United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS
SHEILA
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Petitioner
is a federal prisoner proceeding pro se and in
forma pauperis with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
On
January 6, 2020, Petitioner filed the instant petition. He is
in the custody of the Bureau of Prisons (“BOP”)
at the Taft Correctional Institution located in Taft,
California. Petitioner challenges the computation of his
federal sentence by the BOP. He claims the BOP wrongfully
found him ineligible to receive extra time credits under the
First Step Act. The petition is unexhausted. Therefore, the
Court will recommend the petition be DISMISSED without
prejudice.
DISCUSSION
I.
Exhaustion
Before
filing a petition for writ of habeas corpus, a federal
prisoner challenging any circumstance of imprisonment must
first exhaust all administrative remedies. Martinez v.
Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han
Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.
1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.
1983). The requirement that federal prisoners exhaust
administrative remedies before filing a habeas corpus
petition was judicially created; it is not a statutory
requirement. Brown v. Rison, 895 F.2d 533, 535 (9th
Cir. 1990). Thus, “because exhaustion is not required
by statute, it is not jurisdictional.” Id. If
Petitioner has not properly exhausted his claims, the
district court, in its discretion, may either “excuse
the faulty exhaustion and reach the merits or require the
petitioner to exhaust his administrative remedies before
proceeding in court.”
The
first step in seeking administrative remedies is a request
for informal resolution. 28 C.F.R. § 542.13. When
informal resolution procedures fail to achieve sufficient
results, the BOP makes available to inmates a formal
three-level administrative remedy process: (1) a Request for
Administrative Remedy (“BP-9”) filed at the
institution where the inmate is incarcerated; (2) a Regional
Administrative Remedy Appeal (“BP-10”) filed at
the Regional Office for the geographic region in which the
inmate's institution is located; and (3) a Central Office
Administrative Remedy Appeal (“BP-11”) filed with
the Office of General Counsel. 28 C.F.R. § 542.10 et
seq.
According
to the petition and attached exhibits, Petitioner submitted a
BP-9 “Request for Administrative Remedy” on
December 11, 2019. (Doc. 1 at 11.) Petitioner indicates the
Warden denied the request on December 17, 2019. (Doc. 1 at
4.) It appears Petitioner has not sought further relief by
filing a BP-10 “Regional Administrative Remedy Appeal
or a BP-11 “Central Office Administrative Remedy
Appeal.” Therefore, the claims have not been
administratively exhausted.
Petitioner
claims exhaustion should be waived for futility because he is
challenging an established BOP policy. This is pure
speculation. It is an open question whether administrative
appeals at higher levels will result in the same
determination. In addition, time is not a factor since
Petitioner's projected release date is August 22, 2022.
By Petitioner's calculations, even crediting his sentence
with the additional time credits will result in a projected
release date of June, 2021. (Doc. 1 at 3.)
Although
the exhaustion requirement is subject to waiver in §
2241 cases “it is not lightly to be disregarded.”
Murillo v. Mathews, 588 F.2d 759, 762, n.8 (9th Cir.
1978) (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 v. Ashcroft,
370 F.3d 994, 1000 (9th Cir. 2004) (internal quotation marks
omitted). In this case, it is clear that Petitioner has
deliberately bypassed the administrative review process. Such
action should not be condoned. The Court finds the petition
should be dismissed for lack of exhaustion.
RECOMMENDATION
Accordingly,
the Court RECOMMENDS that the petition for writ of habeas
corpus be DISMISSED without prejudice for failure to exhaust
administrative remedies.
This
Findings and Recommendation is submitted to the United States
District Court Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of
the Local Rules of Practice for the United States District
Court, Eastern District of California. Within twenty-one (21)
days after being served with a copy, Petitioner may file
written objections with the Court. Such a document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendation.” The Court will then
review the Magistrate Judge's ruling pursuant to 28
U.S.C. § 636 (b)(1)(C). Petitioner is advised ...