The opinion of the court was delivered by: Hon. Otis D. Wright II United States District Judge
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
On January 14, 2013, petitioner Judy C. Ponceja ("Petitioner"), a federal prisoner*fn1 proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition"). Petitioner challenges his sentence computation. (Pet at 3.) Specifically, Petitioner seeks prior custody sentence credit from January 10, 2007 to October 9, 2009. (Id.)
On February 6, 2013, Respondent filed a Motion to Dismiss the Petition ("Motion"), contending that Petitioner failed to exhaust his administrative remedies with respect to all of his claims.
Petitioner did not file an Opposition to the Motion.*fn2 As detailed below, the Court now recommends that the Petition be dismissed without prejudice.
A. Federal Prisoners are Generally Required to Complete the BOP's Four-Tiered Administrative Remedy Process "Federal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal court." Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per curiam). However, because exhaustion is not a jurisdictional prerequisite, a district court has discretion to excuse "faulty exhaustion and reach the merits" under certain circumstances. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), abrogated on other grounds by Reno v. Kay, 515 U.S. 50 (1995); Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004). For instance, exhaustion may be excused where administrative remedies are inadequate, futile, or where irreparable injury may occur without immediate judicial relief. Laing, 370 F.3d at 1000-1001.
The Federal Bureau of Prisons ("BOP") has established a four-tiered
administrative remedy process, which allows a federal prisoner "to
seek formal review of an issue relating to any aspect of his [or] her
own confinement." 28 C.F.R. § 542.10. A prisoner must first seek to
resolve the issue informally with prison staff. 28 C.F.R. § 542.13. If
dissatisfied, the prisoner can then file a formal administrative
remedy request at the institution of confinement. 28 C.F.R. § 542.14.
If that request is
denied by the warden, the prisoner must file an appeal with the
Regional Director, and ultimately, the General Counsel's Office, in
order to fully exhaust his or her administrative remedies. 28 C.F.R. §
B. BOP Records Establish Petitioner's Failure to Exhaust Here, Petitioner has made no effort to exhaust the BOP's administrative remedy process with respect to any of his claims in the Petition.*fn3 (Schuh Decl., ¶ 7, Ex. C.) In fact, it appears that Petitioner has not filed a single administrative remedy request while incarcerated by the BOP. (Id.)
Furthermore, Petitioner has not shown that exhaustion of the BOP's administrative remedy process will be a futile exercise or will cause Petitioner irreparable harm. While Petitioner's current projected release date is approaching, the BOP's administrative remedy procedures incorporate relatively rapid deadlines for a response at each level of review. See 28 C.F.R. § 542.18 (response by Warden must be made within 20 days, response by Regional Director within 30 days, and response by General Counsel within 40 days). If Petitioner pursues his remedies with alacrity, he should be able to exhaust his administrative remedies before his sentence expires. Indeed, if Petitioner had pursued his administrative remedies before filing the Petition, he likely would have exhausted his remedies by now.
Moreover, permitting Petitioner to proceed on unexhausted claims under these circumstances would encourage prisoners like Petitioner to bypass the administrative remedy procedure and take their claims directly into the courthouse, rather than exhausting, as they should, their administrative remedies in a timely fashion. See Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990). Such an invitation should not be extended where it is not plainly warranted.
Accordingly, because Petitioner has not even attempted to exhaust his administrative remedies, the Petition must ...