United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDONALD, Magistrate Judge.
matter is before the court on the respondent's motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
and (6) or, in the alternative, for summary judgment pursuant
to Rule 56 (doc. 11). The petitioner, a federal prisoner
proceeding pro se, seeks habeas corpus relief
pursuant to Title 28, United States Code, Section 2241.
to the provisions of Title 28, United States Code, Section
636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(c)(D.S.C.),
this magistrate judge is authorized to review petitions for
relief and submit findings and recommendations to the
respondent filed the motion on November 10, 2015 (doc. 11).
On November 12, 2015, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner
was advised of the motion to dismiss and summary judgment
procedures and the possible consequences if he failed to
adequately respond to the motion (doc. 12). On December 10,
2015, the petitioner filed a response in opposition to the
motion (doc. 14), and the respondent filed a reply on
December 21, 2015 (doc. 16).
petitioner is an inmate currently incarcerated at the Federal
Correctional Institution ("FCI") in Bennettsville,
South Carolina. On March 27, 2009, the petitioner was
arrested by federal authorities in the Commonwealth of Puerto
Rico, for illegal re-entry after deportation (doc. 11-1,
Roush decl. Â¶ 4 & att. B). On June 15, 2009, the petitioner
was sentenced in the United States District Court for the
District of Puerto Rico to an eight-month term of
imprisonment in Case No. 3:05-CR-004-001, upon revocation of
his supervised release term ( id. Â¶ 5 & att. C). The
United States Bureau of Prisons ("BOP") prepared a
sentence computation for the petitioner based on the
eight-month term of imprisonment, commencing on June 15,
2009, the date of imposition ( id. Â¶ 6 & att. D).
The petitioner received prior custody credit from March 27,
2009, the date of his arrest, through June 14, 2009, the day
before his sentencing hearing, which resulted in a projected
release date of November 25, 2009 ( id. Â¶ 6 & att.
September 16, 2009, in Case No. 3:09-CR-162-001 the
petitioner was sentenced to a 33-month term of federal
imprisonment with a three-year term of supervised release by
the United States District Court for Puerto Rico for re-entry
after deportation subsequent to the commission of an
aggravated felony, in violation of 8 U.S.C. Â§ 1326(a) and
(b)(2)) ( id. Â¶ 7 & att. A at 2). This sentence was
to be served consecutively to the eight-month term of
imprisonment imposed for the supervised release revocation in
Case No. 3:05-CR-004-001 ( id. Â¶ 7 & att. E).
November 25, 2009, the petitioner was released in error to
the Department of Homeland Security, Immigration and Customs
Enforcement ("ICE") on a detainer on his projected
release date for Case No. 3:05-CR-004-001, despite having the
remaining consecutive 33-month sentence in Case No.
3:09-CR-162-001. The error occurred as the judgment in Case
No. 3:09-CR-162-001 was not properly reported to the BOP to
be calculated with his existing federal sentence. Had the BOP
received the judgment in Case No. 3:09-CR-162-001, the
33-month sentence would have been calculated on the
petitioner's sentence monitoring computation data to
begin on November 26, 2009, the date he completed his
eight-month term of imprisonment for revocation of his
supervised release ( id. Â¶ 8 & atts. E, F)
December 16, 2009, the petitioner was deported by ICE to his
home country of the Dominican Republic. On July 6, 2010, the
petitioner was arrested by federal authorities in Puerto Rico
on new federal charges. On January 17, 2012, the petitioner
was sentenced in Case No. 3:10-CR-253-001 by the United
States District Court for the District of Puerto Rico to a
96-month term of imprisonment for conspiracy to possess with
the intent to distribute at least 2 but less than 3.5
kilograms of cocaine, in violation of 21 U.S.C. Â§ 846 and
841(a)(1) and (b)(1)(B)(ii)(II) ( id. Â¶ 9 & atts. B,
has prepared a sentence computation for the petitioner based
on an aggregate 129-month term of confinement in Case Nos.
3:09-CR-162-001 and 3:10-CR-253-001, commencing on July 6,
2010, the date he last entered federal custody. His projected
date of release is November 17, 2019, with credit for Good
Conduct Time ( id. Â¶ 10 & att. H).
petition, the petitioner requests credit from November 26,
2009, until July 6, 2010, "for time he spent at liberty
due to a custodial mistake by the BOP and the Bureau of
Immigration and Customs Enforcement... due to no fault of his
own" (doc. 1 at 6). He asserts his "sentence should
run through the period of interruption" ( id.
). He further claims that he is being denied credit for time
he served at the Metropolitan Detention Center
("MDC") Guaynabo in Puerto Rico from July 7, 2010,
to January 17, 2012 ( id. at 7). Finally, the
petitioner asserts that the BOP had no authority to combine
his 33-month and 96-month sentences into a 129-month
aggregated sentence (doc. 1-1 at 3).
LAW AND ANALYSIS
Exhaustion of Remedies
respondent first argues that the petitioner has not properly
exhausted his administrative remedies. Although 28 U.S.C. Â§
2241 does not contain a statutory exhaustion requirement,
courts consistently require prisoners to exhaust their
administrative remedies prior to seeking habeas review under
Â§ 2241. See Braden v. 30th Judicial Circuit
Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in a
Â§ 2241 matter); Timms v. Johns, 627 F.3d 525 (4th
Cir.2010) (noting courts require "exhaustion of
alternative remedies before a prisoner can seek federal
habeas relief" (internal quotation marks omitted)).
Exhaustion allows prison officials to develop a factual
record and "an opportunity to resolve disputes
concerning the exercise of their responsibilities before
being haled into court." Jones v. Bock, 549
U.S. 199, 204 (2007). Any arguments not advanced at each step
of the administrative appeal are procedurally defaulted.
See Moffat v. Broyles, 288 F.3d 978, 981-82
(7th Cir.2002). Moreover, if a prisoner cannot obtain an
administrative remedy because of his failure to timely appeal
at the administrative level, then the prisoner has
procedurally defaulted his Â§ 2241 claim, unless the prisoner
can demonstrate cause and prejudice for the failure. See,
e.g., Moscato v. Fed. Bureau of Prisons, 98
F.3d 757, 760 (3rd Cir.1996), cited with approval by
Watkins v. Compton, 126 F.Appx. 621, 622 (4th Cir.
BOP's grievance procedure is a three-tiered process
whereby an inmate may complain about any aspect of his
confinement. 28 C.F.R. Â§ 542.10. The process begins with the
inmate attempting to informally resolve the complaint with a
staff member. Id. Â§ 542.13(a). If informal
resolution is not successful, the inmate may file a formal
written complaint to the Warden. This complaint must be filed
within 20 calendar days from the date on which the basis for
the complaint occurred. Id. Â§ 542.14(a). If the
inmate is not satisfied with the Warden's response, that
response may be appealed to the Regional Director within 20
calendar days of the date the Warden signed the response. An
inmate who is not satisfied with the Regional Director's
response may submit an appeal to the General Counsel within
30 calendar days of the date the Regional Director signed the
response. Id. Â§ 542.15(a).
formal requests are logged into the national database and
given a unique identifying number. An extension is added to
the number that denotes the level at which the claim is
filed. Subsequent appeals of an issue will have the same
identification number, with a different extension identifying
the level where filed. The extension "-F1"
indicates the filing was at the institution or field level.
The extension "-R1" indicates the filing was at the
regional level. The extension "-A1" indicates the
filing was at the national level. If an appeal is rejected
and re-filed at the same level, perhaps correcting the
identified deficiencies, then the number will change but the
letter will remain the same. For example, the extension
"-R2" indicates an appeal was rejected at the
regional level once and the inmate has re-filed, presumably
after correction of the noted deficiencies (doc. 11-2,
Meredith decl. Â¶ 4).
about July 3, 2014, the petitioner filed Remedy No. 785474-F1
at FCI Bennettsville requesting that 18-months of prior
custody credit (from July 6, 2010, through January 17, 2012)
be applied to his sentence; that his 33-month sentence be
removed from his BOP sentence calculation; and that his
sentence be recalculated ( id. Â¶ 6 & att. A at 1, B
at 4-5). On or about July 10, 2014, the respondent denied