Carroll v. FCI Berlin, Warden

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Steve McGary Carroll
v. 	Case No. 21-cv-139-PB
Warden of FCI Berlin
Robert Hazlewood
REPORT AND RECOMMENDATION
The respondent, the Warden of the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”), has filed a
dispositive motion (Doc. No. 6), asking the court to dismiss,
without prejudice, 	Steve McGary Carroll’s 28 U.S.C. § 2241
petition for a writ of habeas corpus (Doc. No. 1) because
Carroll has not exhausted his administrative remedies. 	Carroll,
who seeks an immediate release from custody under the First Step
Act, Pub. L. No. 115-015, 132 Stat. 5194 (2018), asserts that
his case is excepted from the exhaustion requirement because his
case purportedly involves purely legal questions. 	The Warden,
in turn, maintains that there is no such recognized exhaustion
exception, and that Carroll’s allegations fail to show that
administrative exhaustion would otherwise be futile. 	As
discussed below, the district judge should grant the Warden’s
motion and dismiss Carroll’s § 2241 petition without prejudice
to refiling after he exhausts his administrative remedies.
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Background
In December 2018, Congress passed the First Step Act to
address the reentry of incarcerated individuals and amend the
statute governing the calculation of federal sentences. 	Among
its provisions, the Act requires the Attorney General to develop
a “risk and needs assessment system” that can be used to
determine, among other things, the recidivism risk of each
incarcerated individual and the type and amount of evidence-
based recidivism reduction (“EBRR”) programming that is
appropriate for each individual. 	See 18 U.S.C. § 3632(a).
Additionally, the Act directs the BOP to “implement and complete
an initial intake risk and needs assessment for each prisoner”
and “begin to assign prisoners to appropriate evidence-based
recidivism reduction programs based on that determination”
within a certain time frame. 	Id. § 3621(h)(1)(A). 	To encourage
inmates to participate in EBRR programs and programs and
productive activities, the Act creates a system of incentives,
including “time credits” that can be applied toward pre-release
custody or supervised released. 	See id. § 3632(d). 	Programs an
inmate has completed before the date when the First Step Act was
enacted (December 21, 2018), are not counted in calculating an
inmate’s earned time credits. 	18 U.S.C. § 3632(d)(4)(B).
Carroll contends that he is entitled to 430 days of earned
time credits under the First Step Act based upon his completion
of EBRR programs. 	Pet. (Doc. No. 1, at 10). 	Carroll alleges
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that, even though he has participated in certain coursework, the
BOP has repeatedly refused to award him his earned time credits.
Id. at 13. 	Carroll also asserts that if he were awarded the
amount of earned time credits he asserts he is due, he would be
subject to immediate release from custody. 1 	Id.
Carroll’s petition includes as an exhibit a list of courses
he completed while in BOP custody prior to January 2021. 	See
Doc. No. 1-1, at 3. 	Only six of those classes appear to have
been completed after December 21, 2018. 	The government has
argued in its dispositive motion (Doc. No. 6) that the total
number of days of coursework in those six classes does not
approach a number that could yield 430 days of earned time
credit, and that Carroll’s failure to exhaust the administrative
remedy process before seeking habeas relief in this court has
prevented the BOP from making a final decision on Carroll’s
request for earned time credits.
Applicable Legal Standard
In an Order issued this date, see Doc. No. 9, the court
converts the Warden’s dispositive motion (Doc. No. 6) into one
for summary judgment. 	In considering a motion for summary
judgment under Federal Rule of Civil Procedure 56, the court
“read[s] the facts in the light most favorable to the non-moving
1 Exhibits attached to the Petition, as well as the BOP Inmate
Locator, project Carroll’s release date to be August 22, 2022, a
date 430 days after June 18, 2021. 	See BOP Inmate Locator,
https://www.bop.gov/inmateloc/ (last accessed May 20, 2021).
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party” and draws “all reasonable inferences in [that party’s]
favor.” 	Lachance v. Town of Charlton, 990 F.3d 14 (1st Cir.
2021). 	“Summary judgment is appropriate when the record shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” 	Walker v.
President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir.
2016) (citations and internal quotation marks
omitted); see also Fed. R. Civ. P. 56.
Exhaustion Requirement
The Warden contends that Carroll’s petition should be
dismissed because Carroll has failed to properly exhaust his
administrative remedies and does not fall into a recognized
exception to the exhaustion requirement. 	As discussed below,
the district judge should grant the Warden’s motion and dismiss
Carroll’s petition without prejudice, as Carroll has failed to
show that his claim is excepted from the administrative
exhaustion requirement.
Generally, federal inmates must first exhaust the
administrative remedies available to them before seeking habeas
relief in federal court through a petition under § 2241. 	See
Idada v. Spaulding, 456 F. Supp. 3d 294, 297 (D. Mass. 2020)
(recognizing requirement arises under common law). 	This
administrative exhaustion requirement generally serves twin
purposes: “‘promoting judicial efficiency’” and “‘protecting
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administrative agency authority.’” 	Anversa v. Partners
Healthcare Sys., Inc., 835 F.3d 167, 175 (1st Cir. 2016)
(quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)).
“Where, as here,” an inmate’s obligation to exhaust claims
arises under common law, not a mandate of Congress, “federal
courts have some leeway” to relax this requirement. 	Id. 	But in
considering whether to exercise this leeway, “‘courts must
balance the interest of the individual in retaining prompt
access to a federal judicial forum against countervailing
institutional interests favoring exhaustion.’” 	Id. at 176-77
(quoting McCarthy, 503 U.S. at 146). 	Courts have recognized
exceptions to the § 2241 exhaustion requirement when exhausting
administrative appeals “would be futile, or [when] the appeals
process [would] be inadequate to prevent irreparable harm.”
Rodriguez-Rosa v. Spaulding, No. CV 19-11984-MBB, 2020 WL
2543239, at *10 n.21, 2020 U.S. Dist. LEXIS 88044, at *27 n.21
(D. Mass. May 19, 2020) (internal quotation marks and citation
omitted).
Here, Carroll does not dispute the Warden’s representation
that he filed no formal grievances for his First Step Act claim
prior to filing the instant habeas petition. 	See also Magnusson
Decl. (Doc. No. 6-1, at ¶¶ 8-9) (outlining the BOP’s four-step
administrative remedy process); Admin. Remedy Generalized
Retrieval History (Doc. No. 6-2, at 8-12). 	Rather, citing
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Goodman v. Ortiz, Civ. No. 20-7582 (RMB), 2020 WL 5015613,
at *2, 2020 U.S. Dist. LEXIS 153874, at *5-6 (D.N.J. Aug. 25,
2020), Carroll argues that this court should find that the
exhaustion requirement does not apply in this case as his habeas
claims turn only on “legal questions.” 	Carroll Obj. (Doc. No.
7, at 1); see also Pet. (Doc. No. 1, at 2, 15). 	In his view,
“[t]he issues in Goodman v. Ortiz are exactly on point with the
[exhaustion and merits] issues before the Court in this case.”
Carroll Obj. (Doc. No. 7, at 1). 	Additionally, he asserts that
“the BOP has made their position clear that they will not award
any credits” to Carroll, just as the BOP did in Goodman. 	Id.
The court disagrees.
Despite Carroll’s assertion, Goodman did not recognize an
exception to the administrative exhaustion requirement for
habeas claims raising purely legal questions. 	In Goodman, an
inmate alleged that the BOP had failed to give him earned time
credits under the First Step Act for certain EBRR training
programs. 	2020 WL 5015613, at *1. 	Unlike the case here, the
BOP in Goodman did “not dispute that [the inmate] had earned the
time credits.” 	Id. at *2. 	The BOP nevertheless opposed
granting the inmate time credits, arguing that it was not
required to award any earned credits under the First Step Act
“until the two-year phase-in period under the statute ha[d]
expired.” 	Id. 	The court found that the inmate’s petition was
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exempt from the general exhaustion requirement because it
presented “a narrow dispute of statutory construction” — a
category of habeas claims exempt from the exhaustion requirement
in the Third Circuit. 	Id. at *3 (citing Coleman v. U.S. Parole
Comm'n, 644 F. App'x 159, 162 (3d Cir. 2016)). 	Moreover, the
court found that exhaustion would be futile, as the BOP’s
preferred construction of the First Step Act barring the reward
of any time credits was “contrary to the statutory language.”
The court therefore granted habeas relief. 	Id. at *3, 5.
Carroll’s habeas claim, by comparison, goes beyond a
“narrow dispute” regarding the BOP’s construction of the First
Step Act’s text. 	Unlike in Goodman, the parties in this case
disagree as to whether Carroll has in fact completed the
quantity of coursework that Carroll claims would entitle him to
time credits under the First Step Act, given the dates of
Carroll’s classes and his BOP-assigned risk-of-recidivism
designation. 	Additionally, Carroll has failed to demonstrate
that administrative exhaustion would be futile based on BOP’s
policy for awarding time credits. 	Indeed, because Carroll filed
his petition without first filing a grievance, there is no
record as to the BOP’s position on why certain coursework
completed by Carroll may or may not qualify for time credit,
given Carroll’s specific circumstances.
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Resolution of these factual questions by the BOP in the
first instance would serve the twin purposes of promoting
judicial efficiency and protecting administrative agency
authority by giving the BOP the opportunity to apply its
expertise, correct possible errors, and create a useful record
before this court considers the merits of Carroll’s habeas
claims. 	See Anversa, 835 F.3d at 175–76. 	Further, Carroll has
failed to allege any other facts that would suggest that his
§ 2241 claims fall under any other recognized exception to the
exhaustion requirement. 	See Cook v. Spaulding, 433 F. Supp. 3d
54, 58 (D. Mass. 2020) (dismissing habeas petition for failure
to exhaust, even where granting of petition would result in
immediate release of an inmate). 	Accordingly, the district
judge should dismiss Carroll’s § 2241 petition without prejudice
to his ability to refile a § 2241 petition once he properly
exhausts the administrative remedies made available by the BOP.
Conclusion
For the reasons stated above, the district judge should
grant the Warden’s motion (Doc. No. 6) and dismiss Carroll’s
§ 2241 petition (Doc. No. 1) without prejudice to his ability to
refile once he exhausts his administrative remedies. 	Any
objections to this Report and Recommendation must be filed
within thirty days of receipt of this notice. 	The thirty-day
period may be extended upon motion. 	Failure to file objections
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within the specified time waives the right to appeal the
district court’s order. 	See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
May 26, 2021
cc: 	Steve McGary Carroll, pro se
Seth R. Aframe, Esq.
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