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Bataldo-Castillo v. Bragg

United States District Court, D. South Carolina, Greenville Division

April 21, 2016

Argeni Bataldo-Castillo # XXXXX-XXX Petitioner,
v.
Warden Travis M. Bragg, Respondent.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. McDONALD, Magistrate Judge.

         This 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.

         Pursuant 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 district court.

         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).

         FACTS PRESENTED

         The 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. ¶ 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. ¶ 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. ¶ 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. ¶ 6 & att. D).

         On 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. § 1326(a) and (b)(2)) ( id. ¶ 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. ¶ 7 & att. E).

         On 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. ¶ 8 & atts. E, F)

         On 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. § 846 and 841(a)(1) and (b)(1)(B)(ii)(II) ( id. ¶ 9 & atts. B, G).

         The BOP 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. ¶ 10 & att. H).

         In his 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).

         APPLICABLE LAW AND ANALYSIS

          Exhaustion of Remedies

         The respondent first argues that the petitioner has not properly exhausted his administrative remedies. Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in a § 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 § 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. 2005).

         The BOP's grievance procedure is a three-tiered process whereby an inmate may complain about any aspect of his confinement. 28 C.F.R. § 542.10. The process begins with the inmate attempting to informally resolve the complaint with a staff member. Id. § 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. § 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. § 542.15(a).

         All 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. ¶ 4).[1]

         On or 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. ¶ 6 & att. A at 1, B at 4-5). On or about July 10, 2014, the respondent denied this ...


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