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Davis v. Antonelli

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

November 5, 2018

Gregory Renard Davis, Petitioner,
v.
B.M. Antonelli, Respondent.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge

         This matter is before the court on the respondent's motion to dismiss (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 Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.

         I. PROCEDURAL HISTORY

         On May 9, 2018, the petitioner filed a petition in this court pursuant to 28 U.S.C. § 2241 seeking “credit for time spent in federal custody while borrowed from state by federal government on an habeas corpus ad prosequendum for related cases involving the same conduct” (doc. 1 at 8). The respondent filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) on July 23, 2018 (doc. 11). By order issued the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to adequately respond to the motion (doc. 12). On August 3, 2018, the petitioner filed a response in opposition (doc. 14).

         II. FACTS PRESENTED

         The petitioner is an inmate presently incarcerated in Federal Correctional Institution (“FCI”) Williamsburg in Salters, South Carolina (doc. 11-1). On November 15, 2005, the petitioner was arrested by local law enforcement authorities in Whiteside County, Illinois, for unlawful delivery of a controlled substance and unlawful possession of a controlled substance (see doc. 11-3, Stopps decl. ¶ 7). On February 14, 2006, while awaiting trial on the state charges, the petitioner was indicted by federal authorities for conspiracy to distribute and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (id. ¶ 8; doc. 11-4). On March 1, 2006, the petitioner pled guilty to a single state charge, unlawful delivery of a controlled substance, receiving a sentence of six years imprisonment in the Illinois Department of Corrections (“IDOC”) (doc. 11-2, Stopps decl. ¶ 9 & attach. 1). The petitioner received 136 days jail credit towards his Illinois state sentence for time spent in pretrial detention (id.).[1]

         On June 12, 2006, the petitioner, now in IDOC custody, was temporarily transferred from IDOC to the custody of the United States Marshals Service (“USMS”) pursuant to a writ of habeas corpus ad prosequendum (id. ¶ 10 & attach. 2). On March 30, 2007, he appeared before the Honorable Thomas J. Shields, United States Magistrate Judge, Southern District of Iowa, and entered a plea of guilty to his federal indictment for conspiracy to distribute and possession with intent to distribute cocaine base (doc. 11-5). The Honorable John A. Jarvey, United States District Judge, Southern District of Iowa, accepted the petitioner's guilty plea on April 18, 2007 (doc. 11-6). On November 5, 2007, Judge Jarvey sentenced him to 255 months imprisonment, with “credits for . . . the seven months time served in the [IDOC] since November 15, 2005, for his conviction in Whiteside County, Illinois . . . based on conduct related to the instant offense” (doc. 11-7 at 2).[2]

         On December 10, 2007, the petitioner was returned to IDOC officials (doc. 11-3, Stopps decl. ¶ 12 & attach. 2). On April 15, 2008, the petitioner's state sentence was discharged when he was released from state custody to USMS custody (id. ¶ 13 & attach. 4). Between the date the time the petitioner was arrested by local law enforcement authorities on November 15, 2005, until the time he was released from state custody on April 15, 2008, 883 days elapsed. As pointed out by the respondent, based on the discrepancy in the state court's order for time spent in pretrial detention, it appears the petitioner was actually credited with serving 913 days on his state charge. The petitioner's 255-month federal sentence commenced on April 15, 2008 (id. ¶ 14 & attach. 5). The petitioner's projected release date on his federal sentence is December 17, 2026, via Good Conduct Time (doc. 11-1 at 1).

         III. APPLICABLE LAW AND ANALYSIS

         A. Petitioner's Allegations

         In his petition, the petitioner seeks 24 months of “credit for time spent in federal custody while borrowed from state by federal government on an habeas corpus ad prosequendum for related cases involving the same conduct” (doc. 1 at 8-9). In support of this claim, the petitioner argues that because “the Illinois State Charges and the Federal Charges were related cases . . . he should have been credited the ‘full time spent in custody' for the one offense that was shared between federal and state entities” (doc. 1-1 at 4). He argues that the Federal Bureau of Prisons (“BOP”) should correct his time calculation to reflect the sentence commencement date of November 15, 2005, the date on which he was taken into custody by Illinois state officials on related charges (id. at 5). The respondent argues that the petition should be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) as the petitioner has failed to exhaust his administrative remedies and further argues that the petition is subject to dismissal for failure to state a claim pursuant to Rule 12(b)(6).

         B. Exhaustion of Administrative Remedies

         The respondent first argues that the petitioner has not properly exhausted his administrative remedies and therefore the petition should be dismissed pursuant to Rule 12(b)(1) (doc. 11 at 3-6). Although the text of 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 Section 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, 531 (4th Cir. 2010) (noting courts require “exhaustion of alternative remedies before a prisoner can seek federal habeas relief” (internal quotation marks omitted)). 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, 760-61 (3rd Cir. 1996), cited with approval by Watkins v. Compton, 126 Fed.Appx. 621, 622 (4th Cir. 2005).

         The BOP has a three-tiered formal administrative grievance process, in addition to an informal resolution process. See 28 C.F.R. § 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. Id. § 542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint to the Warden within 20 calendar days after the date upon which the basis for the request occurred. Id. § 542.14. The Warden shall respond within 20 calendar days. Id. § 542.18. If dissatisfied with the response, the inmate may appeal to the BOP's Regional Director within 20 days of the date of the Warden's response. Id. § 542.15(a). If dissatisfied with the regional response, the inmate may appeal to the Office of General Counsel within 30 days of the Regional Director's response. Id. Appeal to the General Counsel is the final level of agency review. Id. If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. Id. § 542.18.

         The respondent notes that 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 identified deficiencies, then the number will change but the letter will remain the same. For example, the extension “-R2” indicates the appeal was rejected at the regional level once and the inmate has re-filed, presumably after correction of the noted deficiencies (doc. 11 at 4-5).

         The Court of Appeals for the Fourth Circuit has recognized that “an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citation omitted). Thus, “‘when prison officials prevent inmates from using the administrative process . . ., the process that exists on paper becomes unavailable in reality.'” Bacon v. Greene, 319 Fed.Appx. 256, 257-58 (4th Cir. 2009) (quoting Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)). “The district court is ‘obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials.' ” Id. at 258 (quoting Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)). “Conversely, a prisoner does not exhaust all available remedies simply by failing to follow the required steps so that remedies that once were available to him no longer are.” Moore, 517 F.3d at 725 (citation omitted). If the prisoner himself were at fault for not exhausting, then the case would be over. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). “[T]o be entitled to bring suit in federal court, a prisoner must have utilized all available remedies in accordance with the applicable procedural rules, so that prison officials have been given an opportunity to address the claims administratively.” Moore, 517 F.3d at 725 (internal quotations omitted).

         The petitioner has failed to completely exhaust his administrative remedies. Specifically, a review of his administrative remedy history by Jan Stopps, a Management Analyst at the BOP's Designation and Sentence Computation Center, shows that the petitioner only sought relief at the institutional level (doc. 11-2; doc. 1 at 21; doc. 11-3, Stopps decl. ¶ 5). The petitioner attached the institutional response to remedy number 817764-F1 to his petition (doc. 1-2). The response is dated April 26, 2015, and references the petitioner's request for administrative remedy dated April 13, 2015 (id.). Thus, the Warden's response was timely. See 28 C.F.R. § 542.18 (stating that warden shall make response within 20 calendar days of the filing of a request for administrative remedy). There is no record indicating the petitioner sought additional review of the institution's response at either the Regional or General Counsel levels as required by BOP policy.

         In his response to the defendant's motion to dismiss, the plaintiff states that he “has been advised by DSCC and the Unit Team Staff that [he] had to contact the DSCC for an analysis of the computation and data of [his] particular case” (doc. 14 at 1).[3] He further states in his declaration that “after [he] filed to the DSCC [he] was directed by Unit Team Staff to file a Title 28 U.S.C. § 2241 habeas corpus writ to involve the United States District Court“ and that he thereafter did so (doc. 14-1, pet. decl.). However, the petitioner has failed to proffer any evidence suggesting that prison officials preventing him from using the administrative remedy process or that the remedy process was otherwise unavailable to him. As a result, his petition should be dismissed for failure to exhaust his administrative remedies. Should the district ...


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