Cantu v. Warden, SCP Three Rivers

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
HOMERO REY CANTU,
Petitioner,
VS.
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§
§
§
§
§
§
CIVIL ACTION NO. 2:25-CV-00070
WARDEN, SCP THREE RIVERS
MEMORANDUM AND RECOMMENDATION
Petitioner Homero Ray Cantu filed this petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241, alleging the Federal Bureau of Prisons (“BOP”) has miscalculated his
sentencing credit under the First Step Act (“FSA”). (D.E. 1).1 He requests immediate
release to residential reentry center or to home confinement. (D.E. 1). On May 15, 2025,
Respondent filed a Motion for Summary Judgment, asserting Petitioner has failed to fully
exhaust his administrative remedies prior to filing his federal petition. (D.E. 14). Although
Petitioner requested and was given additional time to file a response, he has failed to do so
which, pursuant to the local rules, is taken as a representation of no opposition to the
Motion. Reviewing the Federal Bureau of Prisons Inmate Locator website, Petitioner is
1The FSA provides, among other things, for a system allowing eligible prisoners to earn sentence
time credits toward time in pre-release custody or supervised release for successfully completing
recidivism reduction programming or productive activities. 18 U.S.C. § 3632(d)(4)(A). An inmate
can earn 10 or 15 days off a sentence for every 30 days of participation in the program, depending
on recidivism risk. 18 U.S.C. § 3632(d)(4)(A)(i),(ii). The maximum credit time an inmate can
earn toward early transfer to supervised release is 365 days. 18 U.S.C. § 3624(g)(3). Any credit
beyond 365 days may be applied by the BOP to a prisoner’s eligibility date for pre-release custody,
such as a residential reentry center or home confinement. 18 U.S.C. § 3632(d)(4)(C); 18 U.S.C. §
3624(g)(2).
United States District Court
Southern District of Texas
ENTERED
January 09, 2026
Nathan Ochsner, Clerk
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now in the custody of Residential Reentry Management (“RRM”) San Antonio with a
release date of October 29, 2029. https://www.bop.gov/locations/ccm/csa/ (last visited
January 9, 2026). The Clerk of Court is DIRECTED to update Petitioner’s address
accordingly. Petitioner is advised it is his responsibility to keep the Court apprised of his
current mailing address while this case is pending.
After consideration, the undersigned RECOMMENDS Respondent’s Motion be
GRANTED (D.E. 14) and this petition for writ of habeas corpus be DISMISSED as moot
as Petitioner has now received the relief requested. Alternatively, the undersigned
RECOMMENDS Petitioner has failed to exhaust his administrative remedies prior to
filing this petition and this case be DISMISSED.
I. JURISDICTION
Section 2241 petitions must be filed in the district where the prisoner is incarcerated.
Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (citations omitted). At the time of filing,
Petitioner was incarcerated in Three Rivers, Texas and therefore, jurisdiction is proper in
this Court. 28 U.S.C. § 124(b)(6); see McClure v. Hopper, 577 F.2d. 938, 939-40 (5th Cir.
1978) (explaining that jurisdiction attaches upon the initial filing for habeas corpus relief,
regardless of petitioner’s transfer or custodial change) (citations omitted). This case has
been referred to the undersigned pursuant to 28 U.S.C. § 636.
II. BACKGROUND
In March 2008, Petitioner was convicted in the United States District Court for the
Southern District of Texas of conspiracy to possess with the intent to distribute more than
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100 kilograms of marijuana, conspiracy to launder monetary instruments and providing
false information on an application for a loan. (D.E. 13-1). He was sentenced to 325
months incarceration. Id. In the pending petition, Petitioner asserts the sentencing credits
he has accrued under the FSA have been miscalculated and he is entitled to immediate
release to residential reentry center or to home confinement. (D.E. 1). As discussed above,
Plaintiff is now listed as in the custody of RRM San Antonio.
III. SUMMARY JUDGMENT
In deciding a motion for summary judgment, the district court must determine there
is no genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56. Generally, Rule 56 applies to federal habeas corpus
cases. Clark v. Johnson, 202 F.3d 760, 764-65 (5th Cir. 2000).
Once the movant presents a properly supported motion for summary judgment the
burden shifts to the non-movant to present significant evidence of the existence of a
genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000) (citation omitted). Considering these standards, the undersigned has reviewed
Petitioner’s claims and Respondent’s Motion.
IV. DISCUSSION
Petitioner has now received the relief he was seeking in his petition as he is in the
custody of RRM San Antonio and, accordingly, his grounds for relief in this action are
moot. His petition no longer presents a live controversy. Powell v. McCormack, 395 U.S.
486, 496 (1969) (A case becomes moot “when the issues presented are no longer ‘live’”);
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American Med. Ass’n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988) (“If a dispute has been
resolved or if it has evanesced because of changed circumstances, including the passage of
time, it is considered moot.”) (citation omitted); Escobar v. Barr, 824 F. App’x 300, 300-
301 (5th Cir. 2020) (“If, during the pendency of litigation, the complaining party receives
the relief he originally sought to obtain in court, the action must be dismissed for lack of
subject-matter jurisdiction.”) (citations omitted). Therefore, the undersigned recommends
Respondent’s Motion for Summary Judgment be granted and this case be dismissed as
moot.2
Additionally, even if Petitioner were to assert he has not received the relief
requested, he failed to exhaust his administrative remedies before seeking habeas relief.
Fillingham v. U.S., 867 F.3d 531, 535 (5th Cir. 2017) (“[A] federal prisoner filing a § 2241
petition must first pursue all available administrative remedies.”) (citation omitted). The
administrative remedy procedure for federal prisoners is provided at 28 C.F.R §§ 542.10
to 542.19. Under this administrative procedure, if informal resolution fails, the inmate
must pursue a three-level process within the prescribed time intervals. Typically, the
2George Hernandez, a Case Manager for the BOP, avers Petitioner “was reviewed for RRC
placement February 16, 2025” and was waiting for pre-clearance to be completed by U.S.
Probation and would then be referred to the RRM for final approval. (D.E. 13-4). His
recommended placement date for Petitioner was December 18, 2025, although the RRM would
“make the final determination.” (D.E. 13-4, Page 2). Petitioner is now listed as in the custody of
RRM San Antonio, as discussed above. Mr. Hernandez also averred the time credit assessment
form was recently changed to also include conditional placement dates and conditional transition
to community dates, to be used only for planning purposes as stated on the form, as they are
conditional depending on how much time an inmate accrues. (D.E. 13-4). He avers “[t]hese dates
have caused mass confusion for the inmate population” and he has spoken with Petitioner several
times, explaining how placement dates to a residential reentry center (halfway house) are
calculated. (D.E. 13-4).
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inmate must file an appeal to the Warden with a Request for Administrative Remedy
commonly referred to as a BP-9; then to the Regional Director with a Regional
Administrative Remedy Appeal commonly referred to as a BP-10; and finally to the Office
of the General Counsel with a Central Office Administrative Remedy Appeal commonly
referred to as a BP-11. 28 C.F.R. §§ 542.13 to 542.15. Administrative remedies have not
been exhausted until the inmate’s claim has been filed at all levels and has been denied at
all levels. Gutierrez v. Hijar, No. EP-22-CV-446-FM, 2023 WL 311913, at *1-3 (W.D.
Tex. Jan. 18, 2023) (citations omitted) (Federal prisoner “may seek relief in federal court
only after he has exhausted all levels of the administrative review process.”) While there
are exceptions to the exhaustion requirement which may be appropriate “where the
available administrative remedies either are unavailable or wholly inappropriate to the
relief sought, or where the attempt to exhaust such remedies would itself be a patently futile
court of action,” such exceptions apply only in “extraordinary circumstances” and a
petitioner bears the burden of demonstrating such circumstances. Id. (citing Fuller v. Rich,
11 F.3d 61, 62 (5th Cir. 1994)).
Here, Petitioner failed to file a BP-11 prior to filing his current petition. (D.E. 13-
2; D.E. 13-3; D.E. 13-4 and D.E. 13-5); Atkinson v. Hawkins, No. H-22-2652, 2023 WL
2227717, at *2-3 (S.D. Tex. Feb. 24, 2023) (“The Fifth Circuit has stated that post-filing
administrative appeals do not satisfy the exhaustion requirement.”) (citation omitted).
While Petitioner argues in his petition that “[f]urther or new pursuit of an administrative
remedy would be futile as I have currently (2-15-25) been held 19 months past my
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conditional transition to community date of 7-27-24,” this argument is without merit. (D.E.
1, Page 3); Jones v. Garrido, No. 22-11103, 2023 WL 4763365, at *1 (5th Cir. July 26,
2023) (Petitioner’s “argument that exhaustion was futile because his halfway house
placement date would have passed before he could exhaust his administrative remedies is
unavailing” as he “fails to show he could not have completed the process prior to the
original transfer date to a halfway house or explain why he could not have pursued his
distinct claim for restoration of good time credits even after the transfer.”) Again,
Petitioner has failed to respond to the pending Motion and has therefore, failed to dispute
this argument or to prove he exhausted his administrative remedies. Accordingly, the
undersigned also recommends Respondent is entitled to summary judgment because
Petitioner has failed to properly exhaust his administrative remedies and has not
demonstrated any extraordinary circumstances exist excusing this failure. Atkinson, 2023
WL 2227717, at *2-3.
V. RECOMMENDATION
For the reasons stated above, the undersigned RECOMMENDS Respondent’s
Motion be GRANTED (D.E. 14) and this case be DISMISSED as moot or, alternatively,
for failure to exhaust.
Respectfully submitted on January 9, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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