
entails making an effort to obtain
an early resolution of the matter by
raising the issue informally to staff.
In the event this avenue does not lead
to a successful resolution, the inmate
next may submit a formal written
[Administrative Remedy (“AR”)] to
the warden of the particular facility
involved, utilizing a designated BP–
9 form, within twenty days of the
relevant event. If the AR is denied, an
appeal may be taken to the appropriate
BOP Regional Director within twenty
calendar days of the date of denial. As
a fourth and final step, an unfavorable
decision from the Regional Director
may be appealed to the General
Counsel's office (also referred to as the
“Central Office” [or “CORC”]) within
thirty days of the date on which the
Regional Director rejects the inmate's
appeal.
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Barber v. Perdue, No. 11-CV-127, 2012 WL 5996342, at
*4 (N.D.N.Y. Nov. 9, 2012) (internal citations omitted). 7
In sum, “[n]o administrative appeal is fully exhausted until
the BOP's Central Office reviews it.” Reynolds v. Warden
of FCI Ray Brook, No. 16-CV-1264, 2019 WL 8064012, at
*3 (N.D.N.Y. Aug. 5, 2019). The burden of demonstrating
exhaustion rests with the petitioner. See Spring v. Schult, No.
08-CV-531, 2009 WL 3232183, at *1 (N.D.N.Y. Oct. 1, 2009)
(Kahn, J.).
A federal inmate's failure to exhaust the administrative
remedies available to him prior to commencing a Section
2241 action may “only be excused upon a showing of cause
and prejudice.” Carmona, 243 F.3d at 634. To demonstrate
legal “cause,” a petitioner must establish that “something
external to the petitioner, something that cannot be fairly
attributed to him,” prevented the petitioner from fully
exhausting his administrative remedies. Tineo v. United
States, 977 F. Supp. 245, 253 (S.D.N.Y. 1996) (quoting
Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Factors
that constitute “cause” include “interference by officials
that makes compliance with procedural rules impractical.”
Hinebaugh v. Wiley, 137 F. Supp. 2d 69, 75 (N.D.N.Y. 2001)
(cleaned up) (quoting Tineo, 977 F. Supp. at 253.) General and
conclusory allegations will not be enough to establish cause;
rather, a petitioner must plead specific facts. See Rosario v.
Quay, No. 15-CV-523, 2017 WL 337977, at *3 (D. Conn.
Jan. 23, 2017). To establish prejudice, a petitioner must
show “actual harm resulting from the alleged [interference].”
Hinebaugh, 137 F. Supp. 2d at 75.
*14 Petitioner and Respondent both agree that Petitioner
failed to fully exhaust his administrative remedies concerning
his FSA credits. See Pet. Application at 8; Resp. at 27.
Therefore, Count V will be procedurally barred unless the
Court excuses Petitioner's failure to exhaust under the “cause
and prejudice” test.
The Court first considers whether the BOP's failure to respond
to his BP-9 appeal establishes “cause.” See Trav. at 13–14.
The exhaustion rules instruct inmates to treat non-responses
to an administrative appeal as a denial. See 28 C.F.R.
§ 542.18; Zenquis v. Pullen, No. 22-CV-1151, 2023 WL
2931585, at *2 (D. Conn. Apr. 13, 2023). Thus, the lack of
response to the BP-9 cannot constitute “cause” as the non-
response did not prevent him from pursuing the remaining
administrative remedies. See Tineo, 977 F. Supp. at 253.
The Court next considers whether Petitioner's transfer from
FCI Ray Brook, where he filed the BP-9, constitutes “cause”
that should excuse his failure to exhaust. See Trav. at 13–14.
However, Petitioner provides no details as to how his transfer
from FCI Ray Brook made “compliance with procedural rules
impractical.” Hinebaugh, 137 F. Supp. 2d at 75 (cleaned
up). Without such detail, Petitioner's allegations are too
general and conclusory to adequately show that “he was
prevented from fully pursuing his administrative remedies
due to circumstances beyond his control.” Rosario, 2017
WL 337977, at *3. Conclusory allegations are not enough to
establish “cause.” See id. Without the requisite demonstration
of “cause,” the Court cannot excuse Petitioner's failure to
exhaust. Therefore, the Court dismisses Count V without
prejudice.
6. Right to Counsel
Petitioner also requests the Court to appoint counsel pursuant
to 18 U.S.C. § 3006A(a)(2)(B) “to supplement and/or perfect
his filing.” Pet. at 16.
“Where, as here, an evidentiary hearing is unnecessary, the
appointment of counsel to represent a pro se habeas Petitioner
rests in the court's discretion.” United States ex rel. Cadogan
v. LaVallee, 502 F.2d 824, 826 (2d Cir. 1974). A district court
“should not [exercise its discretion to appoint counsel] where
the petitioner has raised the relevant issues with sufficient
detail that the district court can thoroughly consider them.”
Florez v. Walker, No. 00-CV-1576, 2005 WL 1669826, at *1
(N.D.N.Y. July 16, 2005).
Here, Petitioner has raised his claims with clarity and, as no
evidentiary hearing is required, the Court finds no reason to
appoint counsel. Accordingly, Petitioner's request for counsel
is denied.
Lastly, the Court notes that a certificate of appealability is
not required for Petitioner to appeal the denial of his Petition
because the Petition was brought under 28 U.S.C. § 2241. See
Murphy v. United States, 199 F.3d 599, 601 n.2 (2d Cir. 1999)
(holding that the Antiterrorism and Effective Death Penalty
Act's certificate of appealability requirement does not apply
to Section 2241 petitions).
V. CONCLUSION
Accordingly, it is hereby:
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ORDERED, that that the Petition, Dkt. No. 1-1, is DENIED
AND DISMISSED with respect to Counts I, II, III, and V;
and the Petition, Dkt. No. 1-1, is GRANTED with respect to
Count IV; and it is further
ORDERED, that the BOP conduct a Morrissey revocation
hearing, within a reasonable amount of time, in accordance
with the requirements discussed in Section IV.B.4.d.; and it
is further
*15 ORDERED, that the Clerk enter judgment and close
this case; and it is further
ORDERED, that the Clerk serve a copy of this
Memorandum-Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 3950643
Footnotes
1 Page citations refer to the pagination generated by CM/ECF, the Court's electronic filing system.
2 As Petitioner notes, the Revised Incident Report also changed a few other details from the Initial Incident
Report. See Pet. at 8. However, none of these changes are of consequence here.
3 Petitioner also alleges that Respondent violated his substantive due process rights. See Pet. at 1. However,
outside of raising the issue in the introductory paragraph of his Petition, Petitioner does not again discuss
his substantive due process claim. “The first step in substantive due process analysis is to identify the
constitutional right at stake.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995). Without
identifying the constitutional right at issue, the Court cannot adjudicate the claim. Therefore, insofar as
Petitioner asserts a substantive due process claim, this is dismissed without prejudice.
4 Berkun reviewed the regulation when the allotted review time was three days. Compare 28 C.F.R. § 541.15(b)
(2010), with 28 C.F.R. § 541.7(c) (2024).
5 Although the Second Circuit has not yet addressed the issue of whether procedural protections are required
when CARES Act home confinement is revoked, district courts in the Second Circuit have examined the issue.
See Freeman, 658 F. Supp. 3d at 60–68 (applying Morrissey and finding the petitioner was entitled to due
process protections prior to revocation of home confinement granted by the CARES Act); Cardoza v. Pullen,
No. 22-CV-591, 2022 WL 3212408, at *6–14 (D. Conn. Aug. 9, 2022) (applying Morrissey but rejecting the
petitioner's due process claim as no implicit promise was made to the prisoner); Tompkins v. Pullen, No. 22-
CV-339, 2022 WL 3212368, at *4–15 (D. Conn. Aug. 9, 2022) (applying Morrissey and finding the petitioner
was entitled to due process protections prior to revocation of home confinement granted by the CARES Act).
Respondent agrees that no controlling authority exists but points the Court to several circuit and district court
cases outside of the Second Circuit that have touched on the issue. See Resp. at 19–20. However, none of
the cases cited by Respondent deal with the issue directly; therefore, the Court does not discuss them here.
6 The Court notes that Petitioner was released from secure custody to a halfway house in Brooklyn, New York
on March 14, 2024. Dkt. No. 31 at 1. If a federal court can no longer grant the relief sought to resolve a
controversy, subject matter jurisdiction is lost, and the matter becomes moot. See Martin-Trigona v. Shiff, 702
F.2d. 380, 386 (2d. Cir. 1983) (“The hallmark of a moot case or controversy is that the relief sought can no
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longer be given or is no longer needed.”). As Petitioner specifically requested release to home confinement,
see Pet. at 1, the Court finds the issue is not moot.
7 The exhaustion provisions imposed by the Prisoner Litigation Reform Act (“PLRA”) do not apply to habeas
corpus Petitions. See Carmona, 243 F.3d at 634 (“[W]e note that although ... the P[LRA] ... contains a
statutory administrative exhaustion requirement, ... the requirements of the [PLRA] do not apply to habeas
proceedings.”).
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2024 WL 3950643
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jamell MASON, Petitioner,
v.
David ALATARY, Respondent.
9:23-CV-193 (LEK)
|
Signed August 27, 2024
Attorneys and Law Firms
Jamell Mason, Brooklyn, NY, Pro Se.
Emer M. Stack, DOJ-USAO, Syracuse, NY, for Respondent.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Petitioner Jamell Mason seeks federal habeas corpus
relief pursuant to 28 U.S.C. § 2241 following his remand
from home confinement to a secure facility. Dkt. No. 1-1
(“Petition”). Respondent David Alatary filed a response in
opposition to the Petition with relevant supporting records.
Dkt. No. 17 (“Response”). Petitioner filed a reply. Dkt. No.
20 (“Traverse”).
For the reasons outlined below, the Petition is granted in part
and denied in part.
II. BACKGROUND
A. Conviction
In 2011, the United States District Court for the Northern
District of West Virginia sentenced Petitioner to a 210-month
term of imprisonment with six years of supervised release for
violation of various drug laws. See Resp. at 5 1 (citing United
States v. Mason, No. 09-CR-87 (N.D.W. Va. May 11, 2013),
Dkt. No. 319 at 1–2, 4). Petitioner's projected release date is
September 23, 2024. See id.
B. Home Confinement
On December 15, 2020, the Bureau of Prisons (“BOP”)
redesignated Petitioner to home confinement pursuant to its
authority under the Coronavirus Aid, Relief, and Economic
Security Act (“CARES Act”). See id.; Dkt. No. 17-1
¶ 3 (“Magnusson Declaration”). Upon his redesignation,
Petitioner moved home to Brooklyn, New York under the
supervision of the Brooklyn House Residential Reentry
Center (“RRC”). See Pet. at 3; Resp. at 5. The terms of
his home confinement required Petitioner to remain “at
[his] place of residence, except for employment, unless ...
given permission to do otherwise.” Dkt. No. 17-11 at 2
(“Community Based Program Agreement” or “Agreement”).
While home, Petitioner alleges he took OSHA and SST
training courses, worked in construction, and cared for his
partially paralyzed brother. See Pet. at 2–3. Prior to the
incident underlying the Petition, Petitioner twice ran afoul
of RRC rules by straying outside of his permitted locations
without permission. See Resp. at 6–7; Dkt. No. 17-3 at 2–3;
Dkt. No. 17-5 at 2–3. For both offenses, the BOP, acting on the
RRC's recommendations, stripped Petitioner of good conduct
time (“GCT”) but did not remand Petitioner back to secure
confinement. See Dkt. No 17-3 at 3; Dkt. No. 17-5 at 3.
C. The Underlying Incident
On the night of July 8, 2022, while performing routine
monitoring, RRC staff could not reach Petitioner on either
his home or cell phone. See Resp. at 7. When Petitioner did
not answer his phones, RRC staff performed a “spot check”
to verify Petitioner's location. See Magnusson Decl. at ¶ 8.
The spot check revealed that Petitioner left his house without
permission at 9:03 PM and remained at an unauthorized
location in Brooklyn, NY—the Stillwell Avenue Train Station
—at 11:49 PM. See Resp. at 7. RRC staff notified the BOP
duty officer, and Petitioner was placed on escape status. See
id.
On the morning of July 9, 2022, RRC staff successfully
contacted Petitioner and instructed him to report to the RRC
facility. See Magnusson Decl. ¶ 8. Petitioner reported to the
facility at approximately 10:18 AM and was immediately
placed on building restriction. See Dkt. No. 1-2 at 2 (“Initial
Incident Report”). RRC staff issued and delivered an incident
report to Petitioner that afternoon, charging Petitioner with
violating BOP Code 200 (Escape with Subsequent Voluntary
Return within 4 Hours) and Code 316 (Being in an
Unauthorized Location). See Magnusson Decl. ¶ 8.
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*2 On July 11, 2022, RRC staff issued a revised incident
report, upgrading Petitioner's Code 200 violation to Code 102
(Escape from Non-Secure Institution Including Community
Confinement). See Dkt. No. 17-6 at 2 (“Revised Incident
Report”); compare Initial Incident Report with Dkt. No. 1-2
at 4. 2 On the afternoon of July 11, 2022, RRC staff attempted
to deliver the Revised Incident Report to Petitioner but, due
to a communication break down between RRC staff and
Petitioner, it appears Petitioner never received the Revised
Incident Report. See Pet. at 9.
Later that day, despite being on building restriction, Petitioner
walked out of the RRC facility without permission. See
Magnusson Decl. ¶ 10. Petitioner eventually returned
voluntarily, but RRC staff issued another incident report
charging Petitioner with escape. See id.
On July 12, 2022, RRC staff and the BOP coordinated with
the U.S. Marshals to remand Petitioner to a secure facility.
See Dkt. No. 17-10 at 2. Petitioner remained in secure
confinement until his release back to community confinement
at the RRC on March 14, 2024. See Dkt. No. 31 at 1 (“Letter”).
On July 27, 2022, RRC staff conducted a Center Discipline
Committee (“CDC”) hearing to adjudicate the Revised
Incident Report (“CDC Hearing”). See Magnusson Decl. ¶ 9;
Dkt. No. 17-7 at 2–4 (“CDC Report”). At the CDC Hearing,
Petitioner admitted to straying out of bounds on July 8, 2022.
See CDC Report at 2–3. As such, RRC staff found Petitioner
violated Code 102 and 316 and recommended a loss of thirty-
one days of GCT and imprisonment at a secure facility. See id.
at 3–4. On August 5, 2022, as required by BOP policy, a BOP
disciplinary hearing officer (“DHO”) reviewed and adopted
the CDC's recommendations in full. See Magnusson Decl. ¶
9; CDC Report at 4. A copy of the CDC report, certified by
the DHO, was given to Petitioner on August 8, 2022. See Pet.
at 7–8. Petitioner first learned of the Code 102 violation when
reviewing the CDC report. Id.
Petitioner unsuccessfully appealed the CDC's decision via
the BOP's administrative remedy program. Magnusson Decl.
¶ 16; Dkt. No. 17-12 at 3–6. Once he exhausted his
administrative remedies, Petitioner filed the instant Petition
on February 10, 2023. See Pet.
III. PETITION
Petitioner seeks federal habeas corpus relief, stating five
claims that allege the BOP violated the Fifth Amendment
Due Process Clause and other statutory rights. See id. In his
first three claims relating to the adjudication of the Revised
Incident Report, Petitioner contends that the BOP violated
his due process rights when: (1) the DHO review was held
in his absence; (2) the CDC Hearing was held eighteen
days after the Initial Incident Report was issued; and (3) the
BOP did not grant Petitioner the requisite 24-hour notice of
the change in charge from Code 200 to Code 102. See id.
at 5–10. Petitioner next argues that (4) his procedural due
process rights were violated when the BOP remanded him to a
secure facility without any process. 3 See id. at 10–11. Lastly,
Petitioner contends (5) that the BOP failed to accurately apply
Petitioner's First Step Act (“FSA”) credits to his sentence.
See id. at 11–13. Petitioner also requests the Court to appoint
counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B). See id. at
16. Respondent opposes all five counts and seeks to dismiss
the Petition. See Resp. at 4–5.
IV. DISCUSSION
A. Jurisdiction
*3 Habeas corpus relief is available if an individual is “in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3). A petition is
properly brought pursuant to 28 U.S.C. § 2241 where a federal
prisoner challenges the execution of their sentence, rather
than its imposition. See Adams v. United States, 372 F.3d 132,
134–35 (2d Cir. 2004); Jiminian v. Nash, 245 F.3d 144, 146–
47 (2d Cir. 2001). Execution of a sentence includes prison
disciplinary hearings, so a Section 2241 petition is the proper
means to challenge a petitioner's disciplinary hearings. See
Adams, 372 F.3d at 135. Petitions filed under Section 2241
must name the petitioner's warden as the respondent and be
filed in the district of the petitioner's confinement. 28 U.S.C. §
2241(a); Rumsfeld v. Padilla, 542 U.S. 426, 435, 447 (2004).
Here, Petitioner challenges the impact of an allegedly
unlawful disciplinary hearing and was incarcerated at FCI-
Ray Brook in the Northern District of New York when
he commenced the instant action. Accordingly, the Section
2241 Petition is the appropriate procedural vehicle to address
Petitioner's grievances, see Adams, 372 F.3d at 135, and
Petitioner filed suit in the proper court, see Padilla, 542 U.S.
at 447.
B. Petitioner's Claims
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1. Claim I: DHO Review
Petitioner argues the BOP violated his due process rights
when it did not afford him the opportunity to attend and
present documentary evidence and witnesses at the DHO
review. See Pet. at 5–6.
In Wolff v. McDonnell, the Supreme Court held that prisoners
have the right to attend their disciplinary hearing, including
the right to “call witnesses and present documentary evidence
in [their] defense.” 418 U.S. 539, 566 (1974); see also
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.
445, 454 (1985). If the disciplinary hearing takes the form
of a CDC hearing, BOP policy requires that a DHO review
and certify the CDC's findings. See Mansa v. United States,
No. 16-CV-644, 2019 WL 121681, at *13 n.4 (D. Conn.
Jan. 7, 2019). In such scenarios, Wolff does not mandate
that a prisoner receive two disciplinary hearings, one before
the CDC and another before a DHO. See id. (“[Petitioner]
received an in-person hearing with the CDC and made a
statement. The CDC hearing paperwork was forwarded to
the DHO for review and certification pursuant to [BOP]
policy. The DHO completed his review and certified the CDC
hearing.... [Petitioner is] not entitled to an in-person DHO
hearing or a separate DHO report.”); Colon v. Tellez, No. 20-
CV-5252, 2022 WL 521524, at *4 n.8 (E.D.N.Y. Feb. 22,
2022) (finding that the petitioner was not entitled to a DHO
hearing after receiving a CDC hearing).
Here, Petitioner received the CDC Hearing. Petitioner
attended the CDC Hearing and had an opportunity to
call witnesses and present documentary evidence, satisfying
Wolff’s constitutional requirements. See CDC Report at 2. As
such, Petitioner possessed no constitutional right to attend the
DHO review or participate in a separate DHO hearing. Since
the Court finds that Petitioner's absence at the DHO review
did not violate due process, Claim I is denied.
2. Claim II: Timing of the CDC Hearing
Petitioner next argues that the timing of the CDC Hearing
violates 28 C.F.R. § 541.7(c) and, consequently, violates his
due process rights. See Pet. at 6–7. Section 541.7(c) states
that a unit disciplinary committee (“UDC”) “will ordinarily
review [an] incident report within five work days after it is
issued.” 28 C.F.R. § 541.7(c). Petitioner states that the CDC
Hearing, held on July 27, 2022, occurred eighteen days after
the publication of the Initial Incident Report, violating Section
541.7(c). See Pet. at 7.
*4 Assuming Section 541.7(c) applies, a plain reading
of the regulation belies Petitioner's contention that RRC
staff violated Section 541.7(c) by waiting eighteen days
to hold the CDC Hearing. District courts both inside and
outside the Second Circuit have found the five-day period
is not a compulsory rule because of the inclusion of the
word “ordinarily.” See Epps v. Beard, No. 20-CV-44, 2022
WL 1462762, at *5 (E.D. Ky. May 9, 2022) (“Through
its inclusion of the qualifying term ‘ordinarily,’ the rule
intrinsically contemplates the possibility that prison staff
might need additional time to provide an inmate a [hearing].”)
(internal quotation marks omitted); Linares v. Terris, No. 17-
CV-11085, 2018 WL 1709027, at *4 (E.D. Mich. Apr. 9,
2018) (finding that the use of “ordinarily” makes clear that
the five-day period in Section 541.7(c) is “an aspirational,
not a mandatory, requirement”); Berkun v. Terrell, No. 11-
CV-3237, 2011 WL 4753459, at *3 (E.D.N.Y. Oct. 7, 2011)
(“[T]he inclusion of the word ‘ordinarily’ in the regulation
suggests flexibility; it does not prohibit holding the hearing
after [five] days.”). 4 With this guidance, the Court rejects
Petitioner's contention that the delay in holding the CDC
Hearing violated Section 541.7(c). Absent a violation of the
regulation, the Court finds Petitioner's due process rights have
not been violated. Claim II is denied.
3. Claim III: Notice Requirement
Petitioner contends that his due process rights were violated
when the CDC failed to provide him with advance written
notice of the Code 102 disciplinary charge, and, consequently,
prohibited him from mounting an effective defense at his
CDC Hearing. See Pet. at 7–10.
Prior to a disciplinary hearing, a prisoner must have 24-
hour written notice of the charges brought against him. See
Wolff, 418 U.S. at 564; Hill, 472 U.S. at 454. The purpose
of the notice requirement is “to inform [the prisoner] of the
charges and to enable him to marshal the facts and prepare
a defense.” Wolff, 418 U.S. at 564. If a charge is amended
after notice is already given, the BOP need not give new
notice if the discrepancy does not impair the petitioner's
ability to prepare a defense. See Northern v. Hanks, 326 F.3d
909, 911 (7th Cir. 2003) (“Because the factual basis of the
investigation report gave [petitioner] all the information he
needed to defend against the trafficking charge, the reviewing
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authority's modification [of the charges] did not deprive
[petitioner] of his due process rights.”); Holt v. Caspari, 961
F.2d 1370, 1373 (8th Cir. 1992) (finding no due process
violation when a charge was upgraded without new notice
because the incident report “gave [the prisoner] all of the
information he needed to make his defense”); Rogers v. Buss,
No. 07-CV-569, 2008 WL 2151431, at *2 (N.D. Ind. May
21, 2008) (“Changing the rule with which [petitioner] was
accused of violating did not deny him due process because
the conduct report stated facts that supported the corrected
charge and provided the facts he needed to prepare his defense
against that charge.”).
Respondent argues Petitioner received the Revised Incident
Report and, consequently, had adequate notice of the Code
102 charge. See Resp. at 7. Petitioner contests this assertion,
see Pet. at 9, but both parties agree that on July 11, 2022,
RRC staff at least attempted to give Petitioner the Revised
Incident Report with the Code 102 charge. See Resp. at 7;
Pet. at 9. Petitioner states that RRC staff never explained to
him that the Initial Incident Report had been updated, and,
therefore, he refused RRC staff's attempt to give him the
Revised Incident Report on July 11, 2022, as he believed he
already possessed the correct incident report. See Pet. at 9.
Respondent does not directly dispute Petitioner's version of
the events, but simply states Petitioner refused the Revised
Incident Report. See Resp. at 7. Given these allegations, the
Court finds that Petitioner was not aware he was charged with
Code 102 before the CDC Hearing.
*5 Respondent also argues that Petitioner received the Initial
Incident Report, and, therefore, notice of the Code 102 charge.
See Resp. at 24. Specifically, Respondent argues Petitioner
“failed to submit the version of the [Initial] Incident Report he
allegedly received, and instead has submitted the very same
incident report as Respondent [which showed the Code 102
charge].” Resp. at 24. Respondent concludes that this proves
Petitioner received notice of the Code 102 charge. See id.
Respondent is factually incorrect. Petitioner submitted two
incident reports. The first submission shows an incident report
delivered on July 9, 2022, with a Code 200 violation. See
Initial Incident Report. The second shows the Incident Report
with a Code 102 violation, delivered on July 11, 2022, which
Petitioner states he did not receive until August 8, 2022—well
after the CDC Hearing. See Dkt. No. 1-2 at 4; Pet. at 9. As
such, the Court rejects this argument.
Respondent next argues that, even if Petitioner was not aware
of the Code 102 charge, the differences between a Code 200
Escape and a Code 102 Escape did not impair Petitioner's
ability to prepare an adequate defense. See Resp. at 24–25.
Therefore, Respondent concludes, the lack of awareness did
not violate Petitioner's due process. See id.
As support, Respondent cites to a district court ruling from
the Eastern District of California. See Reed v. Babcock, No.
13-CV-2450, 2015 WL 1932526, at *2 (E.D. Cal. Apr. 15,
2015). In Reed, a petitioner who was initially charged with a
Code 102 violation was instead found guilty of a downgraded
Code 200 violation; the petitioner argued that, since he had
not received notice of the Code 200 violation until after
the disciplinary hearing, the guilty finding violated his due
process rights. See id. at *2. The court in Reed found that
the revision to the charges without new notice did not violate
the petitioner's due process rights as the petitioner's defense
did not “implicate the distinction between [C]ode 200 escape
and [C]ode 102 escape[,]” and that the petitioner had all the
information he needed to defend against the Code 200 charge
from the initial notice. Id. at 3.
Unlike in Reed, Petitioner did not receive notice of the
different charge that was more severe than the one initially
charged. See id. (finding “notice of the most severe such
charge that might be supported by those facts[ ] provided
[the] petitioner with exactly what Wolff requires.”) (emphasis
added). Moreover, Petitioner argues he would have presented
evidence, including witness testimony, that he returned to
confinement within four hours of his initial escape in an effort
to have the Code 102 charge downgraded to a Code 200
charge. See Trav. at 12–13; cf. Reed, 2015 WL 1932526, at
*3 (“Nothing in the record suggests that petitioner's defense
at the hearing would have differed” depending on how the
escape was charged). Therefore, the Court concludes that,
as Petitioner's ability to present a mitigation defense was
impaired by the lack of notice, the lack of notice violated his
due process rights.
However, even if a due process violation occurs, “it is entirely
inappropriate to overturn the outcome of a prison disciplinary
proceeding because of a procedural error without making the
normal [ ] assessment as to whether the error was harmless
or prejudicial.” Powell v. Coughlin, 953 F.2d 744, 750 (2d
Cir. 1991); see also Green v. Christensen, No. 23-CV-127,
2024 WL 1619392, at *3 (N.D.N.Y. Apr. 15, 2024) (“[P]rior
to receiving judicial relief for a due process violation in a
disciplinary hearing, a prisoner must demonstrate that the
violation harmed them in some way.”); Mendez v. Bell, No.
16-CV-2123, 2018 WL 4039321, at *5 (D. Conn. Aug. 23,
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2018) (finding an absence of prejudice “cannot make out a
due process violation”). “[T]he proof of prejudice must be
definite and not speculative.” United States v. Birney, 686
F.2d 102, 105–06 (2d Cir. 1982); see also Green, 2024 WL
1619392, at *3 (same). The burden of proving prejudice rests
with the petitioner. See Green, 2024 WL 1619392, at *3.
*6 While Petitioner has established a violation of due
process, Petitioner does not demonstrate prejudice. For
example, Petitioner does not argue that he would not
have been remanded from home confinement to secure
confinement with the Code 200 violation. As such,
Petitioner's argument that he suffered harm is at most
speculative, and speculative prejudice is not enough to “make
out a due process violation.” Mendez, 2018 WL 4039321,
at *5; see also Powell, 953 F.2d at 750 (finding that when
prejudice is only speculative, a technical violation of due
process does not require judicial intervention). The Court
concludes that, as Petitioner failed to make the requisite
showing of prejudice, judicial relief is not warranted. Claim
III is denied.
4. Claim IV: Revocation of Home Confinement
Petitioner argues the BOP violated his constitutional rights
when it revoked his home confinement without the requisite
due process. See Pet. at 10–11. Respondent contends that
Petitioner lacks a liberty interest in home confinement and,
therefore, was not entitled to process prior to its revocation.
See Resp. at 14.
a. Liberty Interest Jurisprudence
To state a procedural due process claim, a prisoner must
show that they have a protected liberty interest. See Kerry
v. Din, 576 U.S. 86, 90 (2015) (noting that no process is
due when no liberty interest is at stake). A prisoner has no
liberty interest in being placed outside of a traditional prison
setting or being “conditionally released before the expiration
of a valid sentence.” Greenholtz v. Inmates of Neb. Penal
Corr. Complex, 442 U.S. 1, 7 (1979). However, government
action in the carceral environment can create a liberty interest.
See Wolff, 418 U.S. at 557–58 (holding that a state statute
granting GCT created a liberty interest in a “shortened prison
sentence”).
District courts are far from uniform on what, if any, liberty
interest is provided to an individual placed on continued
home confinement pursuant to the CARES Act. Compare
Aurecchione v. Falco, No. 22-CV-4538, 2023 WL 6255529,
at *12 (S.D.N.Y. Sep. 25, 2023) (explaining that “[e]volving
caselaw in the Second Circuit reinforces the existence
of [a] right to process” in home confinement cases and
recognizing a liberty interest in maintaining continued home
confinement); Freeman v. Pullen, 658 F. Supp. 3d 53, 66–67
(D. Conn. 2023) (concluding that a habeas petitioner had a
liberty interest in continued home confinement) with Triplett
v. FCI Herlong Warden, No. 22-CV-83, 2023 WL 2760829,
at *3 (E.D. Cal. Apr. 3, 2023) (finding the petitioner had no
liberty interest in remaining on home confinement); Touizer v.
Attorney General of the United States, No. 20-CV-5169, 2021
WL 371593, at *4 (S.D. Fla. Feb. 3, 2021) (same). Although
the Court finds the precedent within the Second Circuit
persuasive, the Court will engage in its own independent
analysis to determine whether Respondent created a liberty
interest in the CARES Act home confinement program. The
Court first turns to the liberty interest jurisprudence involving
other community confinement programs.
District courts assess potential liberty interests using the
guidance established by Morrissey v. Brewer, 408 U.S. 471
(1972). In Morrissey, two prisoners filed habeas petitions
after their parole was revoked without a hearing. See 408
U.S. at 472–74. Each petitioner claimed that they retained a
liberty interest in remaining on parole and that the arbitrary
revocation violated their due process rights. See id. at 474. To
determine if a liberty interest existed in remaining on parole,
the Supreme Court examined the nature and conditions of
parole. See id. at 477–82. The Supreme Court explained
that the nature of parole “is release from prison, before the
completion of sentence, on the condition that the prisoner
abide by certain rules during the balance of the sentence.” Id.
at 477. Since parolees, while subject to certain limitations,
could still “be gainfully employed and [are] free to be
with family and friends and to form the other enduring
attachments of normal life,” the Supreme Court concluded
that the parolees’ “condition is very different from that of
confinement in a prison.” Id. at 482.
*7 The Morrissey Court also noted that the nature of the
parole program included “an implicit promise that parole will
be revoked only if [parolees] fail[ ] to live up to the parole
conditions.” Morrissey, 408 U.S. at 482.; see also id. at 479
(“Implicit in the system's concern with parole violations is the
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notion that the parolee is entitled to retain his liberty as long
as he substantially abides by the conditions of his parole.”).
Applying the then-governing “grievous loss” standard, the
Supreme Court concluded that the parole program created
a liberty interest as it possessed “many of the core values
of unqualified liberty and its termination inflicts a ‘grievous
loss’ on the parolee.” Id. at 482. Thus, termination of parole
required “some orderly process, however informal.” Id.
The Supreme Court applied the reasoning in Morrissey when
it reviewed a preparole program in Oklahoma's state prisons.
See Young v. Harper, 520 U.S. 143 (1997). In Young,
a prisoner spent five “uneventful” months in community
confinement pursuant to the preparole program after which
State authorities denied him parole and returned him to state
prison without process. See id. at 145–46. The prisoner filed
a habeas petition, claiming the revocation of his preparole
deprived him of liberty without due process. See id. at
146. The Supreme Court agreed, extending Morrissey to the
preparole program. See id. at 147. In coming to its decision,
the Supreme Court compared the preparole program to the
parole program in Morrissey with respect to the conditions
of liberty conferred. See id. at 148–152. The Supreme
Court noted that, though the preparole program restricted the
prisoner from certain activities, a participant could still live at
home, work, and “live[ ] a life generally free of the incidents
of imprisonment,” just as the parolees in Morrissey could. Id.
at 148. Additionally, as in Morrissey, the preparole program
included an implicit promise that a preparole would remain
free absent a violation of the program. See id. at 150–51. The
Supreme Court concluded that, as the preparole program was
“equivalent to parole,” the preparole held a liberty interest
in his freedom entitling him to the procedural protections of
Morrissey. Id. at 147.
Following Morrissey and Young, the Second Circuit has
applied Morrissey to analyze whether the Due Process Clause
creates a liberty interest in various community confinement
programs by comparing the community confinement program
to the liberty interest found in parole and preparole programs.
See Holcomb v. Lykens, 337 F.3d 217, 222–25 (2d Cir.
2003) (applying Morrissey to Vermont's temporary furlough
program and finding petitioner received the procedural
protections outlined in Morrissey); Anderson v. Recore, 317
F.3d 194, 200 (2d Cir. 2003) (finding Morrissey held that
once community confinement similar to parole is granted,
“it cannot [be] take[n] ... away without according the inmate
procedural due process”); Kim v. Hurston, 182 F.3d 113, 118–
119 (2d Cir. 1999) (applying Morrissey to a New York work
release program and holding the prisoner had a liberty interest
in remaining in the program).
Against this backdrop, the Court turns to its examination of
the present facts.
b. Respondent's Preliminary Arguments
As a preliminary matter, Respondent argues that the Court
should dismiss Claim IV as the Court “has no authority
to grant Petitioner's request for immediate ... placement in
home confinement because those decisions are within the
BOP's sole discretion.” Resp. at 10. The Court recognizes that
the BOP generally has sole discretion in the placement and
transfer of prisoners. See 18 U.S.C. § 3621(b) (establishing
that the “[BOP] shall designate the place of the prisoner's
imprisonment” and “may at any time[ ] ... direct the
transfer of a prisoner from one penal or correctional
facility to another,” and that “a designation of a place of
imprisonment ... is not reviewable by any court”); see also
Touizer, 2021 WL 371593, at *3 (finding that the BOP has
“exclusive authority ... to designate the place of an inmate's
confinement”).
*8 However, the Court finds the comparison to Touizer
unpersuasive. Despite the BOP's broad authority under
Section 3621(b), judicial review is appropriate where
the BOP's actions allegedly violate the Constitution. See
Freeman, 658 F. Supp. 3d at 63 (citing cases). As Claim
IV turns on constitutional questions, the Court rejects
Respondent's argument that the BOP's authority prevents
judicial review.
Respondent next argues that the Morrissey and Young line of
cases do not apply. See Resp. at 15–17. Instead, Respondent
asserts that Meachum v. Fano, 427 U.S. 215 (1976) controls.
See id. In Meachum, the Supreme Court ruled that a prisoner
had no liberty interest in his prison setting and that a
prison administration could transfer a prisoner to another
prison with no process without running afoul of the Due
Process Clause. Meachum, 427 U.S. at 228–29. Respondent
argues that Meachum applies because, despite being on home
confinement, Petitioner remains in BOP custody as “a federal
inmate, serving an ongoing federal sentence,” and, thus “[is]
less like the parolees and preparolees ... in Morrissey and
Young, and more like the inmate[ ] in Meachum.” Resp. at 17.
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The Court finds Respondent's argument unpersuasive. In
Young, Oklahoma made a similar argument, claiming that
because the preparole remained in custody like the petitioner
in Meachum, Meachum should control. See Young, 520 U.S.
at 148. The Supreme Court rejected the argument, noting
the preparolees’ actual conditions more closely resembled
Morrissey despite Oklahoma's technical characterization
of the preparolees’ custody. See id. at 148–49; see also
Recore, 317 F.3d at 200 (“Because [the petitioner], like
the petitioner[ ] in Morrissey ... lived outside the prison,
a comparison to the ordinary conditions of prison life is
inappropriate.”).
Here, as in Young and Morrissey, Petitioner's home
confinement allowed Petitioner to live at home “free of the
incidents of imprisonment.” Young, 520 U.S. at 148. Given
the conditions of Petitioner's home confinement, the Court
will apply Morrissey to decide Claim IV.
c. Morrissey Test
No controlling authority has yet answered whether revocation
of home confinement granted pursuant to the CARES Act
requires the procedural protections granted to parolees by
Morrissey. 5 The Court is also unaware of any binding
precedent that addresses the constitutional rights of prisoners
on home confinement pursuant solely to 18 U.S.C. § 3624(c)
(2). Accordingly, the Court will use Morrissey to undertake an
independent examination of Petitioner's constitutional rights
on home confinement.
*9 To successfully prove the existence of a liberty interest
in home confinement, Petitioner must plausibly allege (1):
that the conditions of the home confinement program are
sufficiently similar to the conditions of the parole program
in Morrissey with respect to the extent and conditions of
liberty conferred; and (2) that the home confinement program
implicitly promised that Petitioner's home confinement status
would continue absent misconduct. Morrissey, 408 U.S. at
481–82; Young, 520 U.S. at 147–48; see also Holcomb, 337
F.3d at 222–23; Cardoza, 2022 WL 3212408, at *8.
i. Liberty Conferred
Petitioner contends that the first prong is met because the
liberty conferred by his home confinement “bears such [a]
strong resemblance to the [p]arole [p]rogram in Morrissey.”
Pet. at 10. Petitioner explains that his home confinement
allowed him to live at home, take care of his brother, work,
and “form certain attachments common to normal life,” and
concludes that, as in Morrissey, his living conditions are
distinct from normal “confinement in a prison.” Id. at 10–11.
With respect to the extent of the liberty conferred, some
factual differences do exist between the home confinement
program and the parole program in Morrissey. For example,
the parolee in Morrissey was free to travel within his
“community,” Morrissey 408 U.S. at 478, while Petitioner
required permission to travel anywhere but home and work.
See Agreement at 2. Despite these stricter rules, “the
privileges available in [home confinement] are worlds apart
[ ] from eating prisoner food in a cell.” See Ortega v.
U.S. Immigration and Customs Enforcement, 737 F.3d 435,
439 (6th Cir. 2013). Thus, the Court is unconvinced that
the differences are so stark as to prevent a finding that
home confinement “include[s] many of the core values of
unqualified liberty” found in Morrissey. 408 U.S. at 482. As
such, the Court holds that Petitioner satisfies the first step of
the Morrissey analysis.
ii. Implicit Promise
Turning to the implicit promise analysis, Respondent argues
no implicit promise arises from “any statutory, regulatory,
or other governing authority,” and, as such, no “reasonable
inmate [could] conclude that he is entitled to remain in home
confinement” absent misconduct. Resp. at 19.
“The Morrissey line of cases does not specify where such
an implicit promise must originate.” Cardoza, 2022 WL
3212408, at *12. An implicit promise of continuing liberty
need not be communicated via a statutory or regulatory
authority. See Morrissey, 408 U.S. at 492–93 (Douglas, J.,
dissenting) (stating that the majority found an indication of
an implicit promise despite the statute governing the parole
program providing the warden complete discretion to revoke
parole at any time). “Imposing such a requirement would be
more akin to requiring an explicit promise, as opposed to an
implicit one.” Cardoza, 2022 WL 3212408, at *12.
Historically, courts have found an implicit promise in various
sources. See Morrissey, 408 U.S. at 479, 482 (finding an
implicit promise in the nature of parole and the “system's
concern with parole violations”); Holcomb, 337 F.3d at 223
(examining the community confinement statute to determine
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if an implicit promise exists); Pugliese v. Nelson, 617 F.2d
916, 922 (2d Cir. 1980) (“To qualify as constitutionally
protectible ‘liberty,’ the prisoner's interest must be ... one that
he would normally expect to have as a matter of custom and
practice or of fundamental decency and fairness.”); Ortega,
737 F.3d at 439 (“What process is due ... may well turn on
the notice given to the individual before he was allowed to
serve a prison sentence at home.”). Thus, the Court rejects
Respondent's contention.
*10 Petitioner argues that the Community Based Program
Agreement governing Petitioner's home confinement
implicitly promises that his home confinement would not
be revoked without misconduct. See Trav. at 9. Specifically,
the Agreement states that “failure to remain at the required
locations [or heed other rules in the Agreement] may
result in disciplinary action and/or prosecution for escape.”
Agreement at 2. The Agreement also explains that if
Petitioner “decline[s] to participate in the recommended
Home Detention program [he] may face administrative
reassignment out of the residential reentry program.” Id.
Petitioner argues that one could reasonably infer based on
such language that reincarceration could only stem from
misconduct. See Trav. at 9. Further, the Agreement does not
state that home confinement could be arbitrarily terminated.
Petitioner contends that the lack of such language, coupled
with the disciplinary warnings described above, give “no
hint” that he may be removed from home confinement
without cause, thus creating a reasonable expectation that he
would remain on home confinement “except by committing
[a] major infraction.” Trav. at 10.
Petitioner also notes that the then-Director of the BOP,
Michael Carvajal “indicated in a 2020 address to the Senate
Committee on the Judiciary that he expected those removed to
home confinement pursuant to the CARES Act would remain
on home confinement” barring misconduct. Id. Furthermore,
BOP General Counsel Ken Hyle wrote in a report that
those on home confinement pursuant to the CARES Act
would only be “transferred back to secure correctional
facilities if there are any significant disciplinary infractions or
violations of the home confinement agreement.” Id. Petitioner
argues that the statements from BOP leadership make clear
that the BOP “does not employ a widespread practice of
reincarcerating individuals” released on home confinement.
Id. This, Petitioner argues, could “reasonably [ ] instill an
expectation that one would be permitted to continue on
home confinement absent good cause for revocation.” Id.
The Court agrees with Petitioner, finding an implicit promise
that Petitioner would remain on home confinement absent
misconduct.
Accordingly, the Court concludes that Petitioner possesses
a liberty interest in home confinement that required some
process prior to its permanent revocation.
d. Procedure Due
The Court must next examine the process due. No
controlling authority dictates what process a prisoner on
home confinement should receive prior to its revocation; nor
does either party brief the issue. Considering the similarities
between home confinement and the parole program in
Morrissey, the Court concludes that Morrissey protections
apply here. See Young, 520 U.S. at 152–53 (establishing that,
since preparole was sufficiently like parole, a preparole was
entitled to the procedural protections set forth in Morrissey);
Tompkins, 2022 WL 3212368, at *11–12 (holding that
Morrissey protections applied to a prisoner whose home
confinement was revoked without due process). As such,
prior to permanently revoking home confinement, the BOP
must provide the Morrissey procedural protections described
below.
In Morrissey, the Supreme Court laid out a two-hearing
process to satisfy a parolee's due process. Morrissey, 408
U.S. at 485–90. Following the detention of a parolee for an
alleged violation of parole conditions, “some minimal inquiry
[must] be conducted ... near the place of the alleged parole
violation or arrest and as promptly as convenient after arrest
while information is fresh and sources are available.” Id. at
485. This preliminary hearing requires only a showing of
“probable cause” to justify the parolee's continued detention.
Id. The adjudicator of the preliminary hearing must “not [be]
directly involved in the case” but “need not be a judicial
officer.” Id. at 485–86. The parolee must also receive notice
of the hearing which “should state what ... violations have
been alleged.” Id. at 487; see Tompkins, 2022 WL 3212368,
at *12. At the hearing, the parolee may testify on his own
behalf, present documentary evidence, call witnesses, and
cross examine adverse witnesses. See Morrissey, 408 U.S.
at 487. Upon returning a decision, the adjudicator must
provide some type of summary of the evidence presented
and their conclusions. See id. If a determination of probable
cause is made in the preliminary hearing, a parolee may
be constitutionally detained pending the second Morrissey
hearing. See id.
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*11 Following a probable cause finding in the preliminary
hearing, a revocation hearing is still required to permanently
revoke parole. See Morrissey, 408 U.S. at 487–88; Williams
v. Ward, 556 F.2d 1143, 1156 (2d Cir. 1977) (“A later
revocation hearing was required, prior to the final decision
on revocation.”). The revocation hearing must “be tendered
within a reasonable time after the parolee is taken into
custody.” Morrissey, 408 U.S. at 488; see also id. (finding
a delay of two months to be reasonable). To satisfy the
“minimum requirements of due process,” the parolee must
receive:
(a) written notice of the claimed
violations of parole; (b) disclosure
to the parolee of evidence against
him; (c) opportunity to be heard in
person and to present witnesses and
documentary evidence; (d) the right
to confront and cross-examine adverse
witnesses (unless the hearing officer
specifically finds good cause for not
allowing confrontation); (e) a ‘neutral
and detached’ hearing body such as a
traditional parole board, members of
which need not be judicial officers or
lawyers; and (f) a written statement by
the factfinders as to the evidence relied
on and reasons for revoking parole.
Id. at 489.
In detailing the requirements of the revocation hearing, the
Supreme Court did not specify the burden of proof required
to permanently remand a parolee to secure custody. However,
the Supreme Court stressed that the revocation hearing does
not “equate ... to a criminal prosecution in any sense.” Id. at
489. Thus, the Court concludes that the high standard of a
criminal prosecution is inappropriate. Yet, the Supreme Court
also noted that the revocation hearing “must be the basis for
more than determining probable cause.” Id. at 488. Therefore,
an evidentiary standard between “beyond a reasonable doubt”
and “probable cause” is appropriate. Since the preponderance
standard is used in revocation hearings for similar programs
like probation and supervised release, see 18 U.S.C. § 3583(e)
(3); United States v. Bujak, 347 F.3d 607, 609 (6th Cir. 2003);
United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996), the
Court concludes that a “preponderance of the evidence” is the
appropriate evidentiary burden.
e. Process Received
The Court next examines whether the process Petitioner
received met these requirements. Following numerous
alleged violations of the home confinement program, RRC
staff, BOP staff, and the United States Marshals coordinated
to remand Petitioner to secure confinement on July 12, 2022.
See Magnusson Decl. ¶ 12. On July 27, 2022, Petitioner
faced a neutral CDC board that afforded Petitioner all the
procedural protections required by a Morrissey preliminary
hearing. Petitioner (1) had the opportunity to testify, call and
confront witnesses, and present evidence, see CDC Report at
2; (2) received a brief written summary of the evidence and
the CDC board's conclusions, including a recommendation
to keep Petitioner in secure custody, see id. at 3; and (3)
faced no significant delay between his remand to secure
custody on July 12, 2022, and the CDC Hearing on July
27, 2022. Considering the process Petitioner received, the
Court concludes Petitioner's secure confinement immediately
following his CDC Hearing did not violate Petitioner's due
process rights.
However, Petitioner never received a revocation hearing as
required by step two of Morrissey. Petitioner received a
DHO review after his CDC Hearing, see Magnusson Decl.
¶ 9; CDC Report at 4, but Petitioner was not notified of,
present for, or given the opportunity “to present witnesses
and documentary evidence” at a DHO review or any
associated hearing. Morrissey, 408 U.S. at 489. Therefore,
any DHO review or hearing did not satisfy the “minimum
requirements of due process” guaranteed to Petitioner by
Morrissey. Id. Accordingly, the Court finds that Respondent
violated Petitioner's due process rights in revoking his home
confinement without a proper revocation hearing as required
by Morrissey. With respect to Claim IV, the Petition is
granted.
f. Remedy
*12 In relation to the unconstitutional revocation of his
home confinement, Petitioner seeks “immediate release
(while awaiting [a] revocation hearing that complies with
[d]ue [p]rocess), [a] declaration that Respondents have
insufficient basis under the Due Process [C]lause to detain
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him ..., [and] an injunction against Petitioner's continued
imprisonment until his due process rights have been restored.”
Dkt. No. 1 at 7 (“Petition Application”). 6
“[T]he proper remedy for a due process violation is the
process itself.” Tompkins, 2022 WL 3212368, at *14; see
United States ex rel. Bey v. Conn. State Bd. of Parole,
443 F.2d 1079, 1089–90 (2d Cir. 1971) (concluding that the
proper remedy for an improper parole revocation hearing
was a new revocation hearing), vacated on other grounds
sub nom. Conn. State Bd. of Pardons v. Bey, 404 U.S. 879
(1971). Thus, the Court holds that the proper remedy for
Petitioner is not immediate release to home confinement but a
Morrissey revocation hearing. To the extent Petitioner argues
that his continued detention while awaiting the revocation
hearing is unconstitutional, the Court disagrees. Petitioner
received a preliminary hearing in accordance with Morrissey,
making his detention lawful for a “reasonable” period of time
while awaiting the revocation hearing. Petitioner was also
transferred back to community confinement at the RRC on
March 14, 2024. See Letter at 1. Now that Respondent is
on notice that a revocation hearing is required, the Court
finds that Petitioner's continued detention remains lawful
for a “reasonable” period. If needed, Petitioner's continued
detention can be revisited if the Respondent fails to provide
a timely revocation hearing following the publication of this
order. See Billiteri v. United States Bd. of Parole, 541 F.2d
938, 946 (2d Cir. 1976) (“If the case was before the court on
a petition for habeas corpus, it may order compliance within
a reasonable period, failing which it may order the petitioner
discharged from custody.”). Accordingly, Petitioner's request
for immediate release is denied without prejudice, subject
to renewal should the BOP neglect to provide a Morrissey
revocation hearing within a reasonable time frame.
Petitioner also seeks declaratory relief. See Pet. at 1. The
Declaratory Judgment Act (“DJA”) permits a federal court to
declare the rights of a party “whether or not further relief is
or could be sought.” 28 U.S.C. § 2201(a). The DJA “confers
a discretion on the courts rather than an absolute right upon
the litigant.” Public Service Comm'n of Utah v. Wycoff Co.,
344 U.S. 237, 241 (1952). Here, the Court has found a
constitutional violation in relation to the revocation of home
confinement and declaratory relief would prove duplicative.
Accordingly, the Court declines to exercise its discretion
under the DJA.
As for Petitioner's request for an injunction against continued
imprisonment, see Pet. Application at 7, the Court dismisses
the request as moot as Petitioner is no longer in secure
confinement.
5. Count V: First Step Act
*13 Petitioner's last claim accuses the BOP of failing to
accurately apply Petitioner's First Step Act (“FSA”) credits to
his sentence. See Pet. at 11–13.
A petitioner seeking relief pursuant to Section 2241 must
exhaust their administrative remedies. See Carmona v. United
States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.
2001). “This requires compliance with the BOP's four-step
Administrative Remedy Program.” Lallave v. Martinez, 609
F. Supp. 3d 164, 179 (E.D.N.Y. 2022) (citing 28 C.F.R. §
542.10(a)).
To exhaust the BOP's four-step Administrative Remedy
Program a prisoner must complete the following steps:
The first step of the prescribed process
entails making an effort to obtain
an early resolution of the matter by
raising the issue informally to staff.
In the event this avenue does not lead
to a successful resolution, the inmate
next may submit a formal written
[Administrative Remedy (“AR”)] to
the warden of the particular facility
involved, utilizing a designated BP–
9 form, within twenty days of the
relevant event. If the AR is denied, an
appeal may be taken to the appropriate
BOP Regional Director within twenty
calendar days of the date of denial. As
a fourth and final step, an unfavorable
decision from the Regional Director
may be appealed to the General
Counsel's office (also referred to as the
“Central Office” [or “CORC”]) within
thirty days of the date on which the
Regional Director rejects the inmate's
appeal.
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Barber v. Perdue, No. 11-CV-127, 2012 WL 5996342, at
*4 (N.D.N.Y. Nov. 9, 2012) (internal citations omitted). 7
In sum, “[n]o administrative appeal is fully exhausted until
the BOP's Central Office reviews it.” Reynolds v. Warden
of FCI Ray Brook, No. 16-CV-1264, 2019 WL 8064012, at
*3 (N.D.N.Y. Aug. 5, 2019). The burden of demonstrating
exhaustion rests with the petitioner. See Spring v. Schult, No.
08-CV-531, 2009 WL 3232183, at *1 (N.D.N.Y. Oct. 1, 2009)
(Kahn, J.).
A federal inmate's failure to exhaust the administrative
remedies available to him prior to commencing a Section
2241 action may “only be excused upon a showing of cause
and prejudice.” Carmona, 243 F.3d at 634. To demonstrate
legal “cause,” a petitioner must establish that “something
external to the petitioner, something that cannot be fairly
attributed to him,” prevented the petitioner from fully
exhausting his administrative remedies. Tineo v. United
States, 977 F. Supp. 245, 253 (S.D.N.Y. 1996) (quoting
Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Factors
that constitute “cause” include “interference by officials
that makes compliance with procedural rules impractical.”
Hinebaugh v. Wiley, 137 F. Supp. 2d 69, 75 (N.D.N.Y. 2001)
(cleaned up) (quoting Tineo, 977 F. Supp. at 253.) General and
conclusory allegations will not be enough to establish cause;
rather, a petitioner must plead specific facts. See Rosario v.
Quay, No. 15-CV-523, 2017 WL 337977, at *3 (D. Conn.
Jan. 23, 2017). To establish prejudice, a petitioner must
show “actual harm resulting from the alleged [interference].”
Hinebaugh, 137 F. Supp. 2d at 75.
*14 Petitioner and Respondent both agree that Petitioner
failed to fully exhaust his administrative remedies concerning
his FSA credits. See Pet. Application at 8; Resp. at 27.
Therefore, Count V will be procedurally barred unless the
Court excuses Petitioner's failure to exhaust under the “cause
and prejudice” test.
The Court first considers whether the BOP's failure to respond
to his BP-9 appeal establishes “cause.” See Trav. at 13–14.
The exhaustion rules instruct inmates to treat non-responses
to an administrative appeal as a denial. See 28 C.F.R.
§ 542.18; Zenquis v. Pullen, No. 22-CV-1151, 2023 WL
2931585, at *2 (D. Conn. Apr. 13, 2023). Thus, the lack of
response to the BP-9 cannot constitute “cause” as the non-
response did not prevent him from pursuing the remaining
administrative remedies. See Tineo, 977 F. Supp. at 253.
The Court next considers whether Petitioner's transfer from
FCI Ray Brook, where he filed the BP-9, constitutes “cause”
that should excuse his failure to exhaust. See Trav. at 13–14.
However, Petitioner provides no details as to how his transfer
from FCI Ray Brook made “compliance with procedural rules
impractical.” Hinebaugh, 137 F. Supp. 2d at 75 (cleaned
up). Without such detail, Petitioner's allegations are too
general and conclusory to adequately show that “he was
prevented from fully pursuing his administrative remedies
due to circumstances beyond his control.” Rosario, 2017
WL 337977, at *3. Conclusory allegations are not enough to
establish “cause.” See id. Without the requisite demonstration
of “cause,” the Court cannot excuse Petitioner's failure to
exhaust. Therefore, the Court dismisses Count V without
prejudice.
6. Right to Counsel
Petitioner also requests the Court to appoint counsel pursuant
to 18 U.S.C. § 3006A(a)(2)(B) “to supplement and/or perfect
his filing.” Pet. at 16.
“Where, as here, an evidentiary hearing is unnecessary, the
appointment of counsel to represent a pro se habeas Petitioner
rests in the court's discretion.” United States ex rel. Cadogan
v. LaVallee, 502 F.2d 824, 826 (2d Cir. 1974). A district court
“should not [exercise its discretion to appoint counsel] where
the petitioner has raised the relevant issues with sufficient
detail that the district court can thoroughly consider them.”
Florez v. Walker, No. 00-CV-1576, 2005 WL 1669826, at *1
(N.D.N.Y. July 16, 2005).
Here, Petitioner has raised his claims with clarity and, as no
evidentiary hearing is required, the Court finds no reason to
appoint counsel. Accordingly, Petitioner's request for counsel
is denied.
Lastly, the Court notes that a certificate of appealability is
not required for Petitioner to appeal the denial of his Petition
because the Petition was brought under 28 U.S.C. § 2241. See
Murphy v. United States, 199 F.3d 599, 601 n.2 (2d Cir. 1999)
(holding that the Antiterrorism and Effective Death Penalty
Act's certificate of appealability requirement does not apply
to Section 2241 petitions).
V. CONCLUSION
Accordingly, it is hereby:
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ORDERED, that that the Petition, Dkt. No. 1-1, is DENIED
AND DISMISSED with respect to Counts I, II, III, and V;
and the Petition, Dkt. No. 1-1, is GRANTED with respect to
Count IV; and it is further
ORDERED, that the BOP conduct a Morrissey revocation
hearing, within a reasonable amount of time, in accordance
with the requirements discussed in Section IV.B.4.d.; and it
is further
*15 ORDERED, that the Clerk enter judgment and close
this case; and it is further
ORDERED, that the Clerk serve a copy of this
Memorandum-Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 3950643
Footnotes
1 Page citations refer to the pagination generated by CM/ECF, the Court's electronic filing system.
2 As Petitioner notes, the Revised Incident Report also changed a few other details from the Initial Incident
Report. See Pet. at 8. However, none of these changes are of consequence here.
3 Petitioner also alleges that Respondent violated his substantive due process rights. See Pet. at 1. However,
outside of raising the issue in the introductory paragraph of his Petition, Petitioner does not again discuss
his substantive due process claim. “The first step in substantive due process analysis is to identify the
constitutional right at stake.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995). Without
identifying the constitutional right at issue, the Court cannot adjudicate the claim. Therefore, insofar as
Petitioner asserts a substantive due process claim, this is dismissed without prejudice.
4 Berkun reviewed the regulation when the allotted review time was three days. Compare 28 C.F.R. § 541.15(b)
(2010), with 28 C.F.R. § 541.7(c) (2024).
5 Although the Second Circuit has not yet addressed the issue of whether procedural protections are required
when CARES Act home confinement is revoked, district courts in the Second Circuit have examined the issue.
See Freeman, 658 F. Supp. 3d at 60–68 (applying Morrissey and finding the petitioner was entitled to due
process protections prior to revocation of home confinement granted by the CARES Act); Cardoza v. Pullen,
No. 22-CV-591, 2022 WL 3212408, at *6–14 (D. Conn. Aug. 9, 2022) (applying Morrissey but rejecting the
petitioner's due process claim as no implicit promise was made to the prisoner); Tompkins v. Pullen, No. 22-
CV-339, 2022 WL 3212368, at *4–15 (D. Conn. Aug. 9, 2022) (applying Morrissey and finding the petitioner
was entitled to due process protections prior to revocation of home confinement granted by the CARES Act).
Respondent agrees that no controlling authority exists but points the Court to several circuit and district court
cases outside of the Second Circuit that have touched on the issue. See Resp. at 19–20. However, none of
the cases cited by Respondent deal with the issue directly; therefore, the Court does not discuss them here.
6 The Court notes that Petitioner was released from secure custody to a halfway house in Brooklyn, New York
on March 14, 2024. Dkt. No. 31 at 1. If a federal court can no longer grant the relief sought to resolve a
controversy, subject matter jurisdiction is lost, and the matter becomes moot. See Martin-Trigona v. Shiff, 702
F.2d. 380, 386 (2d. Cir. 1983) (“The hallmark of a moot case or controversy is that the relief sought can no
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longer be given or is no longer needed.”). As Petitioner specifically requested release to home confinement,
see Pet. at 1, the Court finds the issue is not moot.
7 The exhaustion provisions imposed by the Prisoner Litigation Reform Act (“PLRA”) do not apply to habeas
corpus Petitions. See Carmona, 243 F.3d at 634 (“[W]e note that although ... the P[LRA] ... contains a
statutory administrative exhaustion requirement, ... the requirements of the [PLRA] do not apply to habeas
proceedings.”).
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2025 WL 2781320
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Dewell POINDEXTER, Petitioner,
v.
UNITED STATES of America, Respondent.
Case No. 1:24-cv-01258 (JLR)
|
Signed September 30, 2025
Attorneys and Law Firms
Dewell Poindexter, Otisville, NY, Pro Se.
Leslie A. Ramirez-Fisher, Joseph Anthony Pantoja, DOJ-
United States Attorney's Office, New York, NY, for
Respondent.
MEMORANDUM OPINION AND ORDER
JENNIFER L. ROCHON, United States District Judge:
*1 Dewell Poindexter (“Petitioner”) brings this petition
for a writ of habeas corpus (the “Petition”) challenging the
execution of his sentence pursuant to 28 U.S.C. § 2241.
Petitioner, who was incarcerated in a federal facility in New
York at the time of filing, alleges that the Federal Bureau
of Prisons (the “BOP”) miscalculated his federal sentence
by failing to award him credit for a period of time he was
incarcerated while serving a state sentence. See generally Dkt.
1 (“Pet.”). The Government opposes the Petition. See Dkt. 10
(“Opp.”); Dkt. 11 (“BOP Decl.”). For the reasons that follow,
the Petition is DENIED.
BACKGROUND
On September 11, 2000, Petitioner pleaded guilty to two
federal counts of possession with the intent to distribute
controlled substances in violation of 21 U.S.C. § 841(a)
(1). See United States v. Poindexter, 550 F. Supp. 2d 578,
579 (E.D. Pa. 2008); Dkt. 11-1 at 1. On January 19, 2001,
Petitioner was sentenced in the United States District Court
for the Eastern District of Pennsylvania to a 144-month term
of federal incarceration followed by eight years of supervised
release. See BOP Decl. ¶ 3; Dkt. 11-1 at 6. On May 2, 2008,
Petitioner's term of incarceration was reduced to 122 months
pursuant to 18 U.S.C. § 3582(c)(2). See Poindexter, 550 F.
Supp. 2d at 583; BOP Decl. ¶ 3; Dkt. 11-1 at 6.
On July 1, 2015, while on supervised release, Petitioner was
arrested for state controlled-substance and weapons offenses,
and on February 22, 2016, after Petitioner pleaded guilty as
to all charges, a state court sentenced Petitioner to a term
of incarceration in a state institution for five and a half to
eleven years. See BOP Decl. ¶ 4; Dkt. 11-2 at 1; Dkt. 11-6 at
1. Petitioner remained in continuous state custody from the
date of the arrest to his federal sentencing, and this time was
ultimately credited toward his state sentence. BOP Decl. ¶ 8;
Dkt. 11-4 at 2-3; Dkt. 11-1 at 2; Pet. at 14-15.
Petitioner was subsequently brought into the temporary
custody of the United States Marshall Service (“USMS”) to
attend a supervised release violation hearing in the Eastern
District of Pennsylvania on June 22, 2017. See BOP Decl.
¶¶ 4-6. The court found that Petitioner was in violation of
his federal supervised release, revoked its prior order of
supervised release, “and sentenced Petitioner to thirty-months
imprisonment to run consecutive to his state sentence.” Id. ¶
6; see Dkt. 11-3. On July 18, 2017, USMS returned Petitioner
to state custody with a federal detainer. See BOP Decl. ¶ 7.
On August 16, 2023, Petitioner completed his state sentence
and was returned to exclusive federal custody, pursuant to the
detainer, to serve his consecutive federal sentence. Id. ¶ 8; see
Dkt. 11-1 at 2; Dkt. 11-4 at 2-3. The BOP determined that
“there was no applicable jail credit to award to the federal
sentence” and “calculated Petitioner's full-term [release] date
as February 15, 2026, i.e., 30 months from August 16, 2023.”
BOP Decl. ¶ 9; see Dkt. 11-1 at 2; Dkt. 11-4 at 3.
*2 On November 29, 2023, Petitioner initiated a challenge
to the execution of his sentence by filing an informal-
resolution form to a correctional counselor pursuant to the
BOP's Administrative Remedy Program (the “ARP”), see Pet.
at 10, which allows certain federally incarcerated individuals
“to seek formal review of an issue relating to any aspect
of his/her own confinement,” 28 C.F.R. § 542.10(a); see
id. § 542.13(a) (“[A]n inmate shall first present an issue
of concern informally to staff, and staff shall attempt to
informally resolve the issue before an inmate submits a
Request for Administrative Remedy.”). Petitioner stated on
his informal-resolution form that he was being deprived of
credit toward his federal sentence for the period he was
incarcerated following his arrest on state charges in July
2015. See Pet. at 10-11. A case manager reviewed Petitioner's
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informal submission and informed Petitioner that he was
ineligible to receive the requested credit toward his federal
sentence. See id. at 12.
Petitioner was dissatisfied with the case manager's response
and, on December 28, 2023, submitted a formal written
administrative-remedy request to the Warden of his facility on
the appropriate BP-9 form, in accordance with the ARP. See
id. at 14; 28 C.F.R. § 542.14(a) (providing that formal requests
shall be made on a BP-9 form). The Warden denied the
request, explaining that the time Petitioner was incarcerated
on state charges prior to his 2017 federal sentencing had
been credited toward his state sentence and thus could not
be credited toward his federal sentence. See Pet. at 14-15.
Neither the Petition nor Petitioner's administrative-remedy
record indicates that he pursued an appeal of the Warden's
denial pursuant to the ARP. See Pet. at 15-21; BOP Decl. ¶
19; Dkt. 11-5 at 10; 28 C.F.R. § 542.15(a) (providing that
“[a]n inmate who is not satisfied with the Warden's response
may submit an Appeal on the appropriate form (BP-10) to
the appropriate Regional Director,” after which “[a]n inmate
who is not satisfied with the Regional Director's response
may submit an Appeal on the appropriate form (BP-11) to the
General Counsel,” which “is the final administrative appeal”).
LEGAL STANDARD
“Submissions by a pro se petitioner are held to less stringent
standards than formal pleadings drafted by lawyers,” and
“[c]ourts must liberally construe a pro se petition to raise
the strongest arguments it suggests.” Licausi v. Griffin,
460 F. Supp. 3d 242, 260 (E.D.N.Y. 2020) (citing Inoa v.
Smith, No. 16-cv-02708 (VEC) (JLC), 2018 WL 4110908, at
*12 (S.D.N.Y. Aug. 29, 2018), report and recommendation
adopted, 2019 WL 549019 (S.D.N.Y. Feb. 9, 2019)). Still, pro
se petitioners are “not exempt from compliance with relevant
rules of procedural and substantive law.” Banner v. Royce,
525 F. Supp. 3d 417, 418 (E.D.N.Y. 2021) (quoting Gutierrez
v. Capra, No. 14-cv-06887 (KAM), 2019 WL 1508454, at *7
(E.D.N.Y. Apr. 5, 2019)).
“A writ of habeas corpus under § 2241 is available to a
federal prisoner who does not challenge the legality of his
sentence, but challenges instead its execution subsequent to
his conviction.” Rivera-Perez v. Stover, 757 F. Supp. 3d 204,
207 (D. Conn. 2024) (quoting Carmona v. U.S. Bureau of
Prisons, 243 F.3d 629, 632 (2d Cir. 2001)). “Thus, section
2241 petitions are appropriately used to challenge ... sentence
calculations.” Id.; see id. at 206 (reviewing § 2241 petition
based on BOP's alleged “miscalculation of [petitioner's]
time credits under the First Step Act”); United States v.
Borland, No. 18-cr-00487 (KPF), 2024 WL 4026068, at *6
(S.D.N.Y. Sept. 3, 2024) (observing that “the proper vehicle”
for challenging the “BOP's computations of [a] sentence,
including credits against that sentence, ... is a habeas petition
in the district of [the petitioner's] confinement, pursuant to 28
U.S.C. § 2241”).
“[T]he Second Circuit has made clear that a federal prisoner
asserting claims for habeas corpus relief under Section 2241
challenging the execution of his sentence must exhaust his
available administrative remedies before filing his petition,”
Rinaldi v. Warden FCI Otisville, No. 24-cv-02449 (LTS),
2024 WL 3797078, at *3 (S.D.N.Y. Aug. 13, 2024) (citing
Carmona, 243 F.3d at 634), which “requires compliance
with the BOP's four-step Administrative Remedy Program,”
Lallave v. Martinez, 609 F. Supp. 3d 164, 179 (E.D.N.Y.
2022) (citing 28 C.F.R. § 542.10(a)); see also United States
v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998) (“[C]redit
determinations are to be made in the first instance by
the [BOP] ....”). However, the “exhaustion requirement is
‘prudential, not statutory.’ ” Lallave, 609 F. Supp. 3d at
179 (quoting Snyder v. Angelini, No. 07-cv-03073 (NGG),
2008 WL 4773142, at *2 (E.D.N.Y. Oct. 27, 2008)). A court
may thus waive the exhaustion requirement “upon a showing
of cause and prejudice.” Rinaldi, 2024 WL 3797078, at *3
(citing Carmona, 243 F.3d at 630, 633-34). “Specifically,
exhaustion of administrative remedies may not be required
when ‘(1) available remedies provide no genuine opportunity
for adequate relief; (2) irreparable injury may occur without
immediate judicial relief; (3) administrative appeal would
be futile; and (4) in certain instances a plaintiff has raised
a substantial constitutional question.’ ” Ahmed v. Otisville,
No. 23-cv-00454 (PGG) (RWL), 2023 WL 9113089, at *6
(S.D.N.Y. Dec. 13, 2023) (quoting Beharry v. Ashcroft, 329
F.3d 51, 62 (2d Cir. 2003)).
DISCUSSION
*3 Petitioner argues that the BOP miscalculated his sentence
by failing to provide him credit for the time he spent
incarcerated between July 1, 2015, when he was arrested on
state charges, and June 22, 2017, when the federal district
court revoked his supervised release and imposed a thirty-
month federal sentence. 1 The Government's position is that
Petitioner failed to exhaust his administrative remedies and
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is not entitled to a waiver of the exhaustion requirement,
and that even if Petitioner were entitled to a waiver, the
BOP properly computed Petitioner's sentence. The Court
agrees that Petitioner has not satisfied the administrative-
exhaustion requirement and that there is no basis for excusing
that requirement. Alternatively, the Court finds, based on the
current record, that the BOP did not miscalculate Petitioner's
sentence.
While Petitioner contends he has exhausted his administrative
remedies, see Pet. at 1, the exhibits attached to Petition and
the Government's declaration do not support his assertion, see
id. at 10-22; Dkts. 11-1 to 11-6. Petitioner did not appeal the
Warden's denial of his formal request to the Regional Director
as required by the ARP, see 28 C.F.R. § 542.15(a), and
Petitioner does not suggest that he was denied the opportunity
to do so. See BOP Decl. ¶ 19; Dkt. 11-5 at 10; Pet. at 15
(denial letter from Warden explaining that petitioner could
appeal to regional director at provided address). Because the
administrative record shows that Petitioner did not appeal the
Warden's decision to the Regional Director, and Petitioner
does not argue otherwise, the Court finds that he has
failed to satisfy the administrative-exhaustion requirement.
See, e.g., Johansson v. Strada, No. 12-cv-05296 (ARR),
2012 WL 6093534, at *3 (E.D.N.Y. Dec. 7, 2012) (finding
that Petitioner failed to exhaust administrative remedies
where “the record indicates he did not appeal the Warden's
unfavorable decision to the Regional Director, nor did he
appeal to the BOP's general counsel”); Lane v. Zickefoose,
No. 08-cv-00567 (RNC), 2008 WL 5467824, at *2 (D. Conn.
Dec. 30, 2008) (similar). 2
Although Petitioner has not “proffered any excuse for his
failure” to exhaust his administrative remedies, the Court has
“construe[d] his submission liberally to determine whether
the circumstances excuse his failure.” Rosenthal v. Killian,
667 F. Supp. 2d 364, 366 (S.D.N.Y. 2009). Having reviewed
the Petition and supporting exhibits, in addition to the exhibits
attached to the Government's declaration, the Court finds that
none of the exhaustion exceptions are applicable here, and
none of the circumstances found in other cases to warrant
excusing exhaustion are present here. Cf. United States v.
Perez, 451 F. Supp. 3d 288, 292 (S.D.N.Y. 2020) (excusing
exhaustion requirement where administrative delay posed
serious risks to petitioner's health); Cardoza v. Pullen, No. 22-
cv-00591 (SVN), 2022 WL 3212408, at *6 (D. Conn. Aug.
9, 2022) (excusing exhaustion where “BOP staff's hindrance
of Petitioner's appeal efforts” supported “the conclusion that
any further appeals to the BOP would be ‘an effort made in
vain’ ” (quoting Napolitano v. Zenk, No. 04-cv-05109 (NGG),
2005 WL 1263784, at *2 (E.D.N.Y. May 27, 2005))); Goren
v. Apker, No. 05-cv-09006 (PKC), 2006 WL 1062904, at *5
(S.D.N.Y. Apr. 20, 2006) (excusing exhaustion requirement
where petitioner attempted to appeal decision of Regional
Director three times but never received decision from BOP
General Counsel due to “various procedural defects”); see
also Gadson v. Hou. House, No. 23-cv-08518 (LGS) (GWG),
2023 WL 8263036 at * 2 (S.D.N.Y. Nov. 30, 2023) (noting
that “mere predictions of failure” if petitioner were to pursue
administrative remedies is insufficient to excuse exhaustion
(quoting Goren, 2006 WL 1062904, at *4-5)). 3
*4 Even if Petitioner had exhausted his administrative
remedies or exhaustion were excused, the Court finds that the
BOP did not err in refusing to apply credit toward Petitioner's
federal sentence for his period of incarceration between July
1, 2015 (the date Petitioner was arrested on state charges)
and June 22, 2017 (the date Petitioner's thirty-month federal
sentence was imposed following his violation of supervised
release), because the record indicates that this time was
credited toward Petitioner's state sentence. See BOP Decl. ¶ 8;
Dkt. 11-4 at 3; Dkt. 11-1 at 2; Pet. at 14-15; see, e.g., Cintron
v. Warden, F.C.I. Otisville, 52 F. Supp. 3d 654, 656 (S.D.N.Y.
2014) (“[B]ecause the time between [petitioner's arrest on
state charges] and [his federal sentencing] was credited to the
petitioner's state sentence ..., the BOP was correct not to credit
it towards his federal sentence.”).
Pursuant to 18 U.S.C. § 3585(b), “[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) (emphasis
added). This provision “does not authorize giving a credit on
a federal sentence for any prison time that has already been
credited to another sentence, whether state or federal.” Sarro
v. Billingsley, No. 11-cv-09395 (MHD), 2013 WL 120817,
at *4 (S.D.N.Y. Jan. 10, 2013). “Indeed, the Supreme Court
and the Second Circuit have repeatedly read this statutory
language as precluding such double-counting.” Id. (collecting
cases); see United States v. Wilson, 503 U.S. 329, 337 (1992)
(“Congress made clear [in § 3585(b)] that a defendant could
not receive a double credit for his detention time.”); Labeille-
Soto, 163 F.3d at 99 (“Under [§ 3585(b)], a defendant has
no right to credit on his federal sentence for time that has
been credited against his prior state sentence.”); accord Lugo
v. Hudson, 785 F.3d 852, 856 (2d Cir. 2015) (per curiam);
Cintron, 52 F. Supp. 3d at 656; Berrios v. Pliler, No. 22-
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cv-05426 (JGK), 2023 WL 4364865, at *2 (S.D.N.Y. July 6,
2023); Ramos v. United States, No. 15-cv-01342 (RNC), 2017
WL 384024, at *2 (D. Conn. Jan. 26, 2017).
Accordingly, the Court finds that Petitioner has failed to
exhaust his available administrative remedies, that waiver is
not warranted, and that, in any event, Petitioner's underlying
claim is deficient on the merits.
CONCLUSION
For the foregoing reasons, the Petition is DENIED. The Clerk
of Court is respectfully directed to close the case.
All Citations
Slip Copy, 2025 WL 2781320
Footnotes
1 Where any dates set forth in the Petition conflict with those set forth in the documents attached to the
Government's supporting declaration, the Court adopts the latter.
2 To the extent that the Petition could be construed as claiming that the BOP improperly calculated Petitioner's
good-time credit (“GTC”), the Court's analysis of the administrative-exhaustion requirement would remain the
same. See also Reyes v. United States, No. 22-cv-06064 (NSR), 2022 WL 4240821, at *2 (S.D.N.Y. Aug. 26,
2022) (“[T]here are no allegations in the petition suggesting that the Court should excuse Petitioner's failure
to exhaust his administrative remedies. The BOP is in the best position to assess whether there was an error
in calculating Petitioner's entitlement to GTC under the [First Step Act], and should be given an opportunity
to correct any such error.”).
3 While Petitioner makes passing reference to purported violations of his Fifth and Sixth Amendment rights,
the Court does not find that the allegations set forth in the Petition raise a “substantial constitutional question”
that would warrant waiver of the exhaustion requirement, Beharry, 329 F.3d at 62, let alone an “unavoidable”
constitutional issue, Guzman v. Joyce, ––– F. Supp. 3d ––––, 2025 WL 1696891, at *3 (S.D.N.Y. June
17, 2025) (“ ‘[T]he risk of prolonged detention’ — as opposed to actual prolonged detention — ‘does not
constitute an irreparable injury that excuses the prudential exhaustion requirement.’ Indeed, if the possibility of
‘continued detention were sufficient to excuse exhaustion, exhaustion would always be excused.’ ”) (citation
omitted) (quoting Roman v. Decker, No. 20-cv-03752 (JGK), 2020 WL 4273823, at *8 (S.D.N.Y. July 24,
2020)).
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Reynolds v. Warden of FCI Raybrook, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 8064012
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Thomas REYNOLDS, Petitioner,
v.
WARDEN OF FCI RAYBROOK, Respondent.
9:16-CV-1264 (TJM/TWD)
|
Signed 08/05/2019
Attorneys and Law Firms
OF COUNSEL: BERNARD V. KLEINMAN, ESQ., LAW
OFFICES OF BERNARD V. KLEINMAN, PLLC, Attorney
for Petitioner, 108 Village Square, Suite 313, Somers, New
York 10589-2305.
GRANT C. JAQUITH, United States Attorney Northern
District of New York, OF COUNSEL: WILLIAM F.
LARKIN, ESQ., Assistant United States Attorney, Attorney
for Respondent, 100 South Clinton Street, Syracuse, New
York 13261.
REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
*1 Currently before the Court for a Report-
Recommendation is Thomas Reynolds’ (“Reynolds”)
amended petition for a writ of habeas corpus, under 28 U.S.C.
§ 2241 (hereinafter “Section 2241”). (Dkt. No. 16.) Reynolds
claims that he is entitled to a thirty-three-month credit on
his forty-two-year federal prison sentence under 18 U.S.C.
§ 3585 (hereinafter “Section 3585”) and the United States
Sentencing Guidelines (“U.S.S.G.”) § 5G1.3(b) (hereinafter
“Section 5G1.3(b)”). As discussed below, the undersigned
recommends that the District Court deny Reynolds’ amended
petition.
I. BACKGROUND
On January 7, 2004, the Honorable Edward R. Korman,
U.S. District Judge in the Eastern District of New York,
re-sentenced Reynolds who had pled guilty to racketeering
conspiracy (18 U.S.C. § 1962) and bank larceny (18 U.S.C.
§ 2113) in United States v. Reynolds, Nos. 99-520, 00-824
(E.D.N.Y.). 1 (Dkt. Nos. 16-12; 24-2 at 20.) Reynolds was
sentenced pursuant to a plea agreement under Fed. R. Crim.
P. 11(c), that contemplated a sentence range between thirty-
six and forty-two years. (Dkt. No. 24-2 at 4); see also United
States v. Reynolds, No. 99-CR-520 (E.D.N.Y.), (Dkt. No.
692.) Ultimately, Reynolds received a forty-two-year prison
sentence.
On October 7, 2016, Reynolds’ prior counsel, Bernard V.
Klienman, requested that the Court extend his Criminal
Justice Act appointment to address a potential basis for a
habeas corpus petition and to grant him permission to visit
Reynolds. (Dkt. No. 1-1 at 2.) According to Mr. Klienman,
Judge Korman and the United States Probation Office failed
to address whether Reynolds merited credit under Section
5G1.3(b) and Section 3585(b) for nine months—between
June 1999 and February 2000—he spent in federal custody
while serving a state sentence. (Dkt. No. 1-1 at 1-2.) Judge
Korman treated the October 7, 2016, letter as a petition for
a writ of habeas corpus under Section 2241, and ordered the
case transferred to this court because Reynolds is incarcerated
in the Northern District of New York at F.C.I. Ray Brook in
Ray Brook, New York. (Dkt. No. 2.)
Thereafter, on November 28, 2016, Reynolds filed an
amended petition for a writ of habeas corpus under Section
2241. (Dkt. No. 16.) In his amended petition, Reynolds
claims that he is entitled to a thirty-three-month credit
on his federal prison sentence under Section 3585(b) and
Section 5G1.3(b) because he was incarcerated on a state
charge that was related to his ultimate federal sentence.
(Id.) Respondent filed a response challenging whether: (1)
this Court is the proper venue to hear Reynolds’ petition,
(2) Reynolds exhausted his administrative remedies; and (3)
Section 5G1.3(b) can provide relief where Reynolds was
sentenced under a Fed. R. Crim. P. 11(c) plea agreement. (Dkt.
No. 24.) Reynolds replied (Dkt. No. 28) and the parties each
submitted supplementary letters describing their positions
(Dkt. Nos. 29, 31, 33).
II. PROCEDURAL ISSUES
*2 As stated above, Respondent raised two procedural
issues that must be addressed before considering the
amended petition's merits. The first is whether Reynolds’
amended petition is, in substance, a motion under 28
U.S.C. § 2255 (hereinafter “Section 2255”). If so, Reynolds’
amended petition belongs in “the court [that] imposed the
sentence,” 28 U.S.C. § 2255(a), i.e., with Judge Korman
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in the Eastern District of New York. The second issue is
whether—regardless of its form—the Court should dismiss
Reynolds’ amended petition because he failed to exhaust his
administrative remedies.
A. The Nature of Reynolds’ Petition
A challenge to the imposition of a sentence is properly
brought as a petition pursuant to Section 2255, while a
challenge to the execution of a sentence is properly brought as
a habeas corpus petition pursuant to Section 2241. Levine v.
Apker, 455 F.3d 71, 77-78 (2d Cir. 2006); Poindexter v. Nash,
333 F.3d 372, 377-78 (2d Cir. 2003). Given that each legal
vehicle prescribes a different remedy, each statute dictates a
specific venue to commence each challenge. To wit, a petition
pursuant to Section 2255 must be filed in the district court
“which imposed the sentence” being challenged, 28 U.S.C. §
2255(a), and a petition pursuant to Section 2241 must be filed
in the district court embracing the location where the prisoner
is currently in custody, 28 U.S.C. § 2241(d).
Here, a fair reading of the amended petition reveals it is
properly in this Court as a petition for habeas corpus relief
under Section 2241. Though Respondent attempts to classify
the amended petition as seeking relief pursuant to Section
5G1.3(b) in the form of a downward departure in Reynolds’
sentence, that is not the basis for which Reynolds seeks
relief. (Dkt. No. 24 at 4-6.) Rather, Reynolds discusses
Section 5G1.3(b) by analogy and not to literally seek that
this Court re-sentence him. (Dkt. No. 28 at 6 (stating that
Section 5G1.3(b) is the “ ‘functional equivalent’ of Section
3585(b)”) (quoting Lopez v. Terrell, 634 F.3d 136, 178 (2d
Cir. 2011)).) Functionally, Reynolds seeks an Order from this
Court instructing the Bureau of Prisons (“BOP”) to credit
time he served in state custody against his federal sentence
pursuant to Section 3585(b). 2 (Id. at 6-7.)
As such, Reynolds’ petition challenges the execution of his
sentence, i.e., the BOP's calculation of the credit to be given
for other periods of detention, not its imposition. See Simmons
v. Fed., Prison Employees, of the Fed. Bureau of Prisons, 639
F. Supp. 2d 402, 405 (S.D.N.Y. 2009) (stating that “[c]redit
time under 18 U.S.C. § 3585 ‘is granted by the Attorney
General through the Bureau of Prisons after a defendant is
sentenced, not by a district court at the time of sentencing’
”) (quoting United States v. Keller, 58 F.3d 884, 894 (2d Cir.
1995)); see also Chambers v. United States, 106 F.3d 472, 474
(2d Cir. 1997) (noting that “[a] challenge to the execution of
a sentence, ... is properly filed pursuant to Section 2241”);
United States v. Werber, 51 F.3d 342, 349 n.17 (2d Cir. 1995)
(stating that a challenge to the BOP's application of 18 U.S.C.
§ 3585 should be filed pursuant to Section 2241 petition).
Accordingly, the Court finds that Reynolds’ amended petition
was brought under Section 2241 and is properly venued in the
Northern District of New York.
B. Exhaustion of Remedies
*3 The Second Circuit has established an administrative
exhaustion requirement on habeas corpus petitions inmates
bring under Section 2241. See United States ex rel. Scranton
v. State of New York, 532 F.2d 292, 294 (2d Cir. 1976);
Washington v. United States, No. 05-cr-558, 2016 WL
11448326, at *1 (E.D.N.Y. Dec. 23, 2016) (petitioner
claiming sentence improperly calculated by the BOP must
exhaust administrative remedies under the Administrative
Remedy Program (“ARP”), 28 C.F.R. § 542.10-542.16,
before bringing a habeas petition under Section 2241).
Specifically, federal inmates must exhaust each of the
following steps in the ARP before obtaining relief in
federal court: (1) attempting to resolve the issue informally,
see 28 C.F.R. § 542.13; (2) submitting a formal written
Administrative Remedy Request to the warden of the facility
in which the inmate is confined, see id. § 542.14(3); (3)
appealing to the BOP Regional Director, see id. § 542.15;
and (4) appealing to the BOP Office of General Counsel,
see id. No administrative appeal is fully exhausted until the
BOP's Central Office reviews it. See Spring v. Shult, No.
9:08-CV-0531, 2009 WL 3232183, at *1 (N.D.N.Y. Oct. 1,
2009). The burden of demonstrating exhaustion rests with the
Section 2241 petitioner. Id.
The main dispute relative to exhaustion in this case involves
the timing for when Reynolds filed his amended petition.
As recounted above, this action was commenced by letter
dated October 7, 2016 (Dkt. No. 1), and Reynolds filed
his amended petition on November 28, 2016. (Dkt. No.
16.) Respondent accurately notes Reynolds had not yet
completely exhausted his administrative remedies prior to
filing his amended petition. (Dkt. No. 24 at 6-8.) However,
as Respondent also acknowledges, Reynolds did exhaust his
administrative remedies at the latest on April 24, 2017, when
the BOP's Central Office formally denied his appeal. (Dkt.
No. 33.) Thus, the precise issue is not whether Reynolds
exhausted his remedies, but rather whether Reynolds’ petition
—which was filed before the BOP issued its final decision—
should be dismissed for being filed early.
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In support of its position, Respondent points to several cases
where courts have stated that a party must exhaust remedies
before the commencement of the action. (Dkt. No. 24 at 7
(citing cases); Dkt. No. 29.) None of these cases, however,
consider whether the court must dismiss a petition where
petitioner exhausted his administrative remedies during the
pendency of the Court's review. As stated above, Reynolds
exhausted his remedies as of April 24, 2017, at the latest, and
the BOP denied his application for relief. (Dkt. No 33.) Thus,
the issues in Reynolds’ petition are not moot, are fully briefed,
and are now ripe for review.
In Uziel v. Hadden, 779 F.2d 4 (2d Cir. 1985) (per curiam), the
Second Circuit held that a district court should have allowed
the petitioner's pending administrative remedies to conclude
rather than dismissing the petition for failure to exhaust. Id.
at 5. In Uziel, the petitioner filed his petition on May 31,
1984, and the parole office re-opened the challenged decision
on July 26, 1984. See id. at 4-5. The district court dismissed
the petition because the re-opening of the challenged decision
created new administrative avenues to challenge the parole
office's subsequent decision. Id. at 5. The Second Circuit
reversed, holding that the district court “should rather have
held the petition in abeyance pending an exhaustion of
these new administrative remedies, at which time the court
presumably would address the merits of the petition or any
amended petition that might be filed.” Id. (citation omitted).
Here, through the passage of time, Reynolds’ administrative
remedies have been fully exhausted such that it is now
appropriate to consider the amended petition's merits. Forcing
Reynolds to re-file his petition would only cause unnecessary
delay and waste judicial resources. 3
*4 Accordingly, the Court finds that dismissing Reynolds’
petition on the ground that he failed to exhaust his
administrative remedies is not warranted.
III. REYNOLDS’ AMENDED PETITION
Turning to Reynolds’ amended petition, the principle issue is
whether the BOP appropriately applied Section 3585 when
it denied Reynolds’ request to credit time he spent in state
custody to his federal sentence. A straightforward application
of Section 3585(b) confirms that the BOP correctly denied
Reynolds’ application. Accordingly, for the reasons discussed
below, the Court recommends that the amended petition be
dismissed.
18 U.S.C. § 3585, titled, “Calculation of a term of
imprisonment,” provides in full:
(a) Commencement of sentence.—A sentence to a term
of imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official
detention facility at which the sentence is to be served.
(b) Credit for prior custody.—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.
Id.
Under Section 3585(b), therefore, the BOP will grant a
defendant “credit” against his or her federal sentence for time
served in custody prior to sentencing in district court so long
as that presentence custody “has not been credited against
another sentence.” 18 U.S.C. § 3585(b); see United States v.
Labeille–Soto, 163 F.3d 93, 99 (2d Cir. 1998) (“[A] defendant
has no right to credit on his federal sentence for time that has
been credited against his prior state sentence.”).
According to Reynolds, he deserves credit for the following
periods of time he spent in custody on his state sentence:
April 7, 1995 – February 1996 7 months
March 17, 1996 – August 7, 1997 15 months
December 1997 – January 4, 1999 3 months
June 1, 1999 – June 10, 1999 10 days
June 10, 1999 – February 11, 2000 8 months
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(Dkt. No. 16-1 at 18.) These thirty-three-months for which
Reynolds seeks credit were spent in custody because of an
arrest in 1994 related to a weapons charge and subsequent
parole violations. (Id. at 17.) According to Reynolds, the time
he spent in state custody on the 1994 weapons charge was for
conduct that was “relevant conduct,” as that term is defined
in Section 5G1.3(b). (Id.)
Section 5G1.3(b) applies where a “defendant faces
punishment for the same criminal conduct in two
prosecutions[,] ... [and] ensures that the defendant receives
‘credit’ for time already served to eliminate double
punishment.” United States v. Fermin, 252 F.3d 102, 109 (2d
Cir. 2001) (citing Witte v. United States, 515 U.S. 389, 404–
05 (1995)). Reynolds asserts Section 3585(b) and Section
5G1.3(b) are “functional equivalents” and that Section 3585
and Section 5G1.3(b) operate together so that a person does
not face separate terms of imprisonment for the same conduct.
(Dkt. No. 28 at 5 (citation omitted).)
As Reynolds points out, Section 5G1.3(b) and Section 3585
often complement one another. See United States v. Gonzalez,
192 F.3d 350, 354 (2d Cir. 1999) (holding that because the
defendant's presentence custody was credited to his state
sentence, no Section 3585(b) credit was available; thus,
U.S.S.G. § 5G1.3(b) applied). For example, in United States
v. Knight, 562 F.3d 1314 (11th Cir. 2009), the Eleventh Circuit
held that the sentencing court erred in failing to apply a
downward departure for time the defendant spent in custody
under Section 5G1.3(b) because the BOP would not give
credit for that same time under Section 3585. Id. at 1329.
Reynolds asserts that his case is the mirror image of Knight,
i.e., because he should be entitled to sentence credit for the
thirty-three-months he was in custody on a related state charge
under Section 5G1.3(b) but was not granted such credit, the
Court should order the BOP to credit him for the same time
under Section 3585(b). (Dkt. No. 16-1 at 22 (arguing that
“[w]hile § 3585(b) grants the Bureau of Prisons (“BOP”)
the power to award credit for time spent in custody prior to
the imposition of a sentence, Section 5G1.3(b), however, is
applicable where the BOP would not otherwise award this
credit. In these situations, it is necessary for the reviewing
court to apply the credit itself in order to prevent the defendant
from serving a sentence that is longer than is appropriate
under the Guidelines.”).)
*5 Reynolds has not cited any authority that has applied
Section 3585(b) in the novel manner he proposes. Rather, the
Court finds the interplay between Section 5G1.3(b) Section
3585 is a red herring and legally unrelated to whether the BOP
properly applied Section 3585(b) in his case.
To that end, Reynolds superimposes a false equivalence
between Section 5G1.3(b) and Section 3585. Section 3585, by
its terms, is merely an administrative statute that ensures pre-
sentence custody does not go uncounted towards a person's
ultimate sentence. As stated above, Section 3585(a) provides
that: “[a] sentence to a term of imprisonment commences
on the date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence service
of sentence at, the official detention facility at which the
sentence is to be served.” 18 U.S.C. § 3585(a). Thus, a
defendant's sentence does not commence until after it has been
imposed and the defendant is traveling to or arrives at the
designated detention facility. Accordingly, if a defendant had
spent time in custody prior to a court imposing his or her
sentence, that time would not technically count towards that
sentence pursuant to Subsection (a). See id. Subsection (b),
however, ensures time spent in pre-sentence custody (even
if on an unrelated arrest) is credited against a defendant's
sentence so long as it has not been credited against another
sentence. Id. at 3585(b). Together, Section 3585’s purpose is
to ensure a defendant earns credit for each day he or she is
in custody against at least one sentence. Section 3585 is not
equivalent to Section 5G1.3(b) which seeks to prevent double
punishment for the same or related criminal act through an
adjustment of the defendant's ultimate sentence.
Accordingly, the Court finds that it is irrelevant whether
Reynolds’ time in state custody might satisfy Section
5G1.3(b)’s requirements because this petition seeks the
Court's review of the BOP's decision under Section 3585.
When properly confined to the salient issue, Reynolds’
petition lacks merit. To wit, Reynolds seeks credit for
thirty-three-months he spent in state custody while he was
admittedly serving his state sentence and receiving credit
against his state sentence. Under Section 3585(b), a defendant
may only receive credit for time in custody “that has not
been credited against another sentence.” 18 U.S.C. § 3585(b).
Accordingly, the Court finds Reynolds is not entitled to credit
against a federal sentence for time he spent incarcerated that
counted towards the term of his state sentence. See United
States v. Wilson, 503 U.S. 329, 337 (1992); United States
v. Labeille–Soto, 163 F.3d 93, 99 (2d Cir. 1998); Werber v.
United States, 149 F.3d 172, 173 (2d Cir. 1998). 4
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Reynolds v. Warden of FCI Raybrook, Not Reported in Fed. Supp. (2019)
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IV. CONCLUSION
*6 The Court finds that the BOP correctly applied Section
3585(b) in denying Reynolds’ request for credit. (Dkt. No.
33.)
ACCORDINGLY, it is hereby
RECOMMENDED that Reynolds’ amended petition for
a writ of habeas corpus (Dkt. No. 16) be DENIED and
DISMISSED in its entirety.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections to
the foregoing report. Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health
and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72.
All Citations
Not Reported in Fed. Supp., 2019 WL 8064012
Footnotes
1 Reynolds filed a petition under 28 U.S.C. § 2255 to vacate his original guilty plea and sentence. (Dkt. No.
16-10.) Judge Korman granted the petition on July 25, 2003, and vacated Reynolds’ original guilty plea and
sentence. (Id.; see also Reynolds v. United States of America, No. 1:02-cv-01622-ERK (E.D.N.Y.), Dkt. Nos.
1, 15.)
2 To the extent that Reynolds is arguing for relief under Section 5G1.3(b), this issue is more appropriately
resolved by the sentencing court pursuant to a motion under Section 2255 rather than this court pursuant to
a petition under Section 2241. See Dixon v. Terrell, No. 10-CV-5262, 2011 WL 4543712, at *11 (E.D.N.Y.
Sept. 29, 2011); Jackson v. Killian, No. 08–CV–4386, 2009 WL 1835004, at *3 (S.D.N.Y. June 23, 2004)
(“Challenging the sentencing court's section 5G1.3 calculation is ‘more appropriately brought as an issue for
the sentencing court pursuant to a motion under section 2255, rather than the district court in a section 2241
habeas petition where petitioner is held in custody.’ ” (quoting Saunders v. Unnamed Warden, No. 07–CV–
4293, 2008 WL 2775763, at *7 (D.N.J. July 14, 2008) (denying habeas petition pursuant to Section 2241
where petitioner argued that he was entitled to a downward departure or sentence reduction under Section
5G1.3))).
3 Moreover, this action was originally commenced sua sponte through the Court's conversion of a letter request
filed in the Eastern District of New York under the original criminal case (99-CR-520 at Dkt. No. 757) to a
petition pursuant to 28 U.S.C. § 2241. (Dkt. No. 2.) After that conversion, this Court set a deadline requiring
Reynolds to file an amended petition before he could have exhausted his remedies. (Dkt. Nos. 5, 13.) Thus,
Reynolds’ counsel was left with the difficult decision of complying with the Court's order or seeking a delay
in the proceedings until the BOP issued a final decision.
4 It is of no moment that Reynolds was transferred from state to federal custody by writ of habeas corpus ad
prosequendum while he was still serving his state sentences, because he was still legally in state custody
pursuant to those sentences at that time. See, e.g., United States v. Smith, 812 F. Supp. 368, 371 (E.D.N.Y.
1993) (“A federal writ of habeas corpus ad prosequendum merely loans the prisoner to federal authorities.”);
id. at 371 (“A federal sentence does not begin to run ... when the defendant is produced for prosecution in
federal court pursuant to a federal writ of habeas corpus ad prosequendum. Rather, the state retains primary
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jurisdiction over the prisoner, and federal custody commences only when the state authorities relinquish the
prisoner on satisfaction of the state obligations.”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01161-BKS-ML Document 24 Filed 02/04/26 Page 99 of 144

Rosario v. Quay, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 337977
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Charlie ROSARIO, Petitioner,
v.
Herman QUAY, Respondent.
CASE NO. 3:15cv523(RNC)
|
Signed 01/21/2017
|
Filed 01/23/2017
Attorneys and Law Firms
Charlie Rosario, Danbury, CT, pro se.
Alan M. Soloway, U.S. Attorney's Office, New Haven, CT,
for Respondent.
RULING AND ORDER
Robert N. Chatigny, United States District Judge
*1 Charlie Rosario, an inmate at FCI Danbury, brings this
action pro se pursuant to 28 U.S.C. § 2241 claiming that
he was denied due process in connection with a prison
disciplinary proceeding that resulted in his confinement in
disciplinary segregation and loss of good conduct time.
Respondent argues that the petition should be denied because
the record establishes that petitioner has failed to exhaust
administrative remedies and was afforded all the process he
was due. I agree and therefore dismiss the petition.
I. Background
The record shows the following. On November 15, 2014,
petitioner was charged with the prohibited act of Threatening
Another With Bodily Harm, which is classified as a High
Severity offense. See 28 C.F.R. Part 541, Subpart A, “Table
1—Prohibited Acts and Available Sanctions.” The charge
was based on an incident at FCI Danbury earlier that day
involving a correctional officer and petitioner. According
to the officer's written report of the incident, the officer
spoke with petitioner while conducting rounds in petitioner's
housing unit. Petitioner told the officer he was working too
hard and needed to relax because some inmates did not like
to be “mess[ed] with.” Petitioner stated that the officer could
be jumped. When the officer told petitioner that he was just
doing his job, petitioner again stated that the officer could be
jumped.
On November 16, the officer's report of the incident was
issued to petitioner. Lieutenant North interviewed petitioner
concerning the report. Petitioner admitted making the
statements attributed to him in the report but claimed “We
were just joking around.” Lieutenant North concluded that the
incident report was accurate and referred the matter to the Unit
Disciplinary Committee.
On November 24, Correctional Counselor Rivera conducted a
Unit Disciplinary Committee Review, forwarded the matter to
a Disciplinary Hearing Officer (“DHO”), provided petitioner
with notice of a disciplinary hearing, and advised him of his
rights.
On November 25, a disciplinary hearing was held. Petitioner
acknowledged the incident report was correct but claimed he
did not intend to threaten the officer. The DHO concluded
that petitioner had threatened the officer with bodily harm
and imposed the following sanctions: 27 days loss of
good conduct time, 20 days confinement in disciplinary
segregation, 90 days loss of email privileges, and 90 days loss
of commissary privileges.
In this action, petitioner challenges the disciplinary finding on
the ground that he was denied due process. He also contends
that he was unable to appeal the disciplinary finding because
documents were not delivered to him in a timely manner.
II. Discussion
A petition pursuant to 28 U.S.C. § 2241 may be used
by a federal prisoner to expunge disciplinary sanctions,
including loss of good time credit. Carmona v. United States
Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Before
commencing an action under § 2241, a prisoner must exhaust
administrative remedies. Id. at 634. The purposes of the
exhaustion requirement include “protecting the authority
of administrative agencies, limiting interference in agency
affairs, developing the factual record to make judicial review
more efficient, and resolving issues to render judicial review
unnecessary.” Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir.
2003). Respondent has shown that petitioner failed to comply
with applicable regulations of the Bureau of Prisons and thus
failed to exhaust his administrative remedies.
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Rosario v. Quay, Not Reported in Fed. Supp. (2017)
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*2 BOP regulations provide that disciplinary findings may
be appealed to the Regional Director within 20 calendar days
of the date of decision. 28 C.F.R. §§ 542.14(d)(2), 542.15(a).
A final appeal may be submitted to the General Counsel's
Office within 30 calendar days of denial of relief by the
Regional Director. Id. The filing date of an appeal is the date
it is received. 28 C.F.R. § 542.18; see also Marra v. Baird, No.
3:14-CV-1011 (AVC), slip op. 9 (D. Conn. Apr. 9, 2015). The
time limits at any level of review may be extended for a valid
reason. 28 C.F.R. §§ 542.14(b), 542.15(a).
The administrative record establishes that petitioner did not
comply with the regulations. He received a copy of the DHO
report on November 25, 2014. In order to satisfy the 20-
day period for a timely appeal, he had to submit documents
to the Regional Director by December 15. He missed the
deadline by approximately 9 days and his appeal was rejected
as untimely. He was promptly notified that he could resubmit
the appeal within 10 days supported by staff verification that
the untimely filing was not his fault. Petitioner resubmitted
the appeal beyond the 10-day period and it too was rejected
as untimely. At that time, he was given another opportunity to
resubmit the appeal supported by staff verification regarding
the delay in filing but he took no further action.
Failure to exhaust administrative remedies results in a
procedural default, which bars judicial review of the defaulted
claim unless the prisoner shows that the failure to exhaust
should be excused. See Carmona, 243 F.3d at 634. Non-
exhaustion may be excused if the prisoner shows cause
and prejudice, such as “legitimate circumstances beyond the
prisoner's control [that] preclude[d] him from fully pursuing
his administrative remedies.” Id.
Based on the administrative record, it is apparent that
petitioner filed his appeal after the 20-day deadline expired,
failed to resubmit the appeal in a timely manner despite being
given notice and an opportunity to do so, and ultimately
abandoned the appeal. This constitutes a failure to exhaust.
See Champley v. Baird, No. 3:11CV635 VLB, 2012 WL
2872833, at *3 (D. Conn. July 11, 2012). Accordingly,
petitioner has the burden of showing that circumstances
beyond his control prevented him from fully pursuing his
remedies. Carmona, 243 F.3d at 634. In the absence of a
showing of good cause for non-exhaustion, the petition must
be dismissed. See Atkinson v. Willingham, No. 305-CV-673
RNC, 2007 WL 685168, at *4 (D. Conn. Mar. 3, 2007).
Petitioner has not made the required showing. He alleges
that prison officials failed to provide him with documents
in a timely manner. But the record establishes that he got a
copy of the incident report on November 16, the day after
the incident occurred, see Pet. (ECF No. 1) at 32, 65, and a
copy of the DHO report on November 25, the same day as
the hearing. See Pet. (ECF No. 1) at 34. After receiving these
documents in a timely manner, petitioner apparently took no
action until December 15, the appeal deadline. On that date,
he requested a complete copy of the incident report, one that
included a completed section “Part II—Committee Action.”
See Pet. (ECF No. 1) at 63-65. He was given a copy of the
completed report within 24 hours. Petitioner has not shown
that he needed the “Committee Action” section in order to
prepare and file a timely appeal and, even assuming he did,
he provides no explanation for his failure to seek a complete
copy of the report until the day the appeal was due.
*3 In addition to alleging that documents were not given
to him in a timely manner, petitioner makes generalized
allegations regarding prison officials' interference with the
administrative process. He alleges that he was “hampered”
from timely appealing the disciplinary sanctions; that
prison staff “continuously” discourage inmates from using
the Administrative Remedy Process by “with[h]olding the
remedies until requested deadlines have lapse[d]” and then
refusing to sign documentation as to why service was
untimely; that inmates become “frustrated” and “abandon[ ]”
their claims; and that prison staff have “continuously erected
illegitimate barrie[r]s retarding the [administrative] process.”
Pet. (ECF No. 1) at 3-5.
Petitioner's allegations are too general and conclusory to
sustain his burden of showing that he was prevented
from fully pursuing his administrative remedies due to
circumstances beyond his control. To satisfy his burden,
petitioner has to allege facts showing that prison staff
prevented him from pursuing an appeal. See Whalen v. Fed.
Bureau of Prisons, No. 09-CV-1572 ENV, 2011 WL 2669112,
at *3 (E.D.N.Y. June 30, 2011) (stating that “interference
by officials” can excuse non-exhaustion only if it “makes
compliance with procedural rules impracticable”)(quotations
and citations omitted); Dunbar v. Sabol, 649 F. Supp. 2d 1, 4
(D. Mass. 2009) (stating that “merely conclusory statements”
are not sufficient to excuse failure to exhaust administrative
remedies); cf. Hinebaugh v. Wiley, 137 F. Supp. 2d 69, 75
(N.D.N.Y. 2001) (finding that the failure to exhaust should
be excused when petitioner submits evidence that his legal
files were confiscated and not returned for fourteen months).
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Rosario v. Quay, Not Reported in Fed. Supp. (2017)
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Because petitioner has not made this showing, his failure to
exhaust cannot be excused.
In addition to relying on petitioner's failure to exhaust,
respondent argues that petitioner's due process claim is
unavailing on the merits. To satisfy due process requirements,
petitioner was entitled to advance written notice of the charge,
an opportunity to call witnesses and present documentary
evidence, and a written statement by the DHO of the evidence
relied on and the reasons for the disciplinary action. See
Superintendent Mass. Corr. Inst. v. Hill, 472 U.S. 445, 453
(1985). In addition, a DHO's decision must be supported by
“some evidence.” Id. at 455-56. This standard is satisfied if
the record evidence could support the decision. Id.
The record establishes that petitioner did receive the process
required by the Constitution. He was given advance written
notice of the charge, declined an opportunity to call witnesses
and present other evidence, and received a copy of the DHO's
decision the day of the hearing. The DHO's decision states the
evidence relied on and provides reasons for the disciplinary
action. The decision is adequately supported by the officer's
report and statements.
Petitioner's due process complaint may be based on the timing
of the review conducted by the Unit Discipline Committee.
BOP regulations provide that a UDC will ordinarily review
an incident report within 5 work days. 28 C.F.R. § 541.7(c).
In this case, there was a delay of 8 days. But the Warden
approved an extension of time for the review as permitted by
BOP policy. See Resp., Ex. B (ECF No. 5-2), at 7; Resp.,
Ex. C (ECF No. 5-2), at 1. In any event, a violation of
the regulation concerning the time for UDC does not itself
constitute a violation of due process. See Agramonte v. Bragg,
2013 WL 5530518, *3-4 (D.S.C. Oct. 7, 2013); Anderrson
v. Bledsoe, 2012 WL 1414848, *6 (M.D. Pa. Apr. 24, 2012).
And there is no indication petitioner was prejudiced by the
brief delay.
III. Conclusion
Accordingly, the petition is hereby denied. Because I do not
think reasonable jurists would find it debatable whether the
petitioner failed to exhaust or whether the petition states a
valid due process claim, a certificate of appealability will not
issue. The Clerk may enter judgment and close the case.
*4 So ordered this 21 st day of January 2017.
All Citations
Not Reported in Fed. Supp., 2017 WL 337977
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01161-BKS-ML Document 24 Filed 02/04/26 Page 102 of 144

Rosario-Santiago v. Pliler, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 2991015
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Luis J. ROSARIO-SANTIAGO, Plaintiff,
v.
Mr. W. S. PLILER, Warden, Defendant.
21-CV-3202 (JPC) (RWL)
|
Signed July 7, 2022
Attorneys and Law Firms
Luis J. Rosario-Santiago, Otisville, NY, Pro Se.
Joshua Evan Kahane, Brandon Herbert Cowart, U.S. Attorney
Office SDNY, New York, NY, for Defendant.
REPORT AND RECOMMENDATION
TO HON. JOHN P. CRONAN:
PETITION FOR HABEAS CORPUS
ROBERT W. LEHRBURGER, United States Magistrate
Judge.
*1 Petitioner Luis Rosario-Santiago (“Rosario-Santiago” or
“Petitioner”), proceeding pro se, brings this petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241 against W.S.
Pliler, Warden, FCI-Otisville (“Warden” or “Respondent”),
challenging the revocation of 27-days Good Conduct Time
as penalty for a disciplinary offense related to his violation
of telephone monitoring procedures. Petitioner contends that
he exhausted all administrative remedies and that his petition
should be granted because the Disciplinary Hearing Officer
(“DHO”) violated his due process rights, and because he did
not commit the prohibited act with which he was charged.
Petitioner also requests an evidentiary hearing to have the
opportunity to present evidence that would prove his due
process rights were violated. For the reasons set forth below,
I recommend that the petition be DENIED.
Background
A. Petitioner's Conviction
On June 20, 2012, a grand jury indicted Petitioner with
conspiracy to possess and intent to distribute a controlled
substance in the District of Puerto Rico. Dkt. 196, United
States v. Ramos-Pineiro et al., No. 12-CR-200 (D.P.R. June
20, 2012). On February 5, 2013, Petitioner pled guilty to
conspiracy to commit racketeering in violation of 18 U.S.C.
§ 1962(d). Dkt. 73, United States v. Ramos-Pineiro et al., No.
12-CR-200 (D.P.R. Feb. 5, 2013). On May 7, 2013, Petitioner
was sentenced to a 348-month term of imprisonment. Dkt.
994, United States v. Ramos-Pineiro et al., No. 12-CR-200
(D.P.R. May 13, 2013).
B. The Prohibited Conduct Violation
On October 5, 2020, Petitioner was observed via camera
surveillance and telephone monitoring using another inmate's
PIN number to place a telephone call that lasted eleven
minutes. (Peakes Decl., Ex. A at 1 (“Incident Report”). 1 )
Several hours later, Petitioner was issued the Incident Report
charging him with violating Prohibited Act 297 for using a
telephone in a way that circumvents telephone monitoring
procedure. 2 (See Incident Report at 1.) As an explanation for
his conduct, Petitioner stated that “I used the phone because
[I] needed money and needed to call.” (Incident Report at
1.) Petitioner was advised of his rights, and the charge was
referred to a DHO for a hearing. (Incident Report at 1-2.)
C. The Disciplinary Hearing
On October 6, 2020, Petitioner declined to have a staff
representative or witnesses at his disciplinary hearing.
(Peakes Decl., Ex. B (“Notice of Disciplinary Hearing Before
the DHO”) at 2.) On October 14, 2020, Petitioner received
advanced written notice of the charge in the form of a copy of
the Incident Report. (See Incident Report at 4, Peakes Decl.,
Ex. C at 1 (“DHO Report”).) On October 20, 2020, Petitioner
was further advised of his rights before the DHO and again
declined to have a staff representative or witnesses for the
upcoming disciplinary hearing. (DHO Report at 4-5.)
*2 On November 24, 2020, the DHO conducted a hearing at
which Petitioner stated that he understood his rights and had
no documentary evidence to present. (Id. at 1-2.) Petitioner
admitted, through a staff translator, that the DHO incident
report was true and stated: “I admit it. I used [another inmate's
telephone PIN] for an emergency.” (Id. at 2.) Based upon
the Incident Report and Petitioner's admission that the report
was true, the DHO found sufficient evidence that Petitioner
committed telephone abuse and violated Prohibited Act 297.
(See DHO Report.)
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Having found Petitioner to have violated Prohibited Act 297,
the DHO disallowed Petitioner 27 days of Good Conduct
Time (“GCT”), 30 days suspended pending 180 days clear
conduct, and 90 days of phone privileges lost. (Id. at 2.) The
DHO Report was signed and dated by the DHO on November
25, 2020, and was delivered to Petitioner on December 2,
2020. (Id. at 3.)
D. The Attempted Appeal
On December 22, 2020, Petitioner appealed the DHO report,
using a Bureau Of Prisons (“BOP”) form, known as a BP-10
Form, to request an administrative remedy. (Peakes Decl. ¶
14.) According to Respondent, on January 27, 2021, the BOP
rejected Petitioner's administrative appeal on the basis that
his BP-10 submission was illegible. (Id. ¶ 15.) Rather than
resubmitting a legible request as required by the regulations,
Petitioner filed a BP-11 Form on March 16, 2021, appealing
the decision to the BOP General Counsel's office. (Id. ¶
16); see 28 C.F.R. § 542.17(b) (“If the defect on which
the rejection is based is correctable, the notice shall inform
the inmate of a reasonable time extension within which to
correct the defect and resubmit the Request or Appeal.”)
The General Counsel's office concurred with the Regional
Director's rejection of Petitioner's appeal. (Id. ¶ 17.) Petitioner
never resubmitted a legible BP-10 submission. (Id. ¶ 18.)
Procedural History
On April 9, 2021, Petitioner filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2241. (Dkt. 1
(“Petition”).) Petitioner claimed that the 27 days of GCT
were improperly withheld, and that he was “[d]enied
Constitutionally provided rights as well as those under
policy, regulation, and statute.” (Id.) On August 31, 2021,
Respondent filed a memorandum opposing the petition. (Dkt.
8 (“Opp. Mem.”).) Petitioner replied on September 27, 2021.
(Dkt. 11 (“Reply”).) Respondent filed a supplemental brief on
March 4, 2022 (Dkt. 15 (“Supp. Br.”).), and Petitioner replied
on April 21, 2022. (Dkt. 23 (“Supp. Reply”).)
Legal Standards
A. 28 U.S.C. § 2241 Writ of Habeas Corpus
“The ordinary vehicle for a federal prisoner to seek habeas
relief is 28 U.S.C. § 2255, under which such a prisoner may
have his sentence vacated or set aside.” Carmona v. U.S.
Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). But when
a federal prisoner challenges a disciplinary sanction rather
than the legality of his sentence, he may do so by petitioning
for a writ of habeas corpus under 28 U.S.C. § 2241. Carmona,
243 F.3d at 632; see also Chambers v. United States, 106
F.3d 472, 474-75 (2d Cir. 1997); Kingsley v. Bureau of
Prisons, 937 F.2d 26, 30 n. 5 (2d Cir.1991). An inmate
thus appropriately files a § 2241 petition when challenging
the constitutionality of disciplinary proceedings or sanctions,
including the loss of good time credits. See Carmona, 243
F.3d. at 632 (appellant's petition to expunge the Bureau's
disciplinary sanctions from his record, including the loss of
good time credits ... is properly brought via an application for
a writ under § 2241); Grossman v. Federal Bureau of Prisons,
19-CV-5625, 2019 WL 6114881, at *4 (S.D.N.Y. Nov. 18,
2019) (“the Court concludes that Petitioner's constitutional
rights were not violated by his disciplinary hearing or by the
revocation of good time conduct.”); Agosto v. Hufford, 13-
CV-4082, 2014 WL 2217908, at *4-5 (S.D.N.Y. May 8, 2014)
(holding that Petitioner had not made a substantial showing
that his constitutional right to due process was denied at his
disciplinary hearing).
B. Exhaustion Requirement For Habeas Relief
*3 Before filing a petition for habeas relief, federal prisoners
must exhaust all administrative remedies or justify their
failure to do so. Carmona, 243 F.3d at 634. Appeals thus
must first proceed through the federal agency review process
absent a showing of cause for failing to do so and prejudice.
Id.; see generally Edwards v. Carpenter, 529 U.S. 446,
451, 120 S. Ct. 1587, 1591 (2000); Davis v. United States,
411 U.S. 233, 93 S. Ct. 1577 (1973). That requirement
applies no less to § 2241 petitions than to other habeas
statutes. Carmona, 243 F.3d at 633. As explained by the
Third Circuit Court of Appeals, “[b]y applying the cause and
prejudice rule to habeas review of administrative proceedings,
we insure that prisoners do not circumvent the appropriate
agencies and needlessly swamp the courts with petitions
for relief.” Moscato v. Federal Bureau of Prisons, 98 F.3d
757, 761 (3d Cir. 1996); accord Carmona, 243 F.3d at
630 (recognizing four principles underlying the exhaustion
requirement: comity, finality, accuracy, and trial integrity).
C. Due Process Protections Afforded To Federal Inmates
The Fourteenth Amendment of the Constitution entitles
federal prisoners to certain limited due process rights
“when disciplinary actions subject them to further liberty
deprivations such as loss of good-time credit or special
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confinement that imposes an atypical hardship.” Sira v.
Morton, 380 F.3d 57, 69 (2d Cir. 2004). Due process requires
that a prison inmate receive “advanced written notice of the
charges against him; a hearing affording him a reasonable
opportunity to call witnesses and present documentary
evidence; a fair and impartial hearing officer; and a written
statement of the disposition, including the evidence relied
upon and the reasons for the disciplinary actions taken.” Id.
For the prison disciplinary board to comply with due process,
its conclusion must be supported by “some evidence.”
See Superintendent, Massachusetts Correctional Institution,
Walpole v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 2774
(1985) (“The requirements of due process are satisfied if some
evidence supports the decision by the prison disciplinary
board to revoke good time credits”). If the evidence is reliable,
the disciplinary board's conclusion is deemed supported. See
Sira, 380 F.3d at 69; Luna v. Pico, 356 F.3d 481, 488 (2d Cir.
2004) (emphasizing the importance of assessing the reliability
of available evidence); Taylor v. Rodriguez, 238 F.3d 188, 194
(2d Cir. 2001) (finding that without determining the reliability
of evidence, the court is left to speculate whether a decision
is supported by “some evidence”); Gaston v. Coughlin, 249
F.3d 156, 163 (2d Cir. 2001) (“this Court has ruled that
the ‘some evidence’ standard may be met even where the
only evidence was supplied by a [non-testifying] confidential
informant” who provided incriminating information and
there was evidence presented to the hearing officer that the
information was reliable).
Discussion
There is a factual dispute as to whether Plaintiff properly
exhausted his administrative remedies that cannot be resolved
on the present record. Nonetheless, Plaintiff's claim fails on
the merits as he was not deprived of due process. The Petition
therefore should be dismissed.
A. The Court Cannot Determine On The Present Record
Whether Plaintiff Failed To Exhaust Administrative
Remedies
Respondent argues that Petitioner failed to exhaust his
administrative remedies under the Prison Litigation Reform
Act (“PLRA”) because, after submitting an illegible BP-10
Form, he failed to resubmit a legible BP-10 Form before
filing a BP-11 Appeal. Petitioner argues that he did exhaust all
administrative remedies because he did not receive a rejection
of his BP-10 Form and waited the required amount of time
before assuming rejection and filing a BP-11 Form. This issue
turns on a factual dispute that cannot be resolved on the
present record.
1. PLRA Exhaustion Requirements
*4 Exhaustion of administrative remedies is mandated not
only under principles governing habeas corpus, but also by
statute. “The PLRA requires that a prisoner seeking to bring
a lawsuit under any Federal Law must first exhaust all of his
administrative remedies.” Williams v. United States, 2004 WL
906221 at *5 (S.D.N.Y. Apr. 28, 2004) (internal quotation
marks omitted). The PLRA serves to provide corrections
officials the opportunity to address prisoner complaints
internally before being faced with the burden of federal
litigation. See Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir.
2004). “There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be
brought in court.” Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir.
2009) (internal quotation marks omitted). To exhaust a claim
and be in accordance with applicable procedure, a prisoner
must complete the administrative review process. See id.
2. BOP's Administrative Remedy Process
The BOP has established the Administrative Remedy
Program (the “ARP”) to give federal prisoners the
opportunity to seek review of an issue relating to his or her
confinement. (Peakes Decl. ¶ 6.) The ARP provides a four-
step process through which a federal prisoner may exhaust
their administrative remedies. See generally 28 C.F.R. § 542.
In accordance with the ARP, an inmate must first present his
issue informally to staff by filing a BP-8 form. (Peakes Decl.
¶ 7); 28 C.F.R. § 542.13. If the issue cannot be informally
resolved, an inmate may submit a formal Administrative
Remedy Request to the Warden by filing a BP-9 within twenty
calendar days of the date on which the basis for the request
occurred. See id.; 28 C.F.R. § 542.14. An inmate who wishes
to appeal the Warden's response to his formal request may
submit a BP-10 Form to the appropriate Regional Director
within twenty calendar days of the date of the Warden's
response. 28 C.F.R. § 542.15. An inmate who wishes to appeal
the Regional Director's denial may submit a BP-11 Form to
the General Counsel's Office within thirty calendar days of
the Regional Director's response. 28 C.F.R. § 542.15. If an
inmate has not received a response to his request or appeal
within the allotted time, the inmate may consider the appeal
denied. See 28 C.F.R. § 542.18. For a BP-10, the allotted time
is 30 days. Id.
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“When an inmate appeals a DHO report, that appeal properly
begins with the BP-10 Process.” (Peakes Decl. ¶ 12); 28
C.F.R. § 542.15. The BOP may reject an inmate's appeal for
failing to meet procedural requirements, including failure to
submit legible documents. 28 C.F.R. § 542.17(a); Crawford
v. Fisher, No. CV 11-0641, 2012 WL 465767, at *3 (D.
Minn. Jan. 5, 2012) (finding that a habeas petitioner who
failed to resubmit a legible BP-11 Form had failed to exhaust
his administrative remedies and was therefore barred from
seeking federal habeas relief), R. & R. adopted, 2012 WL
446247 (Feb. 13, 2012) (affirming that petitioner had failed to
exhaust his administrative remedies and therefore his habeas
claim was procedurally defaulted). “When a submission is
rejected, the inmate must be provided written notice ...
explaining the reason for rejection.” 28 C.F.R. § 542.17(b)
(“If the defect on which the rejection is based is correctable,
the notice shall inform the inmate of a reasonable time
extension within which to correct the defect and resubmit the
Request or Appeal.”).
3. Application
The parties' submissions give rise to at least two disputed
fact issues for which both parties have provided inadequate
support. First, Respondent contends that Petitioner's BP-10
was rejected as illegible. The support for that contention is a
brief one-sentence statement of a BOP legal assistant. (Peakes
Decl. ¶ 14.) That assertion, however, is not supported with any
documentation. According to Petitioner, having learned about
the alleged illegibility only from the Warden's opposition
to the instant Petition, the BP-10 is a carbon-copy form
with one original page and three copy pages, and the only
possible illegibility was on the fourth copy page, leaving three
duplicate legible pages. (Reply at 2-3.) Like Respondent,
Petitioner does not support his assertion with documentary
support. There thus is an unresolved fact issue as to whether
or to what extent the BP-10 was illegible.
*5 There also is a fact dispute as to whether Petitioner ever
received the BOP response rejecting his BP-10 as illegible.
That issue is material to determining whether Petitioner
had cause for not properly exhausting his administrative
remedies. In order to correctly comply with the ARP,
Petitioner was required to resubmit a legible BP-10 Form
upon rejection of his initial submission. (Peakes Decl. ¶
13-15); 28 C.F.R. §§ 542.15, 542.17(b). Instead, Plaintiff filed
a BP-11 to the BOP's General Counsel. (Peakes Decl. ¶ 16);
cf. Carmona, 243 F.3d at 634-35 (denying prisoner's petition
as procedurally defaulted for failure to properly appeal his
dispute to general counsel); Crawford, 2012 WL 465767, at
*3 (denying prisoner's petition because “Petitioner did not
resubmit his appeal, but filed his habeas petition instead”).
Affording his petition a liberal reading, as the Court must
for a pro se litigant, 3 Petitioner asserts that any procedural
default should be excused for cause and prejudice. Petitioner
argues that he never received a rejection of his BP-10, and
only filed the BP-11 Form because sixty days had passed with
no response to the BP-10 he submitted. (Reply at 2); see 28
C.F.R. § 542.18 (inmate may deem BP-10 rejected after 60
days without a response). Indeed, Petitioner asserts that his
BP-11 submission expressly invoked the regulatory provision
permitting him to appeal after 60 days without a response to
his BP-10. (Reply at 2.) Again, however, Petitioner's assertion
is not accompanied by documentary support. The Court thus
is left with an unresolved issue of whether Petitioner ever
received the denial of his BP-10. If he did not, then his filing
of a BP-11 after sixty days may satisfy the requirement to
exhaust his remedies.
To resolve the above issues, the Court would need to obtain
additional documentation and hold an evidentiary hearing.
But there is no need to do so because, even if Petitioner had
properly exhausted his remedies, his claim fails on the merits.
B. The BOP Did Not Violate Petitioner's Due Process
Rights
The BOP provided Petitioner with sufficient due process
protections and satisfied the relatively modest requirement
that the disciplinary board's decision was supported by some
evidence that is reliable. Petitioner's arguments to the contrary
have no merit.
1. The BOP Afforded Petitioner The Requisite
Procedures
The BOP granted Petitioner the limited due process
protections afforded to a prison inmate, namely “advance
written notice of the charges against him; a hearing affording
him a reasonable opportunity to call witnesses and present
documentary evidence; a fair and impartial hearing officer;
and a written statement of the disposition, including the
evidence relied upon and the reasons for the disciplinary
actions taken.” Sira, 380 F.3d at 69.
After the incident, the BOP provided Petitioner with advanced
written notice of the charges against him. (Incident Report at
1). On October 14, 2020, and again on October 20, 2020, the
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BOP notified Petitioner of his rights to present evidence and
witnesses, which he declined. (Incident Report at 5; Notice
of Disciplinary Hearing Before the DHO at 1-2; DHO Report
at 1.) Petitioner's hearing was conducted by a hearing officer,
and there is no evidence or suggestion in the record that
the hearing officer was not fair and impartial. Petitioner also
received a report detailing the DHO's decision, including the
evidence on which the DHO relied and its reasoning for
imposing the sanctions. (See DHO Report.) Taken together,
the Incident Report and DHO Report indicate that BOP
afforded Petitioner all necessary due process rights. See
Houston v. Linaweaver, No. 14-CV-2980, 2014 WL 3160908
at *4 (S.D.N.Y. July 15, 2014) (“The record thus disposes
of [petitioner]’s claim that his good-time credits were taken
from him without the procedural safeguards guaranteed by the
Constitution and by federal regulations.”)
*6 The BOP's decision also meets the evidentiary standards
that “some evidence supports the decision by the prison
disciplinary board to revoke good time credits,” Hill, 472 U.S.
at 455, 105 S. Ct. at 2774, and that such evidence is reliable.
See Luna, 356 F.3d at 488; Taylor 238 F.3d at 194. The results
of the DHO hearing were based on some reliable evidence;
specifically, recordings of Petitioner placing a call using
another inmate's telephone PIN, video footage of Petitioner
on the telephone, as well as Petitioner's admissions. (See DHO
Report at 2.) The BOP thus complied with the necessary due
process requirements, having afforded Petitioner the requisite
procedural safeguards and satisfied the evidentiary standard
on review.
2. Petitioner's Due Process Arguments Are Unfounded
Petitioner advances three arguments as to how the BOP
violated his due process rights: first, the interpreter at his
disciplinary hearing was biased against him and provided
a meaningless admission of guilt; second, the disciplinary
process demonstrated a deliberate pattern of misconduct;
and third, there was insufficient evidence that his actions
circumvented BOP's telephone monitoring procedures in
violation of Prohibited Act 297. (Reply at 3-6; Supplemental
Brief at 2.) None of those arguments stand up to scrutiny.
First, Petitioner asserts, and Respondent disputes, that
Petitioner's alleged admission was the product of a biased
interpreter. (Reply at 4-5.) The Court need not determine
whether that assertion is true. Petitioner has readily admitted
multiple times that he used the PIN code of another prisoner.
(See Incident Report at 1; Reply at 6; Supp. Reply at 2.)
Moreover, even absent any such admission, the video and
telephone recordings of Petitioner using another prisoner's
PIN are reliable evidence satisfying the requirements for a
valid DHO determination. See Hill, 472 U.S. at 455, 105 S.
Ct. at 2774-75; Luna, 356 F.3d 488.
Second, Petitioner points to three instances of “suspicious
documentation” that are trivial matters that had no impact
on the process he was afforded. (Reply at 3-5.) All
three instances relate to documentation issued by the Unit
Discipline Committee (“UDC”), the internal prison unit
that handles disciplinary issues and decides whether to
refer incident reports to the DHO for further review. 28
C.F.R. § 541.7. According to Petitioner, the documentary
discrepancies evince UDC “misconduct.” (Reply at 4.)
The first example concerns the Incident Report, which
initially contained the wrong date of the incident but was
amended just days later to correct the date. Petitioner asserts
that he did not receive the “corrected” Incident Report until
after his UDC hearing. But Petitioner does not suggest that
he did not have full notice of the incident at issue when the
hearing occurred. The typographical error and correction thus
did not prejudice Petitioner in any way. (See Reply at 4.) See
Agosto, 2014 WL 2217908 at *4 (“[petitioner's] claim that [ ]
the incident report was unconstitutionally deficient because
it was amended twice should be denied” because petitioner's
due process rights would only have been implicated if the
amendments had undermined the purpose of the advanced
written notice requirement). The second and third example
derive from a single alleged flaw – that, according to dates and
times in the documentation, Petitioner received and signed the
UDC's Notice Of DHO Hearing and Notice Of Rights before
he received and signed the initial Incident Report. While the
timing is unclear, even accepting Petitioner's sequence of
events, there was no prejudice, and he does not claim any.
(See Reply at 4.)
*7 In any event, even if such minor errors could be
construed as UDC “misconduct,” as Petitioner claims, they
still would not give rise to a due process violation. See
Grossman, 2019 WL 6114881, at *2 (“Petitioner received
all the process to which he was constitutionally entitled and
any noncompliance with internal prison regulations regarding
Petitioner's UDC hearing did not violate due process.”);
Agosto, 2014 WL 2217908, at *3 (“[T]o the extent internal
prison regulations grant protections beyond the constitutional
minimum, noncompliance with those regulations do not
typically offend due process.”).
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Petitioner's last argument is that the evidence of his violation
of Prohibited Act 297 was insufficient. Prohibited Act 297
prohibits “[u]se of the telephone for abuses other than illegal
activity which circumvent the ability of staff to monitor
frequency of telephone use....” 28 C.F.R. § 541.3. Petitioner
argues that he did not circumvent monitoring because BOP
was watching him commit the violation in real time via
security footage and had the ability to listen to the call
that Petitioner knew was being recorded. (Reply at 5-6.)
Petitioner's argument is essentially that he could not have
circumvented anything because he knew calls were recorded
and was caught in the act of making a call. But Petitioner
misses the point. PIN usage contributes to the ability of BOP
staff to monitor inmate telephone use, and abuse of another
inmate's PIN interferes with that monitoring ability. Based
on the plain language of the rule, the DHO correctly found
Petitioner in violation of Prohibited Act 297.
Conclusion
For the foregoing reasons, the petition for writ of habeas
corpus is without merit. Petitioner's arguments, to the extent
not addressed above, have been considered by the Court and
found to be without merit. Accordingly, I recommend that the
Petition be DENIED and the action dismissed.
Procedure For Filing Objections
And Preserving Right To Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and
6(d) of the Federal Rules of Criminal Procedure, the parties
shall have fourteen (14) days to file written objections to this
Report and Recommendation. Such objections shall be filed
with the Clerk of the Court, with extra copies delivered to
the Chambers of the Honorable John P. Cronan, 500 Pearl
Street, New York, New York 10007, and to Chambers of
the undersigned, 500 Pearl Street, New York, New York
10007. FAILURE TO FILE TIMELY OBJECTIONS
WILL RESULT IN WAIVER OF OBJECTIONS AND
PRECLUDE APPELLATE REVIEW.
All Citations
Not Reported in Fed. Supp., 2022 WL 2991015
Footnotes
1 “Peakes Decl.” refers to the Declaration of Marc Peakes, Legal Assistant at the Metropolitan Correctional
Center in New York, NY at Dkt. 9.
2 Prohibited Act 297 is a “High Severity Level Prohibited Act” that bars “[u]se of the telephone for abuses other
than illegal activity which circumvent the ability of staff to monitor frequency of telephone use, content of the
call, or the number called; or to commit or further a High category prohibited act.” 28 C.F.R. § 541.3(b).
3 See Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (district courts must read pro se
litigants' pleadings “liberally and interpret them to raise the strongest arguments that they suggest.”); Tracy
v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (“a court is ordinarily obligated to afford a special solicitude
to pro se litigants.”).
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Sallas v. Derr, Not Reported in Fed. Supp. (2023)
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2023 WL 2794793
Only the Westlaw citation is currently available.
United States District Court, D. Hawai‘i.
Cookie SALLAS, #12244-122, Petitioner,
v.
Warden Estela DERR, Respondent.
CIVIL NO. 23-00084 JMS-RT
|
Signed April 5, 2023
Attorneys and Law Firms
Cookie Sallas, Honolulu, HI, Pro Se.
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS PURSUANT
TO 28 U.S.C. SECTION 2241, ECF NO. 1
J. Michael Seabright, United States District Judge
*1 Before the court is pro se Petitioner Cookie
Sallas’ (“Sallas”) “Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. Section 2241 Seeking an Order
Directing the Bureau of Prisons to Apply First Step Act
Earned Time Credits” (“Petition”). ECF No. 1. The court
has reviewed the Petition pursuant to Habeas Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts (“Habeas Rules”). Because Sallas admits
that she failed to exhaust administrative remedies, and the
court concludes that waiving the exhaustion requirement is
not appropriate here, the Petition is DISMISSED without
prejudice, but without leave to amend.
I. BACKGROUND
On October 13, 2022, Sallas pleaded guilty to bank fraud,
in violation of 18 U.S.C. § 1344, and aggravated identify
theft, in violation of 18 U.S.C. § 1028A. See Memorandum
of Plea Agreement, United States v. Sallas, Cr. No. 22-00090
JMS (D. Haw. Oct. 13, 2022), ECF No. 69. On January
26, 2023, the court sentenced Sallas to a total term of ninth
months’ imprisonment and four years’ supervised release. See
Judgment in a Criminal Case, Sallas, Cr. No. 22-00090 JMS
(D. Haw. Jan. 26, 2023), ECF No. 78. 1
Sallas is now incarcerated at the Federal Detention Center
in Honolulu, Hawaii (“FDC Honolulu”). See Federal Bureau
of Prisons, https://www.bop.gov/inmateloc/ (select “Find By
Number”; enter “12244-122”; and select “Search”) (last
visited Apr. 5, 2023). The Federal Bureau of Prisons’ (“BOP”)
inmate locator currently states that Sallas’ projected release
date is September 6, 2023. Id.
On February 14, 2023, the court received the Petition. ECF
No. 1. In the Petition, Sallas seeks an order “directing
the BOP to apply [her] FSA Earned Time Credits.” 2 Id.
at PageID.1. If these credits were properly applied, Sallas
contends, she would be released sometime in June 2023. Id. In
the Petition, Sallas “admit[s] that [she] did not exhaust [her]
administrative remedies before seeking relief under 28 U.S.C.
Section 2241.” Id.
On March 3, 2023, the court issued an Order to Show Cause
Why the Petition, ECF No. 1, Should Not Be Dismissed. ECF
No. 4. The court ordered Sallas to show cause in writing why
the Petition should not be dismissed without prejudice for
failure to exhaust administrative remedies. Id. at PageID.12.
The court received Sallas’ Response on March 10, 2023.
ECF No. 5. Although the court provided Respondent with the
opportunity to file an optional response on or before March
31, 2023, see ECF No. 4 at PageID.13, she has opted not to
respond. Pursuant to Local Rule 7.1(c), the court elects to
decide the Petition without a hearing.
II. SCREENING
*2 Habeas Rule 4 states that a district court must “promptly
examine” each petition and dismiss a petition “if it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court.” See
Mayle v. Felix, 545 U.S. 644, 656 (2005); Hung Viet Vu v.
Kirkland, 363 F. App'x 439, 441–42 (9th Cir. 2010). This rule
also applies to a habeas petition brought under 28 U.S.C. §
2241. See Habeas Rule 1(b) (providing that district courts
may apply the Habeas Rules to habeas petitions that are not
brought under 28 U.S.C. § 2254); Lane v. Feather, 584 F.
App'x 843, 843 (9th Cir. 2014) (“[T]he district court did not
err by applying Rule 4 of the Rules Governing Section 2254
Cases to the instant petition [under 28 U.S.C. § 2241].”).
III. DISCUSSION
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A. Habeas Petitions Under 28 U.S.C. § 2241
Section 2241 allows a district court to consider an application
for a writ of habeas corpus from a prisoner claiming to be “in
custody in violation of the Constitution or laws or treaties of
the United States[.]” 28 U.S.C. § 2241(a), (c)(3). “Generally,
motions to contest the legality of a sentence must be filed
under § 2255 in the sentencing court, while petitions that
challenge the manner, location, or conditions of a sentence's
execution must be brought pursuant to § 2241 in the custodial
court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.
2000).
B. Exhaustion of Administrative Remedies
“As a prudential matter, courts require that habeas petitioners
exhaust all available judicial and administrative remedies
before seeking relief under § 2241.” Ward v. Chavez, 678
F.3d 1042, 1045 (9th Cir. 2012) (citations omitted); see also
Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per
curiam) (“Federal prisoners are required to exhaust their
federal administrative remedies prior to bringing a petition for
a writ of habeas corpus in federal court.”).
Requiring a petitioner to exhaust her administrative
remedies aids “judicial review by allowing the appropriate
development of a factual record in an expert forum,”
conserves “the court's time because of the possibility that
the relief applied for may be granted at the administrative
level,” and allows “the administrative agency an opportunity
to correct errors occurring in the course of administrative
proceedings.” Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.
1983) (per curiam).
In general, proper exhaustion requires compliance with an
agency's deadlines and other critical procedural rules. See
Woodford v. Ngo, 548 U.S. 81, 88–93 (2006) (addressing
exhaustion in the context of administrative law, habeas
petitions filed pursuant to 28 U.S.C. § 2254, and the Prison
Litigation Reform Act); see also Kelly v. Dir., Fed. Bureau of
Prisons, 2014 WL 1270530, at *4 (E.D. Cal. Mar. 26, 2014)
(applying Woodford to a habeas petition brought pursuant to
28 U.S.C. § 2241).
*3 Federal inmates may “seek formal review of an issue
relating to any aspect of his/her confinement” through the
administrative remedy program. 28 C.F.R. § 542.10(a). The
administrative remedy program consists of the following four
steps: (1) presenting an issue of concern informally to staff,
see 28 C.F.R. § 542.13(a); (2) submitting a formal request
for administrative remedies to a facility's warden, see 28
C.F.R. § 542.14(a); (3) appealing to the appropriate Regional
Director, see 28 C.F.R. § 542.15(a); and (4) appealing to
the BOP's General Counsel, see id.; see also Seina v. Fed.
Det. Ctr.-Honolulu, 2016 WL 6775633, at *5 (D. Haw. Nov.
15, 2016) (describing the BOP's four-step administrative
remedy procedure). “Inmates may seek review of the loss of
earned FSA Time Credits through the [BOP's] Administrative
Remedy Program.” 28 C.F.R. § 523.43(b) (citation omitted).
Courts have discretion to waive the exhaustion requirement in
various situations, including “where administrative remedies
are inadequate or not efficacious, pursuit of administrative
remedies would be a futile gesture, irreparable injury will
result, or the administrative proceedings would be void.”
Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (internal
quotation marks and citation omitted). This discretion,
however, “is not unfettered.” Id. at 998; see also Murillo v.
Mathews, 588 F.2d 759, 762 n.8 (9th Cir. 1978) (“Although
the ‘(a)pplication of the rule requiring exhaustion is not
jurisdictional, but calls for the sound exercise of judicial
discretion,’ it is not lightly to be disregarded.”) (citation
omitted). A “key consideration” in exercising such discretion
is whether “ ‘relaxation of the requirement would encourage
the deliberate bypass of the administrative scheme.’ ” Laing,
370 F.3d at 1000 (citation omitted).
District courts may sua sponte dismiss a petition filed
pursuant to 28 U.S.C. § 2241 for failure to exhaust
administrative remedies. See Kunsman v. Carlson, 934 F.2d
324 (9th Cir. 1991) (unpublished) (affirming sua sponte
dismissal of habeas petition); Warren v. Floyd, 35 F.3d 573
(9th Cir. 1994) (unpublished) (same); see also Feldman v. U.S.
Parole Comm'n, 841 F.2d 1129 (9th Cir. 1988) (unpublished)
(stating that a district court may sua sponte dismiss for failure
to exhaust administrative remedies after providing notice to
the petitioner and an opportunity to oppose the dismissal).
Here, Sallas admits in the Petition that she has not exhausted
her administrative remedies. See ECF No. 1 at PageID.1
(“I did not exhaust my administrative remedies.”). Thus, the
Petition must be dismissed unless the court concludes, as a
matter of discretion, that the exhaustion requirement should
be waived.
In her Response, Sallas asserts that the exhaustion
requirement should be waived because administrative
remedies were effectively unavailable to her. ECF No. 5
at PageID.14. According to Sallas, she attempted to pursue
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administrative remedies but an unnamed prison official at
FDC Honolulu refused to provide her with a grievance form.
Id. In some situations, courts have waived an exhaustion
requirement where prison officials failed to provide grievance
forms to inmates. See Sapp v. Kimbrell, 623 F.3d 813, 822
(9th Cir. 2010) (citing decisions in other circuits holding that
exhaustion is not required where prison officials refuse to
give a prisoner the forms necessary to file an administrative
grievance).
The court declines to waive the exhaustion requirement here,
however, for several reasons. First, to the extent Sallas asserts
that earned time credits should be applied, “[t]he computation
of a prisoner's length of confinement is exactly the type of
case in which the exhaustion of administrative remedies is
appropriate.” Jones v. Reese, 1998 WL 827504, at *1 (N.D.
Cal. Nov. 24, 1998) (citing Chua Han Mow v. United States,
730 F.2d 1308, 1313–14 (9th Cir. 1984)). Indeed, the BOP is
particularly well suited to consider such claims. See Hanson
v. Hendrix, 2022 WL 4182535, at *2 (D. Or. Sept. 13, 2022)
(“[T]he exhaustion requirement is particularly well-suited to
address issues involving eligibility for earned time credits, as
BOP has the authority to calculate prison sentences.”). Thus,
the BOP is well suited to address Sallas’ claims.
*4 Second, Sallas still has time to pursue her claims
administratively. According to Sallas, even if her earned time
credits were properly applied, she would not be released
from FDC Honolulu until sometime in June 2023. As a
result, Sallas has at least this month and next to exhaust her
administrative remedies. Thus, this is not a situation where
irreparable injury will result from requiring exhaustion.
Finally, requiring Sallas to exhaust her administrative
remedies aids “judicial review by allowing the appropriate
development of a factual record in an expert forum,”
conserves “the court's time because of the possibility that
the relief applied for may be granted at the administrative
level,” and allows “the administrative agency an opportunity
to correct errors occurring in the course of administrative
proceedings.” Ruviwat, 701 F.2d at 845; see also Yanagihara
v. Derr, 2023 WL 2163685, at *5 (D. Haw. Feb. 22, 2023)
(dismissing habeas petition challenging calculation of First
Step Act earned time credits because petitioner failed to
exhaust administrative remedies). Waiving the exhaustion
requirement in this case would only encourage other inmates
to skirt the BOP's administrative remedy program.
The best method for Sallas to have her claims considered
at this time, therefore, is through the BOP's administrative
remedy program. See Mohammad v. Thompson, 2022 WL
4484545, at *3 (E.D. Cal. Sept. 27, 2022) (“The BOP should
be given the first opportunity to address petitioner's argument
that he is entitled to ... earned time credits.”), report and
recommendation adopted, 2022 WL 17721472 (E.D. Cal.
Dec. 15, 2022).
IV. CONCLUSION
1. The Petition is DISMISSED without prejudice, but
without leave to amend, because Sallas failed to exhaust
administrative remedies and waiver of the exhaustion
requirement is not appropriate in this case.
2. Upon request by Sallas, Respondent is DIRECTED to
ensure that Sallas receives any forms required to exhaust
administratively the claims raised in the Petition.
3. The Clerk is DIRECTED to close this case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 2794793
Footnotes
1 Unless otherwise specified, all other references to filings in this Order are to the docket in Civ. No. 23-00084
JMS-RT.
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2 Section 3632(d)(4)(A) provides that those eligible federal inmates who successfully complete evidence-based
recidivism reduction programming or productive activities may earn time credits that are applied toward time
in prerelease custody or supervised release. See 18 U.S.C. § 3632(d)(4)(A)–(D).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Sarro v. Billingsley, Not Reported in F.Supp.2d (2013)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2013 WL 120817
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Michael SARRO, Petitioner,
v.
T. BILLINGSLEY, Warden, FCI Otisville, Respondent.
No. 11 Civ. 9395(MHD).
|
Jan. 10, 2013.
MEMORANDUM & ORDER
MICHAEL H. DOLINGER, United States Magistrate Judge.
*1 Petitioner Michael Sarro seeks a writ of habeas corpus,
pursuant to 28 U.S.C. § 2241, to challenge the calculation
by the United States Bureau of Prisons of his five-year
federal prison sentence. That sentence was imposed on the
basis of Sarro's 2009 conviction in the United States District
Court for the District of Massachusetts on separate counts
of bank robbery and attempted bank robbery. Sarro asserts
that the decision of the Bureau of Prisons violated his rights
to due process and equal protection. Respondent opposes,
contending that the petition is meritless and, alternatively,
that relief is barred based on Sarro's failure to exhaust his
administrative remedies.
For the reasons that follow, we deny the writ and dismiss the
petition.
The Pertinent History
The issues raised by petitioner turn on the intersection of
two criminal justice systems and their respective handling
of sentencing and custodial arrangements for petitioner. We
provide a brief summary of his pertinent history.
On April 23, 2007, Sarro was charged in Peabody District
Court in Massachusetts with (1) daytime breaking and
entering, (2) larceny of more than $250.00 from a victim
over 60 years old or disabled, and (3) receipt of stolen
property. (Boyd Decl. Ex D1). On June 11, 2007, he pled
guilty to the first two charges. 1 The court sentenced him to
eighteen months imprisonment, but suspended all but the 53
days already served. The court placed Sarro under probation
supervision (id. at 2), requiring that he undergo treatment
at the Salvation Army Rehabilitation Program in Saugus,
Massachusetts. (Id. Ex. C ¶ 56). He was also ordered to pay
restitution. (Id.; see also id. Ex. D at 2).
On December 28, 2007, the Probation Department sought and
obtained a warrant for Sarro's arrest for violation of release
conditions—specifically, for his leaving the rehabilitation
program early and failing to pay restitution. (Id. Ex. C ¶
56). 2 On January 18, 2008, before the state warrant could be
executed, Sarro and another man robbed a bank in Saugus.
On January 23, 2008, Sarro attempted to rob another bank
in Lynn, Massachusetts. (Id. Ex. C ¶¶ 2, 9, 17). The next
day, state authorities arrested Sarro on the probation-violation
warrant (id. Ex. D at 6–7), and he subsequently admitted to
his participation in the two bank robbery incidents. (Id. Ex.
C ¶¶ 16–17).
The Massachusetts Probation Department obtained an order
to detain Sarro without bail. His detention continued until
March 12, 2008. (Id. Ex. D at 3). On March 12, 2008, Sarro
conceded having violated the terms of his probation and was
remanded to the Suffolk County House of Correction for a
period of eighteen months. (Id. at 4).
In the meantime, on February 25, 2008, federal authorities
filed a criminal complaint charging Sarro with bank robbery
and attempted bank robbery. (United States v. Milano, 08
Cr. 10108, Dkt. # 1 (D.Mass.)). By way of a writ of habeas
corpus ad prosequendum, Sarro was presented on the federal
complaint on March 18, 2008, at which time he was ordered
detained pending trial, and was promptly returned to state
custody. (Boyd Decl. Ex. C ¶ 3). A federal grand jury returned
a two-count indictment on May 6, 2008, charging Sarro with
bank robbery and attempted bank robbery. (Id. at ¶ 1). Once
again, Sarro was ordered to appear in federal court pursuant to
a writ of habeas corpus ad prosequendum (id. Ex. E at 4), and,
on June 11, 2008, Sarro waived indictment and pled guilty
to both counts before the United States District Judge Joseph
L. Tauro. (Id. Ex. C ¶ 4). Sarro continued to serve his state
sentence pending sentencing in the federal matter. 3
*2 On February 26, 2009, Sarro appeared in federal court
under a third writ of habeas corpus ad prosequendum. (See
United States v. Milano, 08 Cr. 10108, Dkt. # 27 (D.Mass.)).
He was sentenced to sixty months on each of the two counts
against him, the sentences to run concurrently. The District
Judge stated that the federal sentence should run concurrently
with the state sentence “effective on the date of sentencing:
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February 26, 2009.” (Boyd Decl. Ex. B at 2). On April 2,
2009, Sarro was released from state custody into federal
custody in order to serve the balance of his federal sentence.
(Id. Ex. E at 4–5; id. Ex. F).
In April 2010, Sarro filed an administrative request seeking
a recalculation of his sentence by the Bureau of Prisons. In
his Initial Request for Administrative Remedy, Sarro noted
that he had received jail credit on his federal sentence for the
period from January 24, 2008 (the date of his state arrest)
to March 13, 2008 (the day he began his state probation-
violation sentence), and he asked that he be credited as well,
nunc pro tunc, with the additional time he spent in state
custody before he was sentenced by the federal court, that
is, from March 14, 2008 to February 26, 2009. In doing so
he acknowledged the discretion of the Bureau whether to
designate his service of a state sentence as counting toward
his federal term. (Id. Ex. A at 7–8). The Warden responded
that the time period for which Sarro sought credit had been
spent serving his state sentence, and that accordingly he could
not be credited with the same incarcerative time for federal-
sentence purposes. (Id. at 6).
Sarro administratively appealed, citing Barden v. Keohane,
921 F.2d 476 (3d Cir.1990) (recognizing Bureau's authority
to designate state prison as a place of federal confinement),
and reiterated his contention that the Bureau should nunc
pro tunc credit him with the 349–day period in question.
(Boyd Decl. Ex. A at 4–5). On June 16, 2010, the Bureau's
Regional Director affirmed the Warden's decision. (Id. at
3). Sarro pursued the final level of administrative appeal,
noting that Judge Tauro had specified that his federal sentence
was to run concurrently with his state sentence (id. at 2);
however, by decision dated November 9, 2010, the Bureau's
Administrator for National Inmate of Appeals denied the
appeal, citing 18 U.S.C. §§ 3585(a) and (b) and BOP Program
Statement 5880.28. He observed that section 3585(a) and
the Program Statement both bar the commencement of a
sentence before it is imposed. The Administrator noted that,
under Willis v. United States, 438 F.2d 923 (5th Cir.1971),
Sarro had nonetheless received sentencing credit for the
period from his re-arrest by state authorities, on January 24,
2008, to the date of his sentencing, on March 11, 2008, for
violating state probation. As for the succeeding period, for
which Sarro also sought credit, the Administrator noted that
§ 3585(b) precluded granting Sarro federal-sentence credit,
since, from March 12, 2008 forward, he had been serving his
state sentence. (Boyd Decl. Ex. A at 1).
The Current Proceeding
*3 In Sarro's petition to this court, he does not make the same
request as he did on his administrative application and appeal.
Rather, he pursues a somewhat different argument in pursuit
of a somewhat different form of relief. Sarro previously urged
the Bureau to adopt a discretionary nunc pro tunc designation
crediting his federal sentence for the period between the date
of his sentencing for state parole violations and the date of his
federal sentencing. In contrast, he now argues that, because
of a federal detainer issued while he was in state prison, he
was denied a state parole hearing that would have led to his
release from state prison as early as August 27, 2008, and,
accordingly, his federal sentence should be credited for the
time from August 27, 2008 through February 25, 2009—that
is, up until the day of his federal sentencing. In support of this
application Sarro cites Rosemond v.. Menifee, 137 F.Supp.2d
270 (S.D.N.Y.2000), and Ballard v. Blackwell, 449 F.2d 868
(5th Cir.1971), arguing that the denial of this credit would
violate his rights to due process and equal protection. (Pet. ¶¶
12–13; Petr's Reply at 2–6).
ANALYSIS
As noted, respondent opposes the current petition on two
basic grounds—first, that it is meritless and, second, that
Sarro failed to exhaust his administrative remedies with
respect to the arguments raised in his current petition.
Although much of respondent's merits argument is modestly
off-point, we conclude that the writ should be denied on both
grounds. We first address exhaustion.
Federal prisoners are required to exhaust their administrative
remedies before pursuing court intervention. See, e.g.,
Beharry v.. Ashcroft, 329 F.3d 51, 62 (2d Cir.2003); Carmona
v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.2001).
This requirement “protect[s] the authority of administrative
agencies, limit[s] interference in agency affairs, develop[s]
the factual record to make judicial review more efficient,
and resolv[es] issues to render judicial review unnecessary.”
Beharry, 329 F.3d at 62 (brackets inserted). The court
has discretion to waive the exhaustion requirement if “(1)
available remedies provide no genuine opportunity for
adequate relief; (2) irreparable injury may occur without
immediate judicial relief; (3) administrative appeal would be
futile; and (4) in certain instances a plaintiff has raised a
substantial constitutional question.” Id.
In this case Sarro pursued his administrative route, but failed
either to present his current argument or to request the specific
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relief for which he now asks. This surely represents a failure
on his part to exhaust his remedies since the Bureau never
had to consider his current theory or to require him to flesh
out the factual grounding that underlies it—that is, that the
federal detainer was responsible for his not being released
from state prison custody as early as August 2010. That failing
alone is a sufficient basis to deny the current petition absent
any showing of a persuasive basis for relieving petitioner of
his exhaustion obligation. 4 See Ortiz v. McBride, 380 F.3d
649, 663 (2d Cir.2004) (noting that when a prisoner has both
exhausted and unexhausted claims, only the exhausted claims
should be permitted to proceed in federal court). That said,
since we find petitioner's underlying claim to be meritless, we
choose to address it here rather than remit him to whatever
agency remedies may still be available to him.
*4 Determinations of sentence credits and related
calculations are to be made by the Bureau after imposition
of sentence, and not by the sentencing judge at the time
of sentence. See, e.g., United States v. Wilson, 503 U.S.
329, 335–36 (1992). Sentence calculation is governed by 18
U.S.C. § 3585, which provides:
(a) Commencement of Sentence.—A sentence to a term
of imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at the official
detention facility at which sentence is to be served.
(b) Credit for Prior Custody.—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.
As § 3585(b) makes apparent, the time that Sarro spent in state
custody from his arrest on state probation-violation charges
—an event that post-dated Sarro's commission of the federal
crimes—up to the time when he began to serve his state
sentence must be credited to his federal sentence, since it
has not been credited toward his state sentence. Thus, the
time from January 24, 2008 (when he was arrested by state
authorities) through March 11, 2008 (the day before he was
sentenced for probation violations and began to serve that
sentence) is to be credited to his federal sentence. It is not
disputed that the Bureau has given Sarro that credit.
What Sarro seeks now is a different, additional credit. He
contends that, under Massachusetts law, absent any federal
charges or detainer, he was eligible for parole consideration
on his state prison sentence as of August 27, 2008; however,
he insists that the existence of the federal detainer precluded
such potential release (Pet'r's Reply at 2), and he implies that,
but for the detainer, he would in fact have been released at that
time. (Id. at 5). Under this assumption, Sarro contends that
he spent an additional 305 days in state prison (that is, until
February 26, 2009, when he was federally sentenced), which
he asserts should be credited toward his federal sentence. 5
The immediate problem with Sarro's argument is that §
3585(b) does not authorize giving a credit on a federal
sentence for any prison time that has already been credited
to another sentence, whether state or federal. Indeed, the
Supreme Court and the Second Circuit have repeatedly read
this statutory language as precluding such double-counting.
See, e.g., Wilson, 503 U.S. at 333; Lopez v. Terrell, 654
F.3d 176, 178 (2d Cir.2011); Villanueva v. United States,
346 F.3d 55, n. 3 (2d Cir.2003); United States v. Labeille–
Soto, 163 F.3d 93, 99 (2d Cir.1998); Werber v. United States,
149 F.3d 172, 173 (2d Cir.1998). The time for which Sarro
seeks a credit is time he spent in state custody serving
his probation-violation sentence, and thus was credited to
that state sentence. It may not also be credited toward his
federal sentence. Moreover, as noted, § 3585(a) specifies
that a federal sentence commences only after sentence is
pronounced, see, e.g ., Lopez, 654 F.3d at 185; Lebeille–Soto,
163 F.3d at 98; Gomes v. Billingsley, 2012 WL 546744, *2
(S.D.N.Y. Feb. 21, 2012), and the period for which Sarro
seeks federal credit preceded his federal sentencing.
*5 In seeking to avoid these analytical difficulties, Sarro
invokes a limited exception, recognized by a number of
courts, under which—notwithstanding the wording of §
3585—a federal prisoner seeking credit for incarcerative time
in state custody may prevail if he can demonstrate that a
federal detainer or other action by federal authorities was the
“exclusive” cause of his remaining in state custody during
the period for which he seeks federal credit. See, e.g., Shaw
v. Smith, 680 F.2d 1104, 1106 (5th Cir.1982); Ballard, 449
F.2d at 869; Rosemond, 137 F.Supp.2d at 275. That exception
has not, as yet, been adopted by the Second Circuit, and
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other courts here and in other circuits have held that it cannot
apply to time periods that have already been credited to a
state sentence—that is, they have held that the prohibition
on double-counting trumps any such exception. See, e.g.,
Rivera v. Killian, 2008 WL 1990093, *3 (S.D.N.Y. May
8, 2008); Tisdale v. Menifee, 166 F.Supp.2d 789, 791–92
(S.D.N.Y.2001); accord Mathison v. Morrison, 2007 WL
3224671, n. 11 (D.Minn. Nov. 1, 2007). If we were to apply
such reasoning to this case, Sarro's claim would fail, since, in
effect, he is seeking a double-counting.
In any event, even under the reasoning set forth in Rosemond
and Ballard, Sarro's argument is unsustainable because he
cannot demonstrate that the time that he spent in state prison
after August 27, 2008 was attributable exclusively to the
federal detainer. When sentenced on February 26, 2008 to
eighteen months in prison for a state probation violation,
he faced a sentence that, by its terms, would not expire
until August 2009. Even if we assume the accuracy of his
assertion that by August 27, 2008 he was potentially eligible
for parole release, he faces the daunting task of establishing
that, absent the detainer, he would have been released to
parole supervision as of that time. He clearly cannot make that
showing, and indeed, in his papers, he does not even attempt
to do so.
As Sarro notes, the pertinent Massachusetts statute specifies
that parole may not be granted “merely as a reward for
good behavior” and rather is to based solely on the Parole
Board's conclusion “that there is a reasonable probability
that, if such a prisoner is released, he will live and remain
at liberty without violating the law, and that his release
is not incompatible with the welfare of society.” Mass.
Gen. Laws ch. 127 § 130; see also 120 Mass.Code Regs.
§ 300.04. This language plainly grants the Parole Board
discretion and directs its attention to the question of potential
recidivism. In this case, Sarro cannot show that if the Board
had been free to consider his case in the absence of a federal
detainer, it would have granted parole in August 2008—
only six months after his sentencing for parole violation—
or anytime thereafter. Indeed, he was not merely serving a
sentence for conviction on his underlying crime, but rather
was serving a prison term predicated on his having violated
two separate conditions of his probation mere months after
having been sentenced by the State for larceny and breaking
and entering. Still more damaging to his case for parole would
have been the fact that he was, at the time, facing federal
charges for carrying out one bank robbery and attempting a
second, both during the period that he was on state probation.
Given Sarro's record, it cannot seriously be contended—other
than as a matter of sheer speculation verging on wishful
thinking—that the Parole Board would have released him
at any time between August 27, 2008 and March 11, 2009,
even if the federal authorities had not filed a detainer. See
Gomes, 2012 WL 546744, at *2, n. 1 (rejecting petitioner's
“exclusive reason” argument since he had already been in
state custody for ten months before detainer was lodged);
Mitchell v. Killian, 2011 WL 710612, *2 (S.D.N.Y. Feb.
25, 2011) (conclusory assertion that petitioner would have
been released on bail absent detainer reflects failure of
proof); Rivera, 2008 WL 1990093, at *4 (petitioner in state
custody for four months before detainer lodged); Saunders
v. Unnamed Warden, 2008 WL 2775763, *7 (D.N.J. July 14,
2008) (petitioner had no scheduled parole release date or even
parole grant decision). Compare Rosemond, 137 F.Supp.2d
at 275 (petitioner removed from state custody only two days
before scheduled conditional release, and after return to state
custody he was released within two days). 6
*6 Ultimately, Sarro's argument reduces to the assertion
that the federal detainer prevented the Parole Board from
exercising whatever discretion it had under Massachusetts
law to consider him for parole. That assertion, which we take
to be accurate, does not save his case since, even under the
exception to § 3585(b) that he is invoking, he has the burden
to show that the federal action was “the exclusive reason for
the prisoner's failure to obtain his release”, United States v.
Blankenship, 733 F.2d 433, 434 (6th Cir.1984) (emphasis in
original), and he plainly cannot do so.
CONCLUSION
For the reasons stated, the writ is denied and the petition is
dismissed with prejudice. A certificate of appeal is denied as
petitioner fails to present any issue justifying appeal.
All Citations
Not Reported in F.Supp.2d, 2013 WL 120817
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Footnotes
1 The third charge was dismissed with the agreement of the State.
2 The record reflects an inconsistency as to when Probation obtained the warrant. The state records reflect the
December 28 date, while the federal pre-sentence report mentions December 10. (Id. Ex. D at 3; id. Ex. C
f 56). We assume the accuracy of the State's documentation as to its own court records, particularly in light
of the fact that the pre-sentence report relies solely on word of mouth.
3 It bears mention that the physical transfer of a state prisoner to federal authorities under a writ of habeas
corpus ad prosequendum does not give way to federal “custody” of that prisoner for purposes of crediting
service of his or her federal sentence. See, e.g., United States v. Fermin, 252 F.3d 102, 108 n. 10 (2d
Cir.2001) (citing inter alia Roche v. Sizer, 675 F.2d 507, 510 (2d Cir.1982)).
4 Sarro attempts to explain his failure to assert his present argument during the time of his administrative
appeal by asserting that he was unaware at the time of caselaw authority that potentially supports his current
position. (Pet'r's Reply at 7). That hardly constitutes justification for waiving the exhaustion requirement. See
Johnson v. Sullivan, 2006 WL 37037, *3 (C.D.Cal. Jan. 4, 2006) (“Petitioner's lack of legal knowledge is
not ‘cause’ [for failure to exhaust administrative remedies] because it is not an objective factor external to
petitioner which prevented compliance with the exhaustion requirement.”)
5 In apparent response to respondent's due-process analysis, which concerns only whether Sarro had a
sufficient expectation of parole to trigger due-process protection (see Resp's Memo at 5–7), petitioner also
argues that the denial of a parole hearing by Massachusetts authorities is itself a due-process violation
irrespective of whether parole would have been granted. (Pet'r's Reply at 3–5). The implication of this theory
—in effect, that as a matter of due process he should have received a hearing despite the detainer—is
groundless. See Menechino v. Oswald, 430 F.2d 403, 409 (2d Cir.1970) (prisoner does not have a procedural
due process right in seeking parole release and “[i]t is questionable whether a Board of Parole is even
required to hold a hearing on the question of whether a prisoner should be released on parole.”). In any event,
petitioner's theory does not translate into a viable claim for federal sentence credit. As we discuss below,
even the caselaw that Sarro cites makes clear that, in accordance with § 3585(b), relief is available, if at all,
only upon a showing by the inmate that but for a federal detainer or other federal action he would have been
released earlier from state confinement.
6 We note as well that the state authorities did not relinquish custody of Sarro until April 2, 2009—some
time after his federal sentencing—further undercutting the assumption that he was held only because of the
detainer. See Gomes, 2012 WL 546744, at *2, n. 1.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Spring v. Schult, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 3232183
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Bruce Derek SPRING, Petitioner,
v.
Deborah SCHULT, Respondent.
No. 9:08–CV–0531 (LEK).
|
Oct. 1, 2009.
Attorneys and Law Firms
Bruce Derek Spring, pro se.
Hon. Andrew T. Baxter, United States Attorney, Charles E.
Roberts, Esq., Assistant United States Attorney, of Counsel,
Syracuse, NY, for the Respondent.
MEMORANDUM–DECISION AND ORDER
LAWRENCE E. KAHN, District Judge.
I. BACKGROUND
*1 On May 20, 2008, Petitioner pro se Bruce Derek Spring
(“Spring” or “Petitioner”) filed a Petition seeking a writ
of habeas corpus in this District pursuant to 28 U.S.C. §
2241. Petition (Dkt. No. 1). In that pleading, he claims that:
I) the Inmate Financial Responsibility Program (“IFRP”)
created by the Bureau of Prisons (“BOP”) is unconstitutional;
ii) the sentencing court improperly delegated the restitution
portion of Spring's sentence to the BOP; and iii) as a result
of Spring's failure to participate in the IFRP, he has been
wrongfully deprived of numerous privileges available to other
inmates at his facility, his life has been threatened and he
has been continually harassed. See Petition, Grounds One
through Three. On October 22, 2008, the Office of the
United States Attorney for the Northern District of New York
filed a response in opposition to Spring's petition. Response
(Dkt. No. 19). On November 14, 2008, Spring filed a reply
memorandum of law in further support of his request for
federal habeas intervention. Reply (Dkt. No. 20).
In a Memorandum–Decision and Order issued on July 21,
2009, this Court denied all grounds for relief in Spring's
Petition with the exception of his claims which allege that
he has been harassed, deprived of various privileges and that
both his safety and life have been threatened by employees
of the Federal Correctional Institution at Ray Brook (“Ray
Brook”). See Memorandum–Decision and Order (Dkt. No.
26). As to those remaining claims, Respondent was directed
to file a supplemental memorandum of law which addressed
the substance of those remaining aspects of Spring's Petition.
Id. at 6.
Respondent filed her supplemental brief on August 19,
2009. See Supp. Br. (Dkt. No. 28). In that supplemental
memorandum, Respondent claims that Spring's remaining
claims must be dismissed because Petitioner failed to fully
exhaust his administrative remedies relating to such claims
prior to commencing this federal habeas corpus action. Id. at
2–13.
II. DISCUSSION
The Second Circuit has engrafted an exhaustion requirement
on habeas petitions brought by inmates pursuant to 28 U.S.C.
§ 2241. See United States ex rel. Scranton v. State of New
York, 532 F.2d 292, 294 (2d Cir.1976); Hinebaugh v. Wiley,
137 F.Supp.2d 69, 75 (N.D.N.Y.2001) (Kahn, J.); Franceski
v. Bureau of Prisons, No. 04 CIV. 8667, 2005 WL 821703, at
*4 (S.D.N.Y. Apr. 8, 2005).
Federal inmates who wish to legally challenge the conditions
of their confinement must utilize the Administrative Remedy
Program developed by the BOP, which is set forth at 28
C.F.R. § 542.10 et seq. Under this process, inmates must first
attempt to resolve their complaints informally by discussing
the matter with a member of the institution's staff. See
28 C.F.R. § 542.13(a). If that informal procedure does not
successfully resolve the matter, the inmate's next step is to file
an Administrative Remedy Request with the facility's Warden
within twenty days of the date on which the conduct that
forms the basis of the complaint occurred. See 28 C.F.R. §
542.14(a). If the inmate is not satisfied with the Warden's
response, the inmate may then pursue his complaint by filing
an appeal with the Regional Director of the BOP. See 28
C.F.R. § 542.15(a). If the inmate is dissatisfied with the
Regional Director's determination, the inmate can exhaust his
administrative remedies by filing a national appeal with the
BOP's Central Office in Washington, D.C. within 30 calendar
days of the date the Regional Director's response. See 28
C.F.R. § 542.15(a). 1 No administrative appeal is considered
to be fully exhausted until it has been reviewed by the BOP's
Central Office. See Crumby v. Martinez, No. CV–08–1900,
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Spring v. Schult, Not Reported in F.Supp.2d (2009)
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2009 WL 2877034, at *4 (M.D.Pa. Sept. 2, 2009) (citation
omitted). Moreover, the burden of demonstrating exhaustion
of available remedies rests with the § 2241 petitioner. See e.g.,
Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir.2001).
*2 Respondent claims that Spring has not fully exhausted
the allegations he has asserted in this habeas action and that
therefore his remaining claims must be dismissed by the Court
on this procedural basis. See Supp. Br. at 5. In support of this
assertion, Respondent has supplied the Court with the August
13, 2009 affidavit of BOP Legal Assistant C. Magnusson,
in which she has provided detailed testimony concerning her
search of the BOP's records regarding grievances filed by
Spring. Magnusson Aff. (Dkt. No. 28, Attach.2).
After having reviewed of the administrative record supplied
to the Court, as well as the Magnusson affidavit, this Court
agrees with the Respondent that Spring failed to fully exhaust
his administrative remedies with respect to the remaining
claims asserted by him in this action. In fact, it appears to this
Court as though Spring may have only fully exhausted one
of the numerous grievances he has filed while an inmate at
Ray Brook. 2 However, that grievance, which was submitted
by him more than two months after he commenced this
action, alleged that a corrections officer at Ray Brook grabbed
Spring's arm through a slot on the door of his cell, causing
“sever damage” to his shoulder. See Dkt. No. 28, Attach. 6 at
8. That exhausted grievance, which was filed subsequent to
the commencement of this action, did not refer, in any way, to
any of the issues about which Spring complains in the petition
before this Court. Thus, it is of no moment that Spring has
apparently exhausted his administrative remedies with respect
to that claim.
In Carmona v. United States Bureau of Prisons, the Second
Circuit opined that a federal inmate's failure to fully utilize
the administrative remedies available to a him prior to
commencing an action under 28 U.S.C. § 2241 constitutes
a procedural default relating to such claims that may “only
be excused upon a showing of cause and prejudice.” 243
F.3d 629, 634–35 (2d Cir.2001); see also Hinebaugh, 137
F.Supp.2d at 75.
To establish legal “cause” in this context, Spring must
demonstrate that “ ‘something external to the petitioner,
something that cannot be fairly attributed to him’ “ prevented
him from fully exhausting his administrative remedies. Tineo
v. United States, 977 F.Supp. 245, 253 (S.D.N.Y.1996)
(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)).
Objective factors constituting cause in this context includes
interference by officials which made compliance with the
relevant procedural rules impractical. See Hinebaugh, 137
F.Supp.2d at 75 (citing Tineo, 977 F.Supp. at 253). Legal
cause has also been found where the petitioner demonstrates
that “the factual or legal basis for a claim was not reasonably
available” to him at the relevant time. Tineo, 977 F.Supp. at
253 (citing McCleskey v. Zant, 499 U.S. 467, 494 (1991)).
A prisoner's desire to promptly commence a habeas petition
rather than fully exhausting his administrative remedies,
however, does not constitute cause that would excuse a
petitioner from the consequences of his failure to exhaust his
administrative remedies. Bauer v. Henman, 731 F.Supp. 903,
906 (S.D.Ill.1990).
*3 In the present action, Petitioner has not alleged—must
less established—cause for his failure to fully exhaust the
administrative remedies relating to the grievances that form
the basis of the claims that remain in this action. 3
Since Petitioner has not demonstrated any cause for his
default, this Court need not decide whether he suffered
prejudice, because federal habeas relief is unavailable as to
procedurally barred claims unless both cause and prejudice
are demonstrated. See Stepney v. Lopes, 760 F.2d 40, 45 (2d
Cir.1985). In light of the foregoing, this Court denies, as
procedurally forfeited, the remaining claims in this action.
III. CONCLUSION
Accordingly, it is hereby
ORDERED, that Spring's claims which allege, inter alia,
that he has been harassed, deprived of various privileges, and
that his safety and life have been threatened as discussed
more fully by Spring in his habeas petition are DENIED and
DISMISSED; and it is further
ORDERED, that Spring's Petition (Dkt. No. 1) is DENIED
and the above-captioned action is DISMISSED; and it is
further
ORDERED that the Clerk of the Court serve a copy of this
Order on the parties.
IT IS SO ORDERED.
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All Citations
Not Reported in F.Supp.2d, 2009 WL 3232183
Footnotes
1 An inmate may bypass the institutional level if he “reasonably believes the issue is sensitive and [his] safety or
well being would be placed in danger if the Request became known at the institution.” 28 C.F.R. § 542.14(d)
(1). The inmate may then submit his Administrative Remedy Request directly to the appropriate Regional
Director as a “sensitive” request. Id.
2 As of the date of Magnusson's Affidavit, Petitioner had submitted approximately seventy eight separate
submissions which sought some sort of administrative relief regarding his incarceration at Ray Brook.
Magnusson Aff. at ¶ 31.
3 Spring did not seek permission from this Court to file any reply to Respondent's supplemental brief.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Thomas v. Warden FCI Ray Brook, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 4086139
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Gregory THOMAS, Petitioner,
v.
WARDEN FCI RAY BROOK, Respondent.
9:18-cv-00430 (MAD/TWD)
|
Signed 06/28/2021
Attorneys and Law Firms
Gregory Thomas, 13366-052, Petitioner, pro se, Ray Brook,
Federal Correctional Institution, PO Box 900, Ray Brook, NY
12977
ANTOINETTE T. BACON, Acting United States Attorney,
OF COUNSEL: EMER M. STACK, ESQ., Assistant United
States Attorney, Northern District of New York, Attorney for
Respondent, 100 S. Clinton St., Syracuse, NY 13261.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
I. INTRODUCTION
*1 This matter has been referred for a Report-
Recommendation by the Honorable Mae A. D'Agostino,
United States District Judge, pursuant to 28 U.S.C. §
636(b) and N.D.N.Y. Local Rule 72.3(c). Petitioner Gregory
Thomas, an inmate at the Federal Correctional Institution
(“FCI”) in Ray Brook, New York, brings this pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
(Dkt. No. 1.) Petitioner does not challenge his conviction,
but rather alleges that the Federal Bureau of Prisons (“BOP”)
improperly denied him credit toward his federal sentence for
time spent in state custody. Respondent Warden FCI Ray
Brook has filed a response, together with the Declaration of
Alan Ray, a Correctional Program Specialist employed by the
BOP at the Designation and Sentence Computation Center in
Grand Prairie, Texas. (Dkt. No. 5.) Petitioner filed a reply.
(Dkt. No. 8.) For the reasons discussed below, the Court
recommends denying and dismissing the petition.
II. BACKGROUND
On April 14, 2005, Petitioner was arrested by the Syracuse
Police Department and charged with resisting arrest, loitering,
and criminal possession of a controlled substance in the
third and seventh degree in Onondaga County Court in case
number I-2005-1205-1. (Dkt. No. 5-1 at ¶ 5; see also Dkt.
No. 5-2 at 2-3. 1 ) On April 19, 2005, a parole violator warrant
(#436748) was lodged by the State of New York in Onondaga
County Court in case number I-2001-0184-1. (Dkt. No. 5-1
at ¶ 6.)
On July 20, 2005, while in state custody, Petitioner was
indicted on federal charges in this Court in case number
5:05-CR-0322-13 (NAM). (Dkt. No. 5-2 at 3.) Petitioner was
temporarily transferred to federal custody after the issuance
of a writ of habeas corpus ad prosequendum on August 2,
2005. (Dkt. No. 5-1 at ¶ 7.) Although it appears the state
charges filed in case number I-2005-1205-1 were dismissed
on March 9, 2006, Petitioner remained in state custody related
to the state parole violation in case number I-2001-0184-1.
(See Dkt. No. 1-1 at 36; Dkt. No. 5-10 at 8.)
On May 23, 2007, following a jury trial, the Honorable
Norman A. Mordue, Senior United States District Judge,
sentenced Petitioner in case number 5:05-CR-0322-13
(NAM) to a term of imprisonment of 360 months for
conspiracy to engage in a pattern of racketeering activity.
(Dkt. No. 5-1 at ¶ 8. 2 )
On June 14, 2007, after sentencing, Petitioner was returned to
state custody. (Dkt. No. 5-1 at ¶ 9.) It thus appears Petitioner
remained in temporary federal confinement through his
federal trial and sentencing.
*2 On July 31, 2007, Petitioner's state parole was revoked,
and he was re-paroled and taken into federal custody. Id.
at ¶ 10. The BOP calculated Petitioner's federal sentence
beginning on July 31, 2007, the same date he was released on
parole from the State of New York. Id. at ¶ 15. He received
five days of jail credit from April 14, 2005, through April 18,
2005. Id.
On October 10, 2014, Petitioner filed an administrative
grievance with the BOP seeking federal credit for time served
in state custody from August 2, 2005, through May 23, 2007.
(Dkt. No. 5-15 at 10.) On November 12, 2014, the BOP denied
Petitioner's request:
Originally, you were re-paroled from your New York
Sentence on May 20, 2004. On April 19, 2005 you
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were remanded back to New York State custody for
violating your Parole. According to your Presentence
Investigation Report, you remained in “Primary” state
custody related to the state parole violation. Additionally,
your Jail Credit memorandum dated August 28, 2007 states
in part “04-19-2005 Parole Warrant issued, and inmate
held on New York State Parole warrant. On 07-31-2007
parole revoked, and re-paroled same day. Total credit
given to parole revocation 843 days from 04-19-2005 to
07-31-2007. Information verified with New York State
Parole.”
On August 2, 2005, while you were in service of your New
York State parole sentence, you were produced on a Federal
Writ to answer charges for your instant federal offense. On
May 23, 2007, while on Federal Writ from New York State,
you were sentenced to three hundred sixty (360) months for
Conspiracy to Engage in a Pattern of Racketeering Activity.
Subsequently, on September 13, 2011, your sentence was
amended to a term of two hundred ninety-two (292)
months. Jail credit awarded to your federal sentence was
from April 14, 2005 to April 18, 2005....
With regard to the period you spent in Federal custody,
documentation provided by New York State Division of
Parole reflected the period of credit you are seeking has
already been credited to the service of the state sentence. To
double-credit this period to your federal sentence would be
contrary to the law, Title 18 U.S.C. § 3585(b), and Bureau
of Prisons policy.
Therefore, based on the foregoing, we have accurately
computed your sentence computation as starting on July 31,
2007, the date you were re-paroled from New York State.
Id. at 8-9. Petitioner exhausted his administrative remedies
by appealing the denial to the Regional Office and Central
Office. See id. at 2-7.
During the administrative grievance process Petitioner also
argued that he should receive a nunc pro tunc retroactive
designation, and that the BOP should exercise its discretion
to designate a state prison as the place for service of a
federal sentence. Id. On May 6, 2015, the BOP sent a letter
to Judge Mordue to obtain the Court's position regarding
the granting of a retroactive designation allowing Petitioner's
federal sentence to be served concurrent to his state sentence,
explaining, in part, that:
On May 23, 2007, Gregory Thomas was sentenced by
the Court to a 360-month (later reduced to 292-month)
term of confinement for Conspiracy to Engage in a
Pattern of Racketeering Activity. At the time the federal
sentence was imposed, Mr. Thomas was under the primary
jurisdiction of state authorities in New York, and in federal
custody pursuant to a Writ. The respective Judgment
in Criminal Case was silent regarding any relationship
with the forthcoming action in state court. Following
sentencing, Mr. Thomas was appropriately returned to state
authorities and the U.S. District Court Judgment was filed
as a detainer.
*3 On July 31, 2007, Mr. Thomas’ state parole was
revoked for the offense Criminal Possession of a Controlled
Substance and he was re-paroled.
Mr. Thomas satisfied his state obligation on July 31, 2007,
and was released to the federal detainer to commence the
service of his federal sentence as provided by Title 18
U.S.C. § 3585(a).
Mr. Thomas has requested that his federal sentence be
served concurrently with the state term, which would
be accomplished by the Bureau of Prisons (Bureau)
designating the state institution for service of his federal
sentence. Such action would thereby reduce the total
amount of time spent in custody. In Setser v. United States,
––– U.S. ––––, 132 S.Ct. 1463, 192 [ ] (2012) the United
States Supreme Court held that the authority to order a
federal sentence concurrent or consecutive with any other
sentence rests with the federal sentencing court.
Such a retroactive designation is made if the federal
sentencing Court indicates the federal term is to be
concurrent to the state term, or if the federal sentencing
Court does not state its intention, such designation may
be completed after the review of all factors under Title 18
U.S.C. § 3621(b).
(Dkt No. 5-10 at 2-3.)
On or about August 10, 2015, Judge Mordue responded both
by telephone, and email, as follows:
The Judge reviewed your letter dated
May 6, 2015, including consideration
of the Court's authority to impose a
consecutive or concurrent sentence in
this case, and after reviewing the case
material, he notes it was his intention
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to have the federal sentence run
consecutively with the undischarged
state term of imprisonment and
therefore, he finds no reason to deviate
now from that decision.
(Dkt. No. 5-11 at 2.) On August 11, 2015, the BOP denied
Petitioner's request for a retroactive designation. (Dkt. No.
5-12 at 2.) The BOP specifically considered and applied Judge
Mordue's direction in computing Petitioner's sentence. (Dkt.
No. 5-1 at ¶¶ 13,14; see Dkt. No. 5-12 at 2.)
At the time of briefing, Petitioner's projected release date was
October 29, 2024. Id. According to the publicly available
website maintained by the BOP, Petitioner's projected release
date is now June 26, 2024. 3
As noted, Petitioner argues that he is entitled to 21 months
and 23 days of credit toward his federal sentence, representing
time that he spent in state custody between August 2,
2005, and May 23, 2007. (Dkt. No. 1 at 3.) According to
Petitioner, his state charges were dismissed in case number
I-2005-1205-1 and because he “wasn't found guilty of a
crime” in that case, his time in “county jail” should be credited
towards his federal sentence pursuant to 18 U.S.C. § 3585(b).
Id.; see also Dkt. No. 1-1 at 36.
Respondent argues for denial of the petition, asserting
that the BOP's sentence calculation is correct. (Dkt. No.
5.) Specifically, Respondent argues that (1) Judge Mordue
has already denied Petitioner's request for his federal
sentence to run concurrently with his state sentence, and
Petitioner's request would effectively nullify the direction of
the sentencing court; (2) when a state inmate spends time on
a federal writ, the federal court merely “borrows” the inmate
and he continues serving his state term of imprisonment,
which is not credited toward any subsequent federal sentence;
and (3) Petitioner is seeking credit for time that has already
been credited toward his state term.
*4 In his reply, Petitioner maintains that he was improperly
denied credit against his federal sentence from August
2, 2005, through May 23, 2007, because, on March 9,
2006, Onondaga County State Court Judge John J. Brunetti
dismissed the state charges in case number I-2005-1205-1,
which “was never credited to [his] state or federal
sentence.” (Dkt. No. 8.) He claims the BOP “committed an
error, as well as abuse of discretion by acting contrary to
law” “by failing to include Petitioner's credit from August
2, 2005 to May 23, 2007 against his federal sentence, in
which facts shows was never credited to Thomas’ state or
federal sentence.” Id. at 4. Lastly, Petitioner argues that had
he “pleaded guilty to those pending state charges and had
been sentenced to a period of incarceration, it would have
been incumbent upon the district court to sentence [him]
to concurrent time to that sentence, pursuant to U.S.S.G. §
5G1.3(b)(2).” Id. at 3 (alteration in original).
III. DISCUSSION
Habeas corpus relief is available if a prisoner is “in custody in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). A § 2241 petition is generally
the appropriate vehicle to raise claims arising from a prison
official's computation of a prisoner's sentence. Poindexter v.
Nash, 333 F.3d 372, 377 (2d Cir. 2003).
Although a prisoner may later seek judicial review, it is the
responsibility of the BOP, and not the courts, to determine
the commencement of a federal sentence and calculate any
credit toward that sentence for time already served. Tisdale
v. Menifee, 166 F. Supp. 2d 789, 791 (S.D.N.Y. 2001) (citing
United States v. Montez–Gaviria, 163 F.3d 697, 700-01
(2d Cir. 1998)). Thus, with respect to a § 2241 petition
challenging the computation of credit on a federal sentence,
a district court has the power only to review a decision
by the BOP, not to make credit determinations in the first
instance. Wright v. Hudson, No. 9:12-CV-01638-JKS, 2015
WL 5971055, at *1 (N.D.N.Y. Oct. 14, 2015).
The earliest that a federal sentence may begin to run is on the
date that it was imposed. United States v. Labeille-Soto, 163
F.3d 93, 98 (2d Cir. 1998). The sentence commences when
the defendant is received into custody at the detention facility
designated by the BOP. 18 U.S.C. § 3585(a); Labeille-Soto,
163 F.3d at 98. When a defendant was in primary state custody
at the time his or her federal sentence was imposed, the BOP
must determine whether the district court intended the federal
sentence to run concurrently with, or consecutively to, the
state sentence. 18 U.S.C. § 3584(a); Dutton v. U.S. Attorney
Gen., 713 F. Supp. 2d 194, 199 (W.D.N.Y. 2010).
If the district court's judgment is silent on this issue, the court's
silence is construed as an intent to impose a consecutive
sentence, and the federal sentence commences only when
primary state custody over the defendant is relinquished.
Clapper v. Langrod, 186 F. Supp. 3d 235, 238 (N.D.N.Y.
2016) (citing 18 U.S.C. § 3584(a)). An inmate in this situation
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may ask the BOP for a retroactive designation of the non-
federal prison as the institution for service of the federal
sentence. Id. (citing 18 U.S.C. § 3621(b)). The BOP then
considers the inmate's personal circumstances in relation to
the factors set forth at 18 U.S.C. § 3621(b) to determine if
a nunc pro tunc designation is consistent with the intent of
the federal sentencing court or the criminal justice system. Id.
“The [BOP's] decision regarding nunc pro tunc designation is
reviewed for abuse of discretion.” Jennings v. Schult, 377 F.
App'x 97, 98 (2d Cir. 2010) (summary order).
If, however, the district court explicitly stated the federal
sentence should run concurrently with the state sentence,
the BOP will “designate the State correctional facility as
the place for the defendant to serve his Federal sentence,”
and the federal sentence “will be deemed to commence
upon imposition.” Clapper, 186 F. Supp. 3d at 238 (quoting
Dutton, 713 F. Supp. 2d at 199 (citing 18 U.S.C. §§ 3585(a),
3621(b))).
*5 When the BOP calculates any credit toward a federal
sentence from time served before the sentence was imposed,
18 U.S.C. § 3585(b) requires that the defendant “receive
credit only for detention time ‘that has not been credited
against another sentence.’ ” United States v. Wilson, 503 U.S.
329, 333 (1992) (quoting 18 U.S.C. § 3585(b)). Therefore,
under 18 U.S.C. § 3585(b), the BOP cannot grant an inmate
credit toward the federal sentence for the same period of time
in custody that has also been credited toward a state sentence.
Id. at 337 (“Congress made clear that a defendant could not
receive a double credit for his detention time.”); see Lopez v.
Terrell, 654 F.3d 176, 184-85 (2d Cir. 2011) (explaining that
the BOP is prohibited from crediting time against a federal
sentence that was already credited against a state sentence);
see also Ortiz v. Breckon, No. 9:17-CV-559 (LEK), 2018 WL
557879, at *3 (N.D.N.Y. Jan. 22, 2018) (“Time that has been
credited to a state sentence may not also be credited toward
a federal sentence because [18 U.S.C.] § 3585(b) prohibits
defendants from receiving ‘double credit for [their] detention
time.’ ”) (alteration in original) (quoting Wilson, 503 U.S. at
337 (other citations omitted)).
In this case, the BOP calculated Petitioner's federal sentence
beginning on July 31, 2007, the same date he was released on
parole from the State of New York. (Dkt. No. 5-1 at ¶ 15.) He
received five days of jail credit from April 14, 2005, through
April 18, 2005. Id. Because the time between August 2, 2005,
and May 27, 2007, was credited to Petitioner's state sentence
for the parole violation, the BOP was correct not to credit it
towards his federal sentence. 4 See Labeille-Soto, 163 F.3d
at 99 (“[A] defendant has no right to credit on his federal
sentence for time that has been credited against his prior state
sentence.”); Reynolds v. Warden of FCI Ray Brook, No. 9:16-
CV-1264 (TJM/TWD), 2020 WL 918766, at *1 (N.D.N.Y.
Feb. 26, 2020) (petitioner is not entitled to credit against a
federal sentence for time he spent incarcerated that counted
towards the term of his state sentence), aff'd, ––– F. App'x
––––, 2021 WL 2550413 (2d Cir. June 22, 2021); see also
United States v. Fermin, 252 F.3d 102, 108 n.10 (2d Cir. 2001)
(“The Bureau of Prisons could not credit Fermin for the time
he had already served because it was credited against another
sentence -- the state parole violation....”).
To the extent Petitioner argues that his federal sentence should
be deemed to have commenced as of August 5, 2005, when
he first entered federal custody pursuant to the writ of habeas
corpus ad prosequendum, this argument fails. As Respondent
correctly notes, “[w]hen a state prisoner is transferred into
federal custody pursuant to the writ, the state retains primary
custody over him or her because the prisoner is ‘on loan’ to
federal authorities.” (Dkt. No. 5 at 4, quoting Clapper, 186
F. Supp. 3d at 239.); see also United States v. Smith, 812 F.
Supp. 368, 371 (E.D.N.Y. 1993) (“A federal writ of habeas
corpus ad prosequendum merely loans the prisoner to federal
authorities.”); id. at 371 (“A federal sentence does not begin
to run ... when the defendant is produced for prosecution in
federal court pursuant to a federal writ of habeas corpus ad
prosequendum. Rather, the state retains primary jurisdiction
over the prisoner, and federal custody commences only when
the state authorities relinquish the prisoner on satisfaction of
the state obligations.”). Additionally, the date of August 5,
2005, precedes his May 23, 2007, sentencing by almost two
years and, as noted above, “under 18 U.S.C. § 3585(a), a
federal sentence cannot commence prior to the date on which
it is imposed.” Lopez v. Terrell, 654 F.3d 176, 185 (2d Cir.
2011).
*6 Moreover, to the extent Petitioner aruged during the
administrative grievance process that he should receive a nunc
pro tunc retroactive designation, the Court concludes that
the BOP did not abuse its discretion in denying Petitioner's
request to designate his state facility as his place of federal
confinement, either for the duration of his state custody
or for the period that he was temporarily transferred to
federal custody. As discussed above, the BOP contacted Judge
Mordue for the Court's position on a concurrent designation
and, thereafter, considered the 18 U.S.C. § 3621(b) factors,
including “any statement by the court that imposed the
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sentence,” and ultimately denied Petitioner's request. (Dkt.
No. 5-1 at ¶¶ 13,14; see Dkt. Nos. 5-10 through 5-12, 5-15.)
See, e.g., Wright, 2015 WL 5971055, at *1 (dismissing § 2241
petition where the record showed that the BOP considered the
18 U.S.C. § 3621(b) factors). As pointed out by Respondent,
the BOP calculated Petitioner's sentence exactly as directed
by the sentencing judge. (Dkt. No. 5 at 3-4.) See also
Ortiz, 2018 WL 557879, at *3 (“Because the BOP lacked
authority to designate the state facility as Petitioner's place
of federal confinement—thereby causing his sentences to run
concurrently, defying the federal sentencing court's intent—
it did not abuse its discretion by denying Petitioner's request
for a nunc pro tunc designation.”).
Lastly, Petitioner suggests in his reply memorandum that had
he “pleaded guilty to those pending state charges and had
been sentenced to a period of incarceration, it would have
been incumbent upon the district court to sentence [him]
to concurrent time to that sentence, pursuant to U.S.S.G. §
5G1.3(b)(2).” (Dkt. No. 8 at 3, alteration in original.) “But
arguments raised for the first time in a reply memorandum are
waived and need not be considered.” Cotona v. Fed. Bureau
of Prisons, No. 13 CIV. 609 JMF, 2013 WL 5526238, at
*2 (S.D.N.Y. Oct. 7, 2013) (citing Connecticut Bar Ass'n v.
United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010); Cioffi v.
Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 169
(2d Cir. 2006)). 5
Based on the foregoing, all of Petitioner's jail time has
been credited to either his federal or state sentence, and the
BOP's calculations are correct. Any remaining arguments are
without merit.
WHEREFORE, based on the findings above, it is hereby
RECOMMENDED that the petition (Dkt. No. 1) be
DENIED and DISMISSED; and it and it is further
ORDERED that the Clerk of the Court shall serve a copy
of this Report-Recommendation and Order on Petitioner,
along with copies of unpublished decisions cited herein in
accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)
(per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of
HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72.
All Citations
Not Reported in Fed. Supp., 2021 WL 4086139
Footnotes
1 Page citations refer to the pagination CM/ECF automatically generates. Excerpts from the record are
reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not
been corrected unless indicated.
2 On September 13, 2011, Petitioner's sentence was reduced from 360 months to 292 months. (Dkt. No. 5-1
at ¶ 11.) A review of the docket reveals that on March 30, 2018, Petitioner's sentence was reduced from 292
months to 235 months. See United States v. Thomas, No. 5:05-CR-0322-13 (NAM), Dkt. No. 1107.
3 See https://www.bop.gov/inmateloc/ (BOP Register Number 13366-052) (last visited June 28, 2021).
4 Although Petitioner claims that the time he spent in state custody from August 2, 2005, to May 23, 2007, was
“never credited to [his] state or federal sentence,” (Dkt. No. 8 at 4), the record demonstrates the 21 months and
23 days for which he seeks credit on his federal sentence were credited against his state sentence. (See Dkt.
No. 5-15 at 8, indicating “total credit given to parole revocation 843 days from 04-19-2005 to 07-31-2007”.)
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5 In any event, to the extent Petitioner “is arguing for relief under Section 5G1.3(b), this issue is more
appropriately resolved by the sentencing court pursuant to a motion under Section 2255 rather than this
Court pursuant to a petition under Section 2241.” Reynolds, 2019 WL 8064012, at *2 n.2 (citing Dixon v.
Terrell, No. 10-CV-5262, 2011 WL 4543712, at *11 (E.D.N.Y. Sept. 29, 2011); Jackson v. Killian, No. 08–
CV–4386, 2009 WL 1835004, at *3 (S.D.N.Y. June 23, 2004) (“Challenging the sentencing court's section
5G1.3 calculation is ‘more appropriately brought as an issue for the sentencing court pursuant to a motion
under [S]ection 2255, rather than the district court in a [S]ection 2241 habeas petition where petitioner is held
in custody.’ ” (quoting Saunders v. Unnamed Warden, No. 07-CV-4293, 2008 WL 2775763, at *7 (D.N.J. July
14, 2008) (denying habeas petition pursuant to Section 2241 where petitioner argued that he was entitled
to a downward departure or sentence reduction under Section 5G1.3)))). The Court expresses no opinion
on the success of any such motion.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01161-BKS-ML Document 24 Filed 02/04/26 Page 126 of 144

Thomas v. Warden FCI Ray Brook, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 4084306
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Gregory THOMAS, Petitioner,
v.
WARDEN FCI RAY BROOK, Respondent.
9:18-cv-00430 (MAD/TWD)
|
Signed 09/08/2021
Attorneys and Law Firms
GREGORY THOMAS, 13366-052, Ray Brook, Federal
Correctional Institution, P.O. Box 900, Ray Brook, New York
12977, Petitioner, pro se.
OF COUNSEL: EMER M. STACK, AUSA, OFFICE OF
THE UNITED STATES, ATTORNEY - SYRACUSE, 100
South Clinton Street, Suite 900, Syracuse, New York 13261,
Attorneys for Respondent.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 Petitioner Gregory Thomas, an inmate at the Federal
Correctional Institution (“FCI”) in Ray Brook, New York,
filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 on April 9, 2018. See Dkt. No. 1.
Plaintiff alleges that the Federal Bureau of Prisons (“BOP”)
improperly denied him credit toward his federal sentence
for time spent in state custody. See Dkt. No. 1 at 3. On
June 28, 2021, Magistrate Judge Dancks issued a Report-
Recommendation and Order, recommending that Plaintiff's
petition be denied and dismissed. See Dkt. No. 15.
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has held that the court is obligated to
“ ‘make reasonable allowances to protect pro se litigants’ ”
from inadvertently forfeiting legal rights merely because they
lack a legal education. Govan, 289 F. Supp. 2d at 295 (quoting
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Plaintiff has not filed an objection to the Report-
Recommendation and Order. When a party declines to file
an objection, the court reviews a recommendation for clear
error. See McAllan v. Von Essen, 517 F. Supp. 2d 672, 679
(S.D.N.Y. 2007). After the appropriate review, “the court may
accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate [judge].” 28 U.S.C.
§ 636(b)(1). Because the Plaintiff has not filed an objection,
the Court will review the recommendation for clear error.
In the present matter, the Court finds that Magistrate Judge
Dancks correctly determined that the petition must be denied
and dismissed. Petitioner cannot receive credit toward his
federal sentence for the same period of time that was credited
toward a state sentence. United States v. Wilson, 503 U.S. 329,
333, 337 (1992). Magistrate Judge Dancks correctly noted
that the period of time between August 2, 2005 and May 27,
2007 was credited to Petitioner's state sentence, and therefore
could not be credited to his federal sentence. Dkt. No. 15 at
8-10.
To the extent Petitioner also seeks review of the denial of a
nunc pro tunc designation for the state prison as a place of
federal confinement, Magistrate Judge Dancks correctly ruled
that the BOP did not abuse its discretion in its denial. The BOP
may grant the request for the retroactive designation of the
non-federal prison as the institution for service of the federal
sentence, pursuant to 18 U.S.C. § 3621(b). “The [BOP's]
decision regarding nunc pro tunc designation is reviewed for
abuse of discretion.” Jennings v. Schult, 377 Fed. Appx. 97,
98 (2d Cir. 2010).
The Court agrees with Magistrate Judge Dancks that the BOP
did not abuse its discretion in denying the nunc pro tunc
designation. The BOP contacted the federal sentencing judge,
Judge Mordue, and adequately considered the factors in 18
U.S.C. § 3621(b) before issuing its denial. See Dkt. No. 5-1
at ¶ 12; Dkt. No. 5-12.
*2 After carefully reviewing the Report-Recommendation
and Order, the entire record in this matter, and the applicable
law, the Court hereby
ORDERS that Magistrate Judge Dancks’ Report-
Recommendation and Order is ADOPTED in its entirety for
the reasons set forth herein; and the Court further
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Thomas v. Warden FCI Ray Brook, Not Reported in Fed. Supp. (2021)
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ORDERS that the petition (Dkt. No. 1) be DENIED and
DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 4084306
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01161-BKS-ML Document 24 Filed 02/04/26 Page 128 of 144

Untalan v. Derr, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 2868519
Only the Westlaw citation is currently available.
United States District Court, D. Hawai‘i.
Maria E. UNTALAN, #02702-093, Petitioner,
v.
Warden Estela DERR, Respondent.
CIVIL NO. 23-00091 JMS-RT
|
Signed April 10, 2023
Attorneys and Law Firms
Maria E. Untalan, Honolulu, HI, Pro Se.
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS PURSUANT
TO 28 U.S.C. SECTION 2241, ECF NO. 1
J. Michael Seabright, United States District Judge
*1 Before the court is pro se Petitioner Maria E.
Untalan's (“Untalan”) “Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. Section 2241, Seeking An Order
Directing the Bureau of Prisons (‘BOP’) to Apply First
Step Act (‘FSA’) Earned Time Credits & 1/3 Elderly
Credits” (“Petition”). ECF No. 1. The court has reviewed the
Petition pursuant to Habeas Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts
(“Habeas Rules”). Because Untalan admits that she failed to
exhaust administrative remedies, and the court concludes that
waiving the exhaustion requirement is not appropriate here,
the Petition is DISMISSED without prejudice, but without
leave to amend.
I. BACKGROUND
On June 25, 2019, Untalan pleaded guilty to conspiracy to
distribute methamphetamine hydrochloride, in violation of 21
U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(viii). See Criminal
Minutes, United States v. Untalan, Cr. No. 19-00023 (D.
Guam June 25, 2019), ECF No. 13. On August 24, 2022,
the court sentenced Untalan to 65 months’ imprisonment and
three years’ supervised release. See Judgment in a Criminal
Case, Untalan, Cr. No. 19-00023 (D. Guam Aug. 31, 2022),
ECF No. 200. 1
Untalan is now incarcerated at the Federal Detention Center
in Honolulu, Hawaii (“FDC Honolulu”). See Federal Bureau
of Prisons, https://www.bop.gov/inmateloc/ (select “Find
By Number”; enter “02702-093”; and select “Search”)
(last visited Apr. 10, 2023). The Federal Bureau of
Prisons’ (“BOP”) inmate locator currently states that
Untalan's projected release date is February 17, 2026. Id.
On February 15, 2023, the court received the Petition. ECF
No. 1. In the Petition, Untalan seeks an order “directing the
BOP to apply [her] FSA Earned Time Credits and 1/3 Elderly
Credits.” 2 Id. at PageID.1. If these credits were properly
applied, Untalan contends, she should have been released
on February 12, 2023. Id. In the Petition, however, Untalan
“admit[s] that [she] did not exhaust [her] administrative
remedies before seeking relief under 28 U.S.C. Section
2241.” Id.
On March 14, 2023, the court received Untalan's Supplement
to the Petition. ECF No. 5. In the Supplement, Untalan asserts
that she actually should have been released on February 15,
2023—not February 12, 2023—after subtracting from her
February 15, 2025 “Elderly Offender Two Thirds Date” both
twelve months pursuant to the First Step Act and twelve
months pursuant to the Second Chance Act. Id. at PageID.14.
*2 The court issued an Order to Show Cause Why the
Petition, ECF No. 1, Should Not Be Dismissed. ECF No. 4.
The court ordered Untalan to show cause in writing why the
Petition should not be dismissed without prejudice for failure
to exhaust administrative remedies. Id. at PageID.7. The court
received Untalan's Response on March 16, 2023, ECF No. 6,
and Respondent's Optional Response on April 6, 2023, ECF
No. 7. Pursuant to Local Rule 7.1(c), the court elects to decide
the Petition without a hearing.
II. SCREENING
Habeas Rule 4 states that a district court must “promptly
examine” each petition and dismiss a petition “if it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court.” See
Mayle v. Felix, 545 U.S. 644, 656 (2005); Hung Viet Vu v.
Kirkland, 363 F. App'x 439, 441–42 (9th Cir. 2010). This rule
also applies to a habeas petition brought under 28 U.S.C. §
2241. See Habeas Rule 1(b) (providing that district courts
may apply the Habeas Rules to habeas petitions that are not
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Untalan v. Derr, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
brought under 28 U.S.C. § 2254); Lane v. Feather, 584 F.
App'x 843, 843 (9th Cir. 2014) (“[T]he district court did not
err by applying Rule 4 of the Rules Governing Section 2254
Cases to the instant petition [under 28 U.S.C. § 2241].”).
III. DISCUSSION
A. Habeas Petitions Under 28 U.S.C. § 2241
Section 2241 allows a district court to consider an application
for a writ of habeas corpus from a prisoner claiming to be “in
custody in violation of the Constitution or laws or treaties of
the United States[.]” 28 U.S.C. § 2241(a), (c)(3). “Generally,
motions to contest the legality of a sentence must be filed
under § 2255 in the sentencing court, while petitions that
challenge the manner, location, or conditions of a sentence's
execution must be brought pursuant to § 2241 in the custodial
court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.
2000).
B. Exhaustion of Administrative Remedies
“As a prudential matter, courts require that habeas petitioners
exhaust all available judicial and administrative remedies
before seeking relief under § 2241.” Ward v. Chavez, 678
F.3d 1042, 1045 (9th Cir. 2012) (citations omitted); see also
Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per
curiam) (“Federal prisoners are required to exhaust their
federal administrative remedies prior to bringing a petition for
a writ of habeas corpus in federal court.”).
Requiring a petitioner to exhaust her administrative
remedies aids “judicial review by allowing the appropriate
development of a factual record in an expert forum,”
conserves “the court's time because of the possibility that
the relief applied for may be granted at the administrative
level,” and allows “the administrative agency an opportunity
to correct errors occurring in the course of administrative
proceedings.” Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.
1983) (per curiam).
In general, proper exhaustion requires compliance with an
agency's deadlines and other critical procedural rules. See
Woodford v. Ngo, 548 U.S. 81, 88–93 (2006) (addressing
exhaustion in the context of administrative law, habeas
petitions filed pursuant to 28 U.S.C. § 2254, and the Prison
Litigation Reform Act); see also Kelly v. Dir., Fed. Bureau of
Prisons, 2014 WL 1270530, at *4 (E.D. Cal. Mar. 26, 2014)
(applying Woodford to a habeas petition brought pursuant to
28 U.S.C. § 2241).
Federal inmates may “seek formal review of an issue
relating to any aspect of his/her confinement” through the
administrative remedy program. 28 C.F.R. § 542.10(a). The
administrative remedy program consists of the following four
steps: (1) presenting an issue of concern informally to staff,
see 28 C.F.R. § 542.13(a); (2) submitting a formal request
for administrative remedies to a facility's warden, see 28
C.F.R. § 542.14(a); (3) appealing to the appropriate Regional
Director, see 28 C.F.R. § 542.15(a); and (4) appealing to the
BOP's General Counsel, see id.; see also Seina v. Fed. Det.
Ctr.-Honolulu, 2016 WL 6775633, at *5 (D. Haw. Nov. 15,
2016) (describing the BOP's four-step administrative remedy
procedure).
*3 Courts have discretion to waive the exhaustion
requirement in various situations, including “where
administrative remedies are inadequate or not efficacious,
pursuit of administrative remedies would be a futile
gesture, irreparable injury will result, or the administrative
proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994,
1000 (9th Cir. 2004) (internal quotation marks and citation
omitted). This discretion, however, “is not unfettered.” Id.
at 998; see also Murillo v. Mathews, 588 F.2d 759, 762
n.8 (9th Cir. 1978) (“Although the ‘(a)pplication of the rule
requiring exhaustion is not jurisdictional, but calls for the
sound exercise of judicial discretion,’ it is not lightly to be
disregarded.”) (citation omitted). A “key consideration” in
exercising such discretion is whether “ ‘relaxation of the
requirement would encourage the deliberate bypass of the
administrative scheme.’ ” Laing, 370 F.3d at 1000 (citation
omitted).
District courts may sua sponte dismiss a petition filed
pursuant to 28 U.S.C. § 2241 for failure to exhaust
administrative remedies. See Kunsman v. Carlson, 934 F.2d
324 (9th Cir. 1991) (unpublished) (affirming sua sponte
dismissal of habeas petition); Warren v. Floyd, 35 F.3d 573
(9th Cir. 1994) (unpublished) (same); see also Feldman v. U.S.
Parole Comm'n, 841 F.2d 1129 (9th Cir. 1988) (unpublished)
(stating that a district court may sua sponte dismiss for failure
to exhaust administrative remedies after providing notice to
the petitioner and an opportunity to oppose the dismissal).
Here, Untalan admits in the Petition that she has not exhausted
her administrative remedies. See ECF No. 1 at PageID.1
(“I did not exhaust my administrative remedies.”). Thus, the
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Untalan v. Derr, Not Reported in Fed. Supp. (2023)
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Petition must be dismissed unless the court concludes, as a
matter of discretion, that the exhaustion requirement should
be waived.
In her Response, Untalan asserts that the exhaustion
requirement should be waived because administrative
remedies were “unavailable” to her. ECF No. 6 at PageID.21.
According to Untalan, she attempted to pursue administrative
remedies but an unnamed prison official at FDC Honolulu
refused to provide her with a grievance form. Id. In some
situations, courts have waived an exhaustion requirement
where prison officials failed to provide grievance forms
to inmates. See Sapp v. Kimbrell, 623 F.3d 813, 822 (9th
Cir. 2010) (citing decisions in other circuits holding that
exhaustion is not required where prison officials refuse to
give a prisoner the forms necessary to file an administrative
grievance).
The court declines to waive the exhaustion requirement here,
however, for several reasons. First, to the extent Untalan seeks
to challenge the duration of her period of incarceration, “[t]he
computation of a prisoner's length of confinement is exactly
the type of case in which the exhaustion of administrative
remedies is appropriate.” Jones v. Reese, 1998 WL 827504, at
*1 (N.D. Cal. Nov. 24, 1998) (citing Chua Han Mow v. United
States, 730 F.2d 1308, 1313–14 (9th Cir. 1984)). Indeed,
the BOP is particularly well suited to consider such claims.
See Hanson v. Hendrix, 2022 WL 4182535, at *2 (D. Or.
Sept. 13, 2022) (“[T]he exhaustion requirement is particularly
well-suited to address issues involving eligibility for earned
time credits, as BOP has the authority to calculate prison
sentences.”). Thus, the BOP is well suited to address Untalan’
claims.
Second, Untalan still has ample time to pursue her
claims administratively. According to Untalan, her statutory
projected release date is February 17, 2026, and her “elderly
offender two thirds date” is February 15, 2025. See ECF No.
5-1 at PageID.16.
Any First Step Act time credits earned by Untalan are
statutorily limited to twelve months. 3 See 18 U.S.C. §
3624(c)(1) (“The Director of the Bureau of Prisons shall, to
the extent practicable, ensure that a prisoner serving a term
of imprisonment spends a portion of the final months of that
term (not to exceed 12 months), under conditions that will
afford that prisoner a reasonable opportunity to adjust to and
prepare for the reentry of that prisoner into the community.”).
Thus, as Respondent explains, even assuming Untalan earns
the maximum number of earned time credits, her release date
would move up only from February 17, 2026, to February 17,
2025. See ECF No. 7 at PageID.32.
*4 To the extent Untalan asserts that her elderly offender
release date and earned time credits are cumulative, see ECF
No. 5 at PageID.14, she is mistaken. An inmate's elderly
offender release is calculated separate and apart from any time
credits earned by Untalan. See Salazar-Valenzuela v. Derr,
2023 WL 2691461, at *3 (D. Haw. Mar. 29, 2023) (“The
elderly offense release date is based on an inmate's entire
term of imprisonment—not the projected amount of time the
prisoner will actually serve with credits.”).
Untalan's reliance on the Second Chance Act, ECF No. 5
at PageID.14, is also misplaced. The Second Chance Act
states that the BOP must, “to the extent practicable, ensure
that a prisoner serving a term of imprisonment spends a
portion of the final months of that term (not to exceed 12
months), under conditions that will afford that prisoner a
reasonable opportunity to adjust to and prepare for the reentry
of that prisoner into the community.” 18 U.S.C. § 3624(c)
(1). The Second Chance Act is not an additional source of
time “credits.” See Suggs v. Saad, 2017 WL 1862468, at *5
(N.D.W. Va. May 9, 2017) (“[T]he Second Chance Act does
not require that an inmate receive a full twelve months of
halfway house placement, only that an inmate be considered
for placement up to twelve months to the extent practicable.”).
Thus, this is not a situation where irreparable injury will result
from requiring exhaustion.
Finally, requiring Untalan to exhaust her administrative
remedies aids “judicial review by allowing the appropriate
development of a factual record in an expert forum,”
conserves “the court's time because of the possibility that
the relief applied for may be granted at the administrative
level,” and allows “the administrative agency an opportunity
to correct errors occurring in the course of administrative
proceedings.” Ruviwat, 701 F.2d at 845; see also Yanagihara
v. Derr, 2023 WL 2163685, at *5 (D. Haw. Feb. 22, 2023)
(dismissing habeas petition challenging calculation of First
Step Act earned time credits because petitioner failed to
exhaust administrative remedies).
The best method for Untalan to have her claims considered,
therefore, is through the BOP's administrative remedy
program. See Mohammad v. Thompson, 2022 WL 4484545,
at *3 (E.D. Cal. Sept. 27, 2022) (“The BOP should be
given the first opportunity to address petitioner's argument
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Untalan v. Derr, Not Reported in Fed. Supp. (2023)
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that he is entitled to ... earned time credits.”), report and
recommendation adopted, 2022 WL 17721472 (E.D. Cal.
Dec. 15, 2022).
IV. CONCLUSION
1. The Petition is DISMISSED without prejudice, but
without leave to amend, because Untalan failed to exhaust
administrative remedies and waiver of the exhaustion
requirement is not appropriate in this case. This dismissal
does not preclude Untalan from filing a new habeas petition,
if necessary, after exhausting her administrative remedies.
2. Upon request by Untalan, Respondent is DIRECTED to
ensure that Untalan receives any forms required to exhaust
administratively the claims raised in the Petition.
3. The Clerk is DIRECTED to close this case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 2868519
Footnotes
1 Unless otherwise specified, all other references to filings in this Order are to the docket in Civ. No. 23-00091
JMS-RT.
2 Under 18 U.S.C. § 3632(d)(4)(A), eligible federal inmates who successfully complete evidence-based
recidivism reduction programming or productive activities may earn time credits that are applied toward time
in prerelease custody or supervised release. See 18 U.S.C. § 3632(d)(4)(A)–(D). Under 34 U.S.C. § 60541(g),
the Attorney General may place eligible elderly offenders on home detention until the expiration of the prison
term to which the offender was sentenced. See 34 U.S.C. § 60541(g).
3 According to Respondent, Untalan has not earned any time credits because she is a “holdover” inmate
awaiting designation by the BOP. See ECF No. 7 at PageID.31; ECF No. 7-1 at PageID.38; see also 28 C.F.R.
§ 523.42(a) (“An eligible inmate begins earning FSA Time Credits after the inmate's term of imprisonment
commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where
the sentence will be served).”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Wright v. Hudson, Not Reported in F.Supp.3d (2015)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Green v. Christensen, N.D.N.Y., July 6, 2023
2015 WL 5971055
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Dysha WRIGHT, Petitioner,
v.
HUDSON, Warden, Respondent.
No. 9:12–cv–01638–JKS.
|
Signed Oct. 14, 2015.
Attorneys and Law Firms
Dysha Wright, Pollock, LA, pro se.
Charles E. Roberts, Office of the United States Attorney,
Syracuse, NY, for Respondent.
MEMORANDUM DECISION
JAMES K. SINGLETON, JR., Senior District Judge.
*1 Dysha Wright, a federal prisoner proceeding pro se,
filed a Petition for a Writ of Habeas Corpus with this Court
pursuant to 28 U.S.C. § 2241. Wright is in the custody of the
Federal Bureau of Prisons (“BOP”) and incarcerated at USP
Pollock. Respondent has answered, and Wright has replied.
Wright does not challenge his conviction, but rather alleges
that the BOP improperly denied him credit toward his federal
sentence for time spent in state custody. For the reasons
discussed below, the Court rejects this claim.
I. BACKGROUND/PRIOR PROCEEDINGS
On March 24, 2007, Wright, who was then on state parole,
was arrested by the Philadelphia Police Department and
charged in case number CP–51–CR–0004044–2007 with
aggravated assault, criminal conspiracy engaging in murder,
firearms not to be carried without a license, and intentionally
and knowingly failing to relinquish a firearm. Although that
case was later dismissed, Wright remained in state custody
on pending parole violations in case numbers CP–51–CR–
0810791–2004 and CP–51–CR–1005761–2005.
While in state custody, Wright was indicted on federal
charges and temporarily transferred to federal custody after
the issuance of a writ of habeas corpus ad prosequendum 1
on August 17, 2007. On March 30, 2009, the United
States District Court for the Eastern District of Pennsylvania
sentenced Wright in case number Cr 07–433–01 to an
imprisonment term of 120 months for possession with
intent to distribute cocaine base, possession of a firearm in
furtherance of a drug trafficking crime, and possession of a
firearm by a convicted felon. 2 Wright was returned to the
state of Pennsylvania on April 7, 2009. It thus appears that
Wright remained in federal confinement through his federal
trial and sentencing.
On October 9, 2009, the Commonwealth of Pennsylvania
sentenced Wright in case number MC–51–CR–0026670–
2009, which appears to have involved new weapons-related
charges, to a term of imprisonment of 6 to 12 months. This
term of imprisonment expired on November 7, 2010.
On March 1, 2010, Wright was sentenced on his parole
violation in case number CP–51–CR–0810791–2004 to a
term of imprisonment of 9 to 18 months. He was awarded
credit for time served from March 24, 2007, to March 1, 2010;
his sentence thus expired the same day it was issued.
On April 6, 2010, Wright was sentenced on his parole
violation in case number CP–51–CR–1005761–2006 to a
term of imprisonment of 6 to 12 months to be served
consecutively to the term imposed in case number CP–51–
CR–0810791–2004. This term of imprisonment also expired
on November 7, 2010.
While serving his state sentences, Wright committed
additional offenses of aggravated assault, simple assault, and
recklessly endangering another person. He was sentenced
in case number MC–51–CR–0038219–2010 to a term of
imprisonment of 8 to 12 months. This term of imprisonment
expired on May 10, 2011. On that date, he was released to the
custody of the United States Marshals to begin service of his
federal sentence.
*2 In August 2011, Wright sought a retroactive nunc
pro tunc designation requesting that his state institution be
designated as his official place of imprisonment for his federal
sentence since his return to state custody on April 7, 2009,
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and that he receive credit for the time he spent in federal
imprisonment during his federal prosecution from August 17,
2007, to April 7, 2009. The BOP denied Wright's retroactive
designation request as follows on August 4, 2011:
According to the Designation
& Sentence Computation Center
(DSCC), you served a state parole
violation until 11–07–2010 and
remained in custody on assault
charges. You received another
sentence of 6 to 12 months and paroled
off this charge on 05–10–2011. Your
federal sentence begins on 05–10–
2011.
Wright administratively appealed the denial to the Regional
Office. The BOP then sent a letter dated January 31, 2012, to
the sentencing judge on the Eastern District of Pennsylvania
to obtain the court's position regarding Wright's request.
The Court indicated in response that it “d[id] not feel
strongly about whether a retroactive designation would be
appropriate” but “would probably give [Wright] the benefit of
the doubt and do a retroactive designation” if he had served
his state sentences without incident. The BOP nonetheless
denied Wright's administrative appeal on May 8, 2012:
As a result of the decision in Barden v. Keohane, the Bureau
of Prisons (Bureau) considers an inmate's request for prior
custody credit for time spent in state custody as a request
for a nunc pro tunc concurrent designation. In accordance
with Program Statement 5160.05, Designation of State
Institution for Federal Sentence, a designation effecting
concurrent service of state and federal sentences is made
only when it is consistent with the goals of the criminal
justice system.
We have reviewed your appeal in accordance with the
factors provided in 18 U.S.C. § 3621(b). [ 3 ] In your
case, we have determined the relevant factors under 18
U.S.C. § 3621(b) are (2), (3), (4) and (5). Under factor
(2), your federal offenses are Possession with Intent to
Distribute Cocaine, Possession of a Firearm by a Convicted
Felon, and Possession of a Firearm in Furtherance of a
Drug Trafficking Crime. Under factor (3), you have prior
arrests and/ or convictions for Parole Violation, Possession
of an Instrument of Crime, Simple Assault, Criminal
Trespass, Theft Unlawful Taking, Unauthorized Use of an
Auto, Possessing an Instrument of Crime, Simple Assault,
Terroristic Threats, Carrying Firearms without a License,
and Intentionally Possessing a Controlled Substance.
Under factor (4), the Court was silent concerning the
relationship of its sentence with any state sentence. Under
factor (5), one count of your federal sentence was in
violation of 18 U.S.C. § 924(c), which mandates a
consecutive term.
Pursuant to 18 U.S.C. § 3584(a) “multiple terms of
imprisonment imposed at different times run consecutively
unless the Court orders that the terms are to run
concurrently.” Therefore, the federal Court was contacted
for its input concerning its position on a concurrent
designation for you. The Court based its recommendation
on your disciplinary conduct while serving your previous
state sentences, however, your disciplinary record for the
relevant state sentence revealed several incidents of serious
misconduct.
*3 Based on the foregoing, we have determined that a
concurrent nunc pro tunc designation is not appropriate.
Your sentence has been computed in accordance with
the applicable statutes, Bureau police, and the sentencing
Court's intent.
Your appeal is denied.
Wright timely filed a Petition for a Writ of Habeas Corpus to
this Court on October 31, 2012.
II. GROUNDS RAISED
In his pro se Petition before this Court, Wright challenges the
denial of his nunc pro tunc request. According to Wright, he is
entitled to credit against his federal sentence since August 17,
2007, the date he was indicted in federal court and transferred
from state to federal custody via issuance of a writ of habeas
corpus ad prosequendum, and including the period he spent
in state custody from April 7, 2009, to May 10, 2011.
III. STANDARD OF REVIEW
Wright brings the instant Petition pursuant to 28 U.S.C. §
2241. As the Second Circuit has explained:
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Section 2241 ... is the proper means to
challenge the execution of a sentence.
In a § 2241 petition a prisoner may
seek relief from such things as, for
example, the administration of his
parole, computation of his sentence
by parole officials, disciplinary actions
taken against him, the type of
detention, and prison conditions in the
facility where he is incarcerated.
Adams v. United States, 372 F.3d 132, 135 (2d Cir.2004); see
also Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632
(2d Cir.2001); Chambers v. United States, 106 F.3d 472, 474–
75 (2d Cir.1997).
Although a prisoner can challenge determination of credit
on the federal sentence, “[t]he Attorney General, through
the BOP, possesses the sole authority to make credit
determinations pursuant to 18 U.S.C. § 3585(b); the district
courts do not have authority to order the BOP to either
grant or deny credit or to disregard the BOP's calculations.”
United States v. Whaley, 138 F.3d 205, 206–07 (2d Cir.1998)
(citing United States v. Wilson, 502 U.S. 329, 333, 335
(1992); see also United States v. Pineyro, 112 F.3d 43, 45
(2d Cir.1997) (“After a defendant is sentenced, it falls to
BOP, not the district judge to determine when a sentence is
deemed to ‘commence’; and whether the defendant should
be awarded credit for ‘good time.’ “ (citations omitted)). It
is well established that the “Bureau of Prisons, and not the
courts, determines when a defendant's sentence starts and
whether the defendant should receive any credit for any prior
time spent in custody.” United States v. Montez–Gaviria,
163 F.3d 697, 700–01 (2d Cir.1998); see also 18 U.S.C. §
3585(a). Thus, with respect to a § 2241 petition challenging
the computation of credit on a federal sentence, a district court
has the power only to review a decision by the BOP, not to
make credit determinations in the first instance.
Nunc pro tunc designation is a retroactive designation that
the BOP may grant in accordance with the discretion it is
given under 18 U.S.C. § 3621(b) to designate the place of
a federal prisoner's confinement. That provision allows the
BOP to designate a place of imprisonment “maintained by the
Federal Government or otherwise.” 18 U.S.C. § 3621(b). In
the event the BOP denies a nunc pro tunc designation, “any
further court review of the Bureau's action will be limited
to abuse of discretion.” Barden v. Keohane, 921 F.2d 476,
478 (3d Cir.1990). “[S]uch a designation by the BOP is
plainly and unmistakenly within the BOP's discretion and [the
court] cannot lightly second guess a deliberate and informed
determination by the agency charged with administering
federal prison policy.” Taylor v. Sawyer, 284 F.3d 1143, 1149
(9th Cir.2002) (citing McCarthy v. Doe, 146 F.3d 118, 123 (2d
Cir.1988); Barden, 921 F.2d at 478).
IV. DISCUSSION
*4 Wright's first argument is addressed to the BOP's
calculation of his sentence. Wright asserts that it is “crystal
clear” that he should be given credit against his federal
sentence from at least August 17, 2007, the date he was
transferred to federal custody pursuant to a federal writ of
habeas corpus ad prosequendum, to April 7, 2009, the date he
was returned to state custody after federal sentencing. Wright
contends that this is particularly true given that he was in
federal custody and had not, as of that time, been sentenced
in state court.
But Wright does not allege that the writ ad prosequendum
was invalid. Wright was thus transferred to federal custody
pursuant to a valid writ ad prosequendum, which operates
to allow a governmental entity “borrow” a prisoner from his
primary custodian. Lugo, 785 F.3d at 855 (citing Thomas
v. Whalen, 962 F.2d 358, 360–61 & n. 3 (4th Cir.1992)).
The record is clear that the Commonwealth of Pennsylvania
treated Wright as remaining within state custody during his
federal prosecution and credited that period of time towards
his state sentence. See id. (citing United States v. Fermin, 252
F.3d 102, 108 n. 10 (2d Cir.2001) (“a defendant held at a
federal detention facility is not ‘in custody’ for the purposes of
[commencement of a federal sentence] when he is produced
through a writ of habeas corpus ad prosequendum”)). When
Wright was released from state custody on May 10, 2011,
and delivered to federal officials, he began serving his federal
sentence. The BOP thus did not incorrectly calculate his
sentence with respect to the period he was under federal
prosecution. Id. at 855–56 (citing United States v. Labeille–
Soto, 163 F.3d 93, 99 (2d Cir.1998) (a “defendant has not
right to credit on his federal sentence for time that has been
credited against his prior state sentence”)); see also Tisdale v.
Menifee, 166 F.Supp.2d 789, 791–92 (S.D.N.Y.2001) (even if
petitioner was in federal custody when a federal detainer was
lodged against him, his claim for credit must be dismissed
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because he received state credit for the time served under the
federal detainer).
Wright further alleges that the BOP erred in denying his nunc
pro tunc designation request. Under 18 U.S.C. § 3621(b),
the BOP has the authority to designate a non-federal facility
as a place of federal confinement. Abdul Malik v. Hawk
Sawyer, 403 F.3d 72, 73 (2d Cir.2005). The practical effect
in such a case is that the federal and state sentences would
run concurrently. Id. (citing McCarthy, 146 F.3d at 122–
23); see also Barden, 921 F.2d at 480 (state incarceration
may be credited to federal sentence if the BOP nunc pro
tunc designates state facility as the facility where petitioner
served part of his federal sentence). The BOP is under no
obligation to grant a nunc pro tunc designation, but the BOP
must give full and fair consideration to the language of the
federal and state judgments, the state sentencing records, and
any other pertinent information relating to the federal and
state sentences in accordance with the factors enumerated
in 18 U.S.C. § 3621(b), as noted in note 3, supra. 4 BOP
Program Policy Statement 5160.05(9)(b)(4)(b) (governing
inmate requests for nunc pro tunc designations) (Docket No.
14–6 at 5–8).
*5 The record here shows that the BOP considered the
§ 3621(b) factors, as required by Barden. Specifically, in
its administrative appeal denial, the BOP gave a brief
explanation of why the nunc pro tunc designation was
inappropriate to each of the factors it deemed relevant. 5
With regard to the second factor, the BOP listed Wright's
federal offenses. While that cursory treatment might give the
Court pause that the BOP did not take into account “the
nature and circumstances of the offense[s]” as required, it
appears that the BOP was indicating that the federal offenses
were quite serious and unrelated to the parole violations and
assault convictions under which Wright was in state custody.
Under the third factor, “the history and characteristics of
the prison, the BOP provided a list of Wright's prior arrests
and/or convictions. Under the fourth factor, the BOP noted
that the federal sentencing court “was silent concerning the
relationship of its sentence with any state sentence.” The
BOP further found that the fifth factor, “any pertinent policy
statement issued by the Sentencing Commission pursuant
to section 994(a)(2) of title 28,” weighed against Wright's
request as one count of his federal sentence was in violation
of 18 U.S.C. § 924(c), which mandates a consecutive term.
Finally, the BOP noted that it had contacted the federal
sentencing court for its position on a concurrent designation,
and that court had based its recommendation on Wright's
disciplinary conduct while in jail, which the BOP indicated
“revealed several incidents of serious misconduct.” Thus,
because the BOP took into account all five factors under §
3621(b), it provided full and fair consideration to Wright's
nunc pro tunc request. Accordingly, the BOP did not abuse its
discretion in denying Wright's request.
Wright nonetheless argues that concurrent designation is
appropriate because the state court sentencing judge indicated
that his state imprisonment term should run concurrently
with the already-imposed federal term. According to Wright,
“The state judge had the authority to impose his sentence
consecutive to the federal sentence that was already imposed,
but given all the facts chose not to do so.” There does not
appear to be evidence in the record that the state court believed
Wright's state sentence would run concurrent to his federal
sentence. But even assuming that Wright's assertion is true,
that fact does not warrant relief because the state court's
determination is not binding on federal authorities. Abdul–
Malik, 403 F.3d at 75; Barden, 921 F.2d at 478 n. 4. In Johnson
v. Langford, the petitioner appealed the BOP's denial of his
nunc pro tunc request, arguing that the state court indicated
that the state and federal sentences would run concurrently.
No. 9:15–cv–0048, 2014 WL 582097, at *5 (N.D.N.Y. Oct. 5,
2015). The court rejected that argument, noting that, “[w]hile
it [wa]s quite clear from the sentencing transcript that the state
court judge believed that the state and federal sentences would
run concurrently, the intent of the state court judge cannot
change federal law.” Id.
*6 The record here indicates that the period of Wright's
federal prosecution was properly credited against Wright's
state sentence, and the BOP gave full and fair consideration
to Wright's nunc pro tunc request in accordance with the
BOP Program Policy Statement and 18 U.S.C. § 3621(b).
Accordingly, the BOP did not err in calculating Wright's
federal sentence and did not abuse its authority in denying
Wright a nunc pro tunc designation.
V. CONCLUSION
Wright is not entitled to relief on any ground raised in his
Petition.
IT IS THEREFORE ORDERED THAT the Petition under
28 U.S.C. § 2254 for a Writ of Habeas Corpus is DENIED.
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IT IS FURTHER ORDERED THAT the Court declines
to issue a Certificate of Appealability. 28 U.S.C. § 2253(c);
Banks v. Dretke, 540 U.S. 668, 705, 124 S.Ct. 1256,
157 L.Ed.2d 1166 (2004) (“To obtain a certificate of
appealability, a prisoner must ‘demonstrat[e] that jurists of
reason could disagree with the district court's resolution of
his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further.’ “ (quoting Miller–El v. Cockrell, 537 U.S.
322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003))). Any
further request for a Certificate of Appealability must be
addressed to the Court of Appeals. See FED. R. APP. P. 22(b);
2D CIR. R. 22.1.
The Clerk of the Court is to enter judgment accordingly.
All Citations
Not Reported in F.Supp.3d, 2015 WL 5971055
Footnotes
1 A writ of ad prosequendum orders the production of a prisoner in court for the purpose of standing trial. See
28 U.S.C. § 2241(c)(5); United States v. Mauro, 435 U.S. 340, 357–58 (1978). If a prisoner is serving a state
sentence when he is produced for a federal prosecution, the writ temporarily transfers him to federal custody
for prosecution but the state retains primary custody for the purpose of calculating his state sentence. Lugo
v. Hudson, 785 F.3d 852, 854–55 (2d Cir.2015) (citing United States v. Ferman, 252 F.3d 102, 108 n. 10
(2d Cir.2001)).
2 The Eastern District of Pennsylvania subsequently reduced the term of imprisonment to 114 months.
3 That section enumerates the following five factors:
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence-
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted;
or recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2)
of title 28.
18 U.S.C. § 3621(b).
4 The BOP does not have authority to decide whether a sentence should run concurrently or consecutively to
other sentences where the statutory presumptions of 18 U.S.C. § 3584(a) are applicable. McCarthy, 146 F.3d
at 122. Section 3584(a) presumes that “terms of imprisonment imposed at different times run consecutively .”
That presumption, however, only applies “where a term of imprisonment is imposed on a defendant who
is already subject to an undischarged term of imprisonment.” § 3584(a). The presumption of § 3584(a) is
inapplicable where, as here, a federal court imposes a sentence on a defendant who is not already subject to
a state sentence. McCarthy, 146 F.3d at 121–22; see also Abdul Malik, 403 F.3d at 75. Thus, the presumption
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of § 3584(a) does not apply to Wright's state prison term, and the BOP was required to provide full and fair
consideration of Wright's nunc pro tunc request.
5 The BOP indicated that it found the first factor, “the resources of the facility contemplated,” not applicable
to Wright's case.
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Zenquis v. Pullen, Not Reported in Fed. Supp. (2023)
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2023 WL 2931585
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
David Morales ZENQUIS, Petitioner,
v.
T. PULLEN, Caverly, and Eftaxas, Respondents.
3:22-CV-1151 (SVN)
|
Signed April 13, 2023
Attorneys and Law Firms
David Morales Zenquis, Danbury, CT, Pro Se.
Jillian Rose Orticelli, United States Attorney's Office,
Hartford, CT, for Respondents.
RULING ON RESPONDENTS’ MOTION TO DISMISS
SARALA V. NAGALA, UNITED STATES DISTRICT
JUDGE
*1 Petitioner David Morales Zenquis, a prisoner
incarcerated at the Federal Correctional Institution in
Danbury, Connecticut (“FCI Danbury”), has filed this
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, asking the Court to order that he be tested for
autism spectrum disorder (“ASD”) and provided psychiatric
treatment. Respondents have moved to dismiss the petition on
the ground that Petitioner failed to exhaust his administrative
remedies before commencing this action. For the following
reasons, Respondents’ motion to dismiss is DENIED.
I. SECTION 2241 AND EXHAUSTION OF
REMEDIES
A. Section 2241
Section 2241 grants federal courts jurisdiction to issue writs
of habeas corpus to prisoners “in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). A writ of habeas corpus under § 2241
“is available to a federal prisoner who does not challenge the
legality of his sentence, but challenges instead its execution
subsequent to his conviction.” Carmona v. U.S. Bureau of
Prisons, 243 F.3d 629, 632 (2d Cir. 2001). An inmate may
challenge under § 2241, for example, “such matters as the
administration of parole, computation of [his] sentence by
prison officials, prison disciplinary actions, prison transfers,
type of detention and prison conditions.” Jiminian v. Nash,
245 F.3d 144, 146 (2d Cir. 2001).
B. Exhaustion Procedures
Before filing a habeas petition pursuant to § 2241, prisoners
are required to exhaust the internal grievance procedures of
the Bureau of Prisons (“BOP”). Carmona, 243 F.3d at 634;
see also Razzoli v. Strada, No. 10-cv-4802 (CBA), 2013 WL
837277, at *2 (E.D.N.Y. Mar. 6, 2013) (citing Carmona, 243
F.3d at 634). The exhaustion requirement applicable to §
2241 petitions is judicial, rather than statutory. See Carmona,
243 F.3d at 634 (“[A]lthough § 1997e(a) of the Prisoner
Litigation Reform Act [(‘PLRA’)] ... contains a statutory
administrative exhaustion requirement, we have held, in the
context of a § 2254 petition, that the requirements of the Act
do not apply to habeas proceedings.... Doubtless the same rule
should obtain in § 2241 cases as in § 2254 petitions.” (cleaned
up)); see also Beharry v. Ashcroft, 329 F.3d 51, 56 (2d
Cir. 2003) (noting that the distinction between a statutorily
or judicially imposed exhaustion requirement is “pivotal”
because “statutory exhaustion requirements are mandatory,
while the judicial (common-law) exhaustion doctrine is
discretionary and includes a number of exceptions”). 1
*2 Relevant here, the BOP has a four-step process for
inmates to exhaust administrative remedies: (1) informal
resolution with prison staff through a BP-8 form, 28 C.F.R.
§ 542.13(a); (2) an initial formal request submitted to the
Warden using a BP-9 form, id. § 542.14; (3) an appeal to the
appropriate BOP Regional Director using a BP-10 form, id.
§ 542.15(a); and (4) a subsequent appeal to the BOP General
Counsel using a BP-11 form, id.
The BP-9 initial formal filing must be filed within twenty
calendar days “following the date on which the basis for the
Request occurred.” Id. § 542.14. 2 The inmate is to receive the
BP-9 form from “institution staff (ordinarily, the correctional
counselor).” Id. § 542.14(c)(1). After the inmate fills out the
form, he shall “date and sign the Request and submit it to the
institution staff member designated to receive such Requests
(ordinarily a correctional counselor).” Id. § 542.14(c)(4).
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The Warden must respond to the request within twenty
calendar days. 28 C.F.R. § 542.18. If the inmate does not
receive a response within the allotted time, he may consider
the absence of a response to be a denial and proceed to
the next step of the administrative remedy process. Id.; see
also Rosales v. Petrucci, No. 20-CV-2136 (CS), 2021 WL
5449701, at *4 (S.D.N.Y. Nov. 22, 2021) (if the inmate
has not received a response within the prescribed time, he
“may consider the absence of a response to be a denial at
that level”). An administrative appeal is not fully exhausted
until it has been considered by the General Counsel's Office
according to the proper deadlines and procedural rules. See id.
See also Woodford v. Ngo, 548 U.S. 81, 89–90 (2006); South
v. Licon-Vitale, No. 3:19-cv-1763 (VLB), 2020 WL 3064320,
at *1 (D. Conn. June 9, 2020).
The failure to exhaust administrative remedies “results in
a procedural default.” Rosenthal v. Killian, 667 F. Supp.
2d 364, 366 (S.D.N.Y. 2009); see also Woodford, 548
U.S. at 92 (“In habeas, the sanction for failing to exhaust
properly (preclusion of review in federal court) is given
the separate name of procedural default....”). Procedural
default by a § 2241 petitioner may be excused upon a
showing of cause and prejudice. Carmona, 243 F.3d at
634–35. Specifically, when “legitimate circumstances beyond
the prisoner's control preclude him from fully pursuing his
administrative remedies,” the failure to exhaust may be
excused. Id.; see also Beharry, 329 F.3d at 62.
II. RELEVANT BACKGROUND
The habeas petition and its attachments, which are deemed
integral to the petition, are accepted as true for purposes of
the present motion to dismiss. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Chambers v. Time Warner, Inc., 282 F.3d
147, 152–53 (2d Cir. 2002).
Petitioner arrived at FCI Danbury in April of 2021. Pet.,
ECF No. 1, at 13. He alleges that, upon his arrival there,
he communicated with medical staff about his desire to be
evaluated for ASD and other mental health concerns. Id. He
further alleges that his requests were met with no response,
and that he was told to “be patient” or that he had been
“scheduled” for appointments that never materialized. Id.
*3 Petitioner has attached documents to his petition
that reflect the following series of events concerning his
exhaustion of administrative remedies. Between June 3,
2021, and September 8, 2021, Petitioner submitted multiple
requests for medical and mental health treatment. Ex. A to
Pet., ECF No. 1, at 29–38. In particular, on June 3, 2021,
Petitioner requested an appointment with medical staff to
address various health issues he had been experiencing. Id.
at 31. Then, on June 6, 2021, Petitioner requested assistance
in obtaining an evaluation for ASD, stating that he was
supposed to have received such an evaluation in Puerto Rico,
but the court there denied his request to be evaluated. Id.
at 30. On June 9, 2021, in response to his June 3, 2021,
request, Petitioner was told that he had been scheduled for an
appointment. Id. at 31. On June 10, 2021, Respondent Eftaxas
responded to Petitioner's June 6 inquiry, stating that Petitioner
was on her wait list, but there were many inmates who needed
to be seen. Id. at 30.
Petitioner followed up with various requests for care between
June and September of 2021. On June 23, 2021, Petitioner
wrote to medical staff to ask about his June 3 request for an
appointment with medical staff. Id. at 31. On July 27, 2021,
Petitioner again asked to be tested for ASD for his “own
personal reason[s].” Id. at 32. On August 1, 2021, Petitioner
sent a message to health services describing his concerns and
asking “to talk to someone that [could] help [him].” Id. at
33. On September 8, 2021, Petitioner sent two messages to
health services complaining that he had not yet been seen.
Id. at 34–35. Respondent Eftaxas responded to Petitioner's
July 27 email on September 9, noting that Petitioner's file
included no suggestion that he suffered from ASD and stating
that the facility typically did not test for this disorder without
a documented history of symptoms. Id. at 36. That same
day, Petitioner also received a separate response to his July
27 email; specifically, someone from the psychology staff
wrote to Petitioner, stating that he might be well-qualified
for sex offender programming and asking whether Petitioner
was interested in such programming. Id. at 37. On September
14, 2021, health services responded to one of Petitioner's
September 8 emails; the response stated, “I just placed another
request with the below information.” Id. at 38.
On November 17, 2021, Petitioner filed a BP-8 form, which
is a request for informal resolution. Id. at 39. He complained
that he had not been seen by mental health staff and had
not been evaluated for ASD. Id. On November 22, 2021,
Petitioner wrote a letter to his counselor, stating that he had
spoken with Respondent Eftaxas regarding his grievance, but
a resolution was not accomplished. Id. at 41. In his letter,
Petitioner requested that his BP-8 form be returned to him and
that he be provided a BP-9 form. Id. at 41. On December 7,
2021, Petitioner's correctional counselor marked on the BP-8
form that an informal resolution was accomplished, and the
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form was signed by both the correctional counselor and a unit
manager. Id. at 39. The correctional counselor's comments on
the form referenced a statement from the Chief Psychologist,
which was attached to the form. Id. at 40. In the statement,
the Chief Psychologist wrote that Petitioner was seen upon
intake at FCI Danbury in May of 2021, and was told at that
time that he did not meet the autism criteria and would not be
given a diagnosis. Id. The Chief Psychologist also stated that
Petitioner had been seen on November 22, 2021, in response
to his many requests and was told he did not meet the criteria
for ASD or bipolar disorder. Id.
On January 2, 2022, Petitioner submitted a second request
for a BP-9 form, disputing the correctional counselor's
representation on his BP-8 form that a resolution had been
accomplished. Id. at 44. In messages to his counselor
and Respondent Pullen dated January 15, 2022, Petitioner
recounted that he had requested a BP-9 form several times and
finally received it on January 12, 2022. Id. at 45–46. Petitioner
gave the completed BP-9 form to his counselor on January
13, 2022. Id. at 46. The next day, he received an envelope
returning the BP-9, dated January 13, 2022, along with a note
stating that the deadline for filing a BP-9 is twenty calendar
days following the date on which the basis for the request
occurred. Id.; see id. at 42–43. In the messages he sent to
his counselor and Respondent Pullen on January 15, 2022,
Petitioner claimed that he was unable to timely file his BP-9
because he was not given the form until January 12, 2022.
Id. at 45–46. Petitioner requested an extension of time and
another BP-9 form to complete and file, id., but the record
presently before the Court does not reflect whether he was
provided with another form.
III. LEGAL STANDARD GOVERNING DISMISSAL
UNDER FEDERAL RULE OF CIVIL PROCEDURE
12(b)(6) 3
*4 The Court reviews a motion to dismiss a habeas petition
brought pursuant to Rule 12(b)(6) under the same principles
that apply to a motion to dismiss a civil complaint under the
same rule. Spiegelmann v. Erfe, No. 3:17-CV-2069 (VLB),
2018 WL 1582549, at *1 (D. Conn. Mar. 29, 2018). To
survive a motion to dismiss, the petition must “contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Iqbal, 556 U.S.
at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Although “detailed factual allegations” are not
required, a complaint must offer more than “labels and
conclusions,” “a formulaic recitation of the elements of a
cause of action,” or “naked assertion[s]” devoid of “further
factual enhancement.” Twombly, 550 U.S. at 555–57.
Because Petitioner filed the present petition pro se and
continues to proceed pro se, the Court must construe his
filings “liberally” and interpret them “to raise the strongest
arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam)
(emphasis omitted). Yet, “[d]espite the special solicitude that
the Court must show [Petitioner] out of consideration for
his pro se status, his petition must still include sufficient
factual allegations to meet the standard of facial plausibility to
survive a motion to dismiss under Rule 12(b)(6).” Anderson v.
Williams, No. 3:15-CV-1364 (VAB), 2017 WL 855795, at *6
(D. Conn. Mar. 3, 2017) (internal quotation marks omitted).
In considering a motion to dismiss, the Court typically
may consider only the complaint, or, here, the petition.
The petition, however, “is deemed to include any written
instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference,” as well as any
documents deemed “integral” to the petition. Chambers, 282
F.3d at 152–53 (internal quotation marks omitted). See also
Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119,
122 (2d Cir. 2005) (explaining that, in considering a motion
to dismiss, “the court may consider any written instrument
attached to the complaint as an exhibit or incorporated in the
complaint by reference, as well as documents upon which the
complaint relies and which are integral to the complaint”). To
that end, because the petition attaches and relies on records
relating to Petitioner's exhaustion of remedies, and because
such records are integral to the complaint, the Court will
consider those documents in deciding this motion.
IV. DISCUSSION
Respondents contend that Petitioner failed to properly
exhaust his administrative remedies before commencing this
action. Specifically, Respondents argue that prison records
include no evidence that Petitioner ever filed any BP-9 forms,
let alone any appeals at the BP-10 and BP-11 levels. Petitioner
responds that the exhibits attached to his petition show that he
was unable to pursue his administrative remedies because he
was not provided the necessary forms in a timely manner.
For purposes of the present motion, Petitioner has sufficiently
alleged that legitimate circumstances beyond his control—
particularly, the prison staff's delay in providing Petitioner
with a BP-9 form—precluded him from fully pursuing his
administrative remedies. See Carmona, 243 F.3d at 634–
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35. The Court begins by noting that courts in this Circuit
have recognized that “a denial of grievance forms does
not, in itself, make administrative remedies unavailable.”
Tashbook v. Petrucci, No. 20 Civ. 5318 (KMK)(PED), 2021
WL 8013812, at *4 (S.D.N.Y. Apr. 22, 2021), report and
recommendation adopted, 2022 WL 884974 (S.D.N.Y. Mar.
25, 2022) (quoting Gottesfeld v. Anderson, No. 18 Civ. 10836,
2020 WL 1082590, at *8 (S.D.N.Y. Mar. 6, 2020)). Rather,
even if a correctional facility fails to make grievance forms
available, a prisoner still has an “obligation to undertake
reasonable efforts to properly exhaust.” Id. Here, for the
purpose of withstanding dismissal under Rule 12(b)(6), the
petition and its attachments provide sufficient support for
Petitioner's assertion that he took reasonable efforts to exhaust
his administrative remedies but was unable to do so because
the BOP failed to provide him with the necessary forms.
*5 The materials Petitioner has submitted with his petition
demonstrate that he asked prison staff repeatedly for a BP-9
form, beginning on November 22, 2021, (long before his BP-8
was returned on December 8, 2021) and continuing through
January 12, 2022. After Petitioner was finally provided the
form on January 12, 2022, he submitted it to his counselor,
only to have it returned with a note suggesting that he
had failed to file it within twenty days of the issue it
sought to resolve. 4 Had Petitioner been given the form
when he first requested it, or even a reasonable number of
days thereafter, it likely would have been timely because,
once Petitioner received the form, he acted expeditiously,
returning it within one day. It therefore appears that Petitioner
took reasonable efforts to exhaust his administrative appeals,
but these efforts were, at the very least, hindered—if not
affirmatively thwarted—by the counselor's delay in providing
him with the BP-9 form. Cf. Ross v. Blake, 578 U.S. 632,
644 (2016) (administrative procedure is “unavailable” for
purposes of exhaustion under the PLRA where “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation”); Cruz v. Lee, No. 14 cv 4870 (NSR)(JCM),
2016 WL 1060330, at *5 (S.D.N.Y. Mar. 15, 2016) (finding
that allegations in the complaint might warrant excusing the
plaintiff from exhausting administrative remedies under the
PLRA where the plaintiff alleged that he had been denied
access to grievance procedures despite making reasonable
efforts to exhaust by writing a letter to his counselor, speaking
to a mental health professional, and writing to the prison
superintendent).
For these reasons, Petitioner has demonstrated both good
cause for failure to exhaust and prejudice, as Respondents
are now claiming that he cannot pursue the present petition
because he failed to exhaust. 5 See Spencer v. Warden FPC
Duluth, Civil No. 13-177 (JNE/JJK), 2014 WL 5106741, at
*5 (D. Minn. Oct. 10, 2014) (declining to find, as a matter
of law, that the petitioner had not exhausted administrative
remedies where he was denied informal grievance forms and
formal BOP appeals forms).
The Court is unpersuaded by Respondents’ argument that
exhaustion should not be excused because Petitioner was
required to treat any non-responses as denials and proceed
with the appeals process within the BOP. Here, Petitioner
does not merely allege that he received no response to his
BP-9 form; rather, he provides documentation suggesting that
the BOP returned his BP-9 form as untimely. Contrary to
Respondents’ suggestion, the BOP did not simply fail to
respond to Petitioner's grievance; instead, it issued a response
suggesting that Petitioner was foreclosed from filing any
additional appeals.
*6 While “[e]xhaustion gives an agency an opportunity
to correct its own mistakes with respect to the programs it
administers before it is haled into federal court,” Woodford,
548 U.S. at 89 (internal quotation marks omitted), an inmate
must be given a fair opportunity to avail himself of that
process. Here, it does not appear Petitioner was provided with
such an opportunity because of the actions of institution staff.
Moreover, in this case, the petition suggests that the BOP
was given the opportunity to resolve Petitioner's grievances
because Petitioner made multiple attempts to avail himself of
the grievance process. Accepting the representations in the
petition as true, the BOP simply did not take that opportunity;
instead, it refused to provide Petitioner with access to the
grievance process. Therefore, based on the allegations of the
petition, which the Court must accept as true at this stage,
as well as the materials attached to the petition, dismissal
for failure to exhaust is not warranted. If Respondents
have evidence indicating that excusal of exhaustion is not
warranted, they may submit it along with their response to the
petition.
In sum, because Petitioner may be excused from exhausting
his administrative remedies, Respondents’ motion to dismiss,
which was based solely on Petitioner's alleged failure to
exhaust administrative remedies, is DENIED.
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V. CONCLUSION
Respondents’ motion to dismiss the petition for writ of
habeas corpus, ECF No. 6, is DENIED. By May 15, 2023,
Respondents shall show cause why the Petition should not be
granted.
SO ORDERED at Hartford, Connecticut, this 13th day of
April, 2023.
All Citations
Not Reported in Fed. Supp., 2023 WL 2931585
Footnotes
1 Respondents claim that the PLRA applies to this § 2241 action. See, e.g., ECF No. 6-1 at 7 (“On these
facts, Petitioner has failed to satisfy the PLRA's mandate.”). The Court disagrees. There is no statutory
requirement that an inmate exhaust administrative remedies before filing a habeas petition pursuant to §
2241. See Carmona, 243 F.3d at 634; Cardoza v. Pullen, 3:22-CV-591 (SVN), 2022 WL 3212408, at *4
(D. Conn. Aug. 9, 2022); Lallave v. Martinez, 609 F. Supp. 3d 164, 179 (E.D.N.Y. 2022) (“Section 2241’s
exhaustion requirement is ‘prudential, not statutory.’ ”); United States v. Basciano, 369 F. Supp. 2d 344, 348
(E.D.N.Y. 2005) (finding “the statutory exhaustion requirement set forth under the [PLRA]” inapplicable to
§ 2241 petition); Perez v. Zenk, No. 04-CV-5069 (CBA), 2005 WL 990696, at *2 (E.D.N.Y. Apr. 11, 2005)
(noting that the exhaustion requirement for § 2241 petitions “is not grounded in § 1997e, but rather in the
common law”).
2 Under certain circumstances, where the inmate has demonstrated a situation preventing him from submitting
the request, an extension of the filing time may be allowed. 28 C.F.R. § 542.14(b). Section 542.14 includes
examples of such situations, including an extended period in-transit where the inmate was separated from
needed documents, time when the inmate was physically incapable of preparing the request or appeal,
an unusually long time for informal resolution attempts, or a delayed response to a request for copies of
dispositions under § 542.19. Id.
3 Respondents have moved to dismiss solely under Federal Rule of Civil Procedure 12(b)(1), claiming that the
Court lacks subject matter jurisdiction over this action because Petitioner did not exhaust his administrative
remedies before filing suit. Respondents have not provided any binding precedent to support this view and,
indeed, whether § 2241’s exhaustion requirement is jurisdictional is an “open question.” McDonald v. Sage,
No. 3:20-cv-1737 (SRU), 2022 WL 503925, at *2 (D. Conn. Feb. 18, 2022); Martinez-Brooks v. Easter, 459
F. Supp. 3d 411, 436 n.18 (D. Conn. 2020) (noting that “[i]t is debatable whether the exhaustion requirement
for a [s]ection 2241 habeas petition should be treated as a ‘jurisdictional’ issue rather than as an affirmative
defense”). In light of this uncertainty, the Court will treat the exhaustion of administrative remedies as an
affirmative defense, and will address Respondents’ motion as a motion to dismiss under the Rule 12(b)(6)
standard for failure to state a claim. See McDonald, 2022 WL 503925, at *2 (doing the same).
4 Respondents have submitted a declaration from Cheryl Magnusson, a legal assistant employed by the BOP,
which states that the BOP has no record of Petitioner submitting a BP-9 form related to the issues raised in
the Petition. ECF No. 6-2. Even were the Court to consider the declaration and its attachments in ruling on the
present motion, which it ordinarily would not do when presented with a motion to dismiss under Rule 12(b)
(6), those records do not change the Court's conclusion that Petitioner may be excused from the exhaustion
requirement under the circumstances here. At most, the records appear to suggest that the counselor to
whom Petitioner gave the BP-9 form on January 13, 2022, never officially submitted it.
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5 The Court recognizes that, after Carmona, the Second Circuit laid out four exceptions to the judicial
exhaustion requirement in Beharry, see 329 F.3d at 62, and Petitioner's situation does not necessarily fit
squarely into any of those. Nonetheless, the four exceptions listed in Beharry were drawn from Able v.
United States, 88 F.3d 1280, 1288 (2d Cir. 1996), which predates Carmona, and the Court has found no
binding authority suggesting that the Second Circuit's recognition of the four exceptions in Beharry was meant
to supplant Carmona’s more general cause-and-prejudice standard entirely. In any event, there is ample
precedent from within this Circuit suggesting that, where a petitioner makes reasonable efforts to exhaust his
administrative remedies, but prison officials do not provide him with the necessary forms, exhaustion may be
excused. In light of this case law, and in light of the sufficient allegations of cause and prejudice in the petition
at issue here, the Court finds dismissal based on a failure to exhaust inappropriate at this stage. This holding
is without prejudice to Respondents raising the issue of exhaustion of remedies again, in their response to
the petition, if there is additional information available on this issue at that time.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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