ZAMORA v. MARSHALL et al

OCR transcription for search; preserved printed pages are authoritative

Case 3:25-cv-00186-NBF-KAP Documenti1- Filed 11/18/25 Pageiof5

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

SAMIR ZAMORA,
Petitioner :
v. : Case No. 3:25-cv-186-KAP
MICHAEL UNDERWOOD, Warden,
F.C.I. LORETTO, et al.,
Respondents

Report and Recommendation

Recommendation

Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.§
2241(c)(3) at ECF no. 3. No answer is due from the respondent until next month, and
because the record is clear I recommend in advance of any response that the petition be
denied for lack of exhaustion.

Report

Zamora is an inmate at F.C.I. Loretto because on February 16, 2018 the Honorable
Mary Scriven of the United States District Court for the Middle District of Florida imposed
a sentence on him of 240 months imprisonment followed by a 10 year term of supervised
release, after Zamora’s guilty plea to conspiracy to possess five or more kilograms of
cocaine while on board a vessel subject to the jurisdiction of the United States in violation
of 18 U.S.C.§ 960(b)(1)(B)(ii). United States v. Zamora, Case No. 8:17-cr-448-T-35CPT
(M.D.Fla. Tampa Division). Zamora had a prior conviction for a previous similar
offense in United States v. Zamora, Case No. 8:10-cr-479-T-33TGW (M.D.Fla. Tampa .
Division). The 2018 sentence was imposed to run concurrently with a supervised
release violation sentence imposed on November 2, 2017 by the Honorable Virginia
Covington in that earlier matter.

The factual basis for the plea is set out in the plea agreement at ECF no. 41 on
the public docket: A Coast Guard vessel stopped a go-fast boat in international waters
on September 2, 2017 and recovered 1197 kilograms of cocaine in 25 bales jettisoned by
the crew, of which Zamora was a member. Zamora and the other members of the crew
were taken to the Middle District of Florida for prosecution.

As the Court is aware (not least because of the close similarity of this matter to
Montano v. Underwood, Case No. 3:24-cv-143—NBF-KAP (W.D.Pa. September 30,
2025) adopting report and recommendation at ECF no. 5 (February 12, 2025); see also
Palma-Meza v. Underwood, Case No. 3:23-cv-226-SLH-KAP (W.D.Pa.), report and

I

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 3:25-cv-00186-NBF-KAP Documenti1- Filed 11/18/25 Page 2of5

recommendation at ECF no. 14 (January 29, 2024), dismissed as moot (April 15,
2025)) someone at Loretto is preparing form petitions for habeas corpus to be used by
foreign nationals serving federal sentences at F.C.I. Loretto. The forms seek a writ
directing the Bureau of Prisons to apply to their sentences earned time credits (ETC) for
participation in programming under the provisions of the First Step Act of 2018,
Pub.L.No. 115-391, 132 Stat. 5208 (December 21, 2018).

The First Step Act amended 18 U.S.C.§ 3621 to require the Bureau of Prisons to
create or expand programs that will reduce the risk of recidivism by persons convicted of
federal offenses, and to award credits to most -but not all- inmates participating in these
programs that can be applied toward time in prerelease custody or supervised release.
Not all inmates who earn ETCs can have those credits applied to their sentences. Congress
has precluded noncitizen inmates with a final order of removal from having ETCs applied
to their sentences under the First Step Act in 18 U.S.C.§ 3632(d)(4)(E), which states:

(E) DEPORTABLE PRISONERS INELIGIBLE TO APPLY TIME CREDITS-

(i)In General- A prisoner is ineligible to apply time credits under
subparagraph

(C) ifthe prisoner is subject of a final order of removal under any provision
of the immigration laws (as such term is defined in Section 101(a)(17) of the
Immigration and Nationality Act (8 U.S.C. § 1101(a)(17)).

The First Step Act expressly and unambiguously makes inmates with final orders of
removal ineligible to have ETCs applied. Zamora or his scribe acknowledges that Zamora
has an immigration detainer lodged against him that is based on the existence of a final
order of removal. Zamora and other petitioners using the template nevertheless assert
that there can be no valid “final order of removal” because according to them the only way
to have a final order of removal is under 8 C.F.R. § 1241.1, which contemplates an order
of removal be made by an immigration judge after a hearing. Zamora alleges, as do the
other petitioners, that he has never seen an immigration judge.

Pursuant to 18 U.S.C. § 3632(d)(4)(E)@), “A prisoner is ineligible to apply time
credits .. . if the prisoner is the subject of a final order of removal under any provision
of the immigration laws.” (my emphasis). That would include a final order of removal
under Section 235(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(),
which states:

If an immigration officer determines that an alien .. . who is arriving in the
United States or is described in clause (iii) is inadmissible under . . . 1182(a)(7) of
this title, the officer shall order the alien removed from the United States without
further hearing or review.” 8 U.S.C. § 1225(b)(1)(A)(i).

An alien brought into the United States solely for the purpose of being criminally

y

Case 3:25-cv-00186-NBF-KAP Documenti1- Filed 11/18/25 Page 3of5

prosecuted for trafficking in controlled substances is an inadmissible alien, and therefore
properly subject to a final order of removal without a hearing before an immigration
judge. See 8 U.S.C. § 1225(b)(1)(C)(expedited removal orders not subject to
administrative appeal); 8 C.F.R. § 235.3(b)(2)Gi)(except in limited circumstances,
persons subject to expedited removal are “not entitled to a hearing before an immigration
judge ... or to an appeal of the expedited removal order to the Board of Immigration
Appeals.”); 8 C.F.R. § 235.3(b)(7) (expedited removal orders final once reviewed by a
supervisor).

Locally, Chief Judge Hornak has recently held that the argument by Zamora and
similar petitioners that a “Notice and Order of Expedited Removal” under Section
235(b)(1) is not a valid final order of removal because it was signed by an immigration
officer instead of an immigration judge is without merit since 8 U.S.C. §1225(b)(1)(A)(i)
expressly provides that an immigration officer, not an immigration judge, shall issue
orders of removal under that section. Said v. Underwood, No. 3:23-cv-164, 2025 WL
90145 at *2 (W.D. Pa. Jan. 14, 2025), adopting in relevant part report and
recommendation at ECF no. 14 (May 21, 2024). This is the approach almost uniformly
taken by courts. See Ordonez Rivera v. Emmerich, 2025 WL 1859161, at *2 (W.D. Wis.
June 12, 2025)(collecting cases).

Since the burden of proof is on Zamora to show an entitlement to relief, as a matter
of logic his petition could simply be denied at this point for lack of a valid premise. Given
the history of Zamora’s offense it is almost certain as a factual matter that Zamora has
been finally adjudicated as inadmissible, and possibly Zamora is also inadmissible
because he was probably removed at some point after his first and before his second
conviction. But I recommend that as a matter of judicial economy the court dismiss the
petition for lack of exhaustion rather than act as a factfinding commission for Zamora.
The person generating these form petitions uses a template exhaustion of remedies
procedure that is completely without merit. The overall time spent by the court in
reviewing these petitions will be reduced if it requires petitioners to exhaust their
administrative remedies before filing a habeas petition. That is especially true in Zamora’s
case since his release date is not until 2035 and Zamora can easily exhaust his
administrative remedies long before the application of ETCs would have any real-world
effect on him.

In general, an inmate who seeks habeas relief from actions by the Bureau of Prisons
affecting the execution of a federal sentence, whether a disciplinary sanction, credit for
prior custody decision, sentence computation, or length of placement in a residential re-
entry center, must exhaust available administrative remedies first, see 28 C.F.R.§ 542.10-
19, unless the matter involves only a question of law without the need for development of
a factual record. See Vasquez v. Strada, 684 F.3d 431, 433-34 (3d Cir.2012), citing

ma
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Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir.1981). As the Court of Appeals has been
saying for four decades, use of the administrative process not only facilitates judicial
review by allowing the Bureau of Prisons to develop a factual record and explain its
decision, but also conserves judicial resources because in at least some cases the inmate
obtains relief in the administrative process. See Barksdale v. Sing Sing, 645 Fed. Appx. 107
(3d Cir. 2016); Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir.1996); Arias v.
United States Parole Commission, 648 F.2d 196 (3d Cir.1981); Lindsay v. Williamson, 271
Fed.Appx. 158, 160 (3d Cir. 2008) (affirming sua sponte dismissal of 28 U.S.C. § 2241
petition for failure to exhaust administrative remedies).

The BOP has a three-tiered (or four-tiered if the informal remedy is counted)
system through which a federal prisoner may file a grievance about any conditions of
imprisonment, including computation of sentence. 28 C.F.R.8§ 542.10-542.19. An inmate
must first use a form BP-8 to “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.” 28 C.F.R.§ 542.13(a). An inmate who cannot resolve the
problem informally must file “a formal written Administrative Remedy Request, on a
form BP-9, [within] 20 calendar days following the date on which the basis for the
Request occurred.” 28 C.F.R.§542.14(a). The responding authority is the warden of the
inmate’s institution, who has 20 days to respond. 28 C.F.R.§ 542.18. An inmate not
satisfied with the warden’s response must appeal that response. The Regional Director for
the Northeast Region (NERO) is the relevant recipient of an appeal from Loretto. The
appeal, on a form BP-10, must be filed within 20 days of the warden’s signed BP-9
response. 28 C.F.R.§ 542.15(a). If the inmate is not satisfied with NERO’s response, the
final step is by filing a form BP-11 to the BOP’s General Counsel within 30 days of the
Regional Director’s response. See 28 C.F.R.8§ 542.18.

Zamora filed his petition with a date of June 18, 2025, expressly (see Affidavit {2)
asserting that he had mailed his BP-10 only two days earlier on June 16, 2025. He clearly
did not complete the Bureau of Prisons’ remedy procedures. Zamora, again per template,
also asserts that he sent two unsigned letters in May and June 2025 inquiring about his
final order of removal to the Pittsburgh office of Immigration and Customs Enforcement.
See Petition Exhibit 8 and Exhibit 9. Those letters would not satisfy the exhaustion of the
Bureau of Prisons’ remedy procedure in any case.

Since Zamora’s lack of exhaustion is unmistakable his scribe invokes the usual
reasons for excusing administrative exhaustion, and as has been recent practice also
makes a citation to Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). That case
is irrelevant because Zamora’s ineligibility is based on an express statutory exclusion not
an administrative interpretation of an ambiguous provision. The stock “futility excuses
exhaustion” and “exhaustion is not needed for matters of law” arguments are also

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meritless because the existence or nonexistence of a final order of removal for Zamora is
a matter of fact that the administrative process is able to resolve and provide a remedy
for, as many cases in this court have demonstrated. A cottage industry in habeas petitions
may profit Zamora’s scribe, but it wastes judicial resources and does not even benefit
Zamora to take Zamora’s dispute to court prematurely. In the end, as the Supreme Court
has observed, requiring exhaustion is important both for agencies and courts:

Because exhaustion requirements are designed to deal with parties who do not want
to exhaust, administrative law creates an incentive for these parties to do what they
would otherwise prefer not to do, namely, to give the agency a fair and full
opportunity to adjudicate their claims. Administrative law does this by requiring
proper exhaustion of administrative remedies, which “means using all steps that the
agency holds out, and doing so properly (so that the agency addresses the issues on
the merits).”

Woodford v. Ngo, 548 U.S. 81, 90 (2006). See also id., 548 U.S. at 92: “In practical terms,
the law of habeas, like administrative law, requires proper exhaustion[.]”

Zamora’s petition is unexhausted and should be denied without prejudice as
unexhausted.

Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have
fourteen days to file written objections to this Report and Recommendation. The parties
are advised that in the absence of timely and specific objections any appeal would be
severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93,
100 (3d Cir.2017)(describing standard of appellate review when no timely and specific
objections are filed as limited to review for plain error). 1

»

:
e

DATE: November 18, 2025

Keith A. Pesto,
United States Magistrate Judge

Notice by ECF to counsel of record and by U.S. Mail to:

Samir Zamora, Reg. No. 53787-018
F.C.I. Loretto

P.O. Box 1000

Cresson, PA 16630