Opinion
8:23-cv-1986-JD-JDA
06-27-2023
Alexander Roland Frazier, Jr., Petitioner, v. Warden E. Strong, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge
Alexander Roland Frazier, Jr., (“Petitioner”) is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”) and is currently incarcerated in South Carolina at the Estill Federal Correctional Institution (“FCI Estill”). [Doc. 1 at 2.] Proceeding pro se, Petitioner brings this habeas corpus action under 28 U.S.C. § 2241. [Id.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, the Petition filed in this matter is subject to summary dismissal.
BACKGROUND
Petitioner brings this action to challenge the BOP's calculation of his sentence and “correct . . . [his] status to receive FTC credits.” [ Id. at 1-2.] Petitioner alleges he was sentenced on March 12, 2019, in the United States District Court for the District of South Carolina at case number 2:18-cr-00369-RMG-1. [Id. at 1.] In the present action, Petitioner asserts the following ground for relief:
GROUND ONE: Illegal Incarceration. [Id. at 6.] For his relief, Petitioner requests that the Court instruct the BOP to grant him immediate release and to vacate his sentence. [Id. at 7.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Further, this Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
Habeas Corpus
Generally
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attack[ing] the computation and execution of the sentence rather than the sentence itself.” U.S. v. Miller, 871 F.2d 488, 490 (4th Cir. 1989); Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). A petition pursuant to § 2241 challenging the execution of a federal prisoner's sentence generally addresses “such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Manigault v. Lamanna, No. 8:06-cv-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.”). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004), and “in the district of confinement rather than in the sentencing court,” Miller, 871 F.2d at 490.
Exhaustion
Executing sentences and computing jail time are administrative functions under the authority of the Attorney General, who has delegated these tasks to the BOP, including the responsibility for computing time credits and determining a sentence termination date once defendants actually commence serving their sentences. United States v. Wilson, 503 U.S. 329, 334-35 (1992). Accordingly, the Attorney General, through the BOP, must make the initial determination to award sentence credit for time spent in official detention; a district court does not have the jurisdiction to make an initial determination. U.S. v. Jeter, 161 F.3d 4, at *1 (4th Cir. 1998) (unpublished table decision). As a result, prior to filing a § 2241 habeas petition, a petitioner must exhaust his administrative remedies. McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004). The requirement to exhaust administrative remedies is not waivable. Jeter, 161 F.3d 4, at *2. Further, a petitioner's failure to exhaust administrative remedies is excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445.
The BOP's Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request; Requests must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id.
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts have required 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, 531 (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 provides “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 (3d Cir. 1996), cited with approval in Watkins v. Compton, 126 Fed.Appx. 621, 622 (4th Cir. 2005); Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994). Additionally, “[w]here a petition for writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241, the exhaustion of administrative remedies is jurisdictional.” Hicks v. Jordan, 165 Fed.Appx. 797, 798 (11th Cir. 2006); see Timms, 627 F.3d at 533. Although the exhaustion of administrative remedies is not waivable, Jeter, 161 F.3d at *2, some courts have held that the judicial exhaustion requirement of § 2241 may be excused by courts for discretionary reasons, such as where requiring exhaustion would be futile. See, e.g., Dunkley v. Hamidullah, No. 6:06-cv-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007). However, courts have emphasized a petitioner's failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445 (citing Carmona, 243 F.3d at 634-35).
DISCUSSION
As noted, Petitioner commenced this action to challenge the BOP's calculation of his sentence, and he asks this Court to order the BOP to immediately release him and to vacate his sentence. However, this action is subject to summary dismissal because Petitioner has not exhausted his administrative remedies and he has failed to demonstrate any cause or prejudice to show that the exhaustion requirement should be waived.
Petitioner attached a document to his Petition in which he explains as follows:
Petitioner was sentenced on 03-12-2019 and committed to [the BOP] ¶ 04-05-2019. Petitioner was determine[d] at that time by the [BOP] to be “Ineligible” for the “First Step Act.” Since then he has file[d] numerous administrative remedies to allow the [BOP] to correct the error. [Al]most 4 years later[,] through the administrative remedy process[,] the error was corrected on 02-02-23 at [FCI Estill]. Because [P]etitioner has a medium recidivism level of 42 he can[]not apply the 365 days of credits that he has earned until he reaches a “low” recidivism of 39. [P]etitioner has already taken the necessary “Productive
Activity” or “PA” courses needed to reduce his recidivism [score]. But the [BOP] refuses to update the system. The [BOP] says that it only does the process for reassessing a prisoner's recidivism . . . every 180 days. At this point[, P]etitioner doesn't have that amount of time left to receive the full 365 days of credit that he has earned. If he had to wait 180 days to be reassess[ed] twice before the [OP] can apply the credits[, h]e would not receive the full benefits of the First Step Act.[Doc. 1-1.]
Because Petitioner is challenging the BOP's calculation of his release date, he must first exhaust his administrative remedies before bringing an action in this Court. However, Petitioner has not done so. Although Petitioner contends he successfully attempted to resolve the issue of whether he is entitled to earn First Step Act (“FSA”) credits-and he acknowledges that the BOP corrected that particular issue-he has not attempted to resolve through the BOP's administrative remedies process the additional issue as to whether he is entitled to an immediate reassessment of his PATTERN score. Because Petitioner did not complete each of the required steps explained in the applicable law section above as to this second issue, he has not exhausted his administrative remedies. As such, this Petition is subject to dismissal because it is clear from the face of the Petition that Petitioner did not exhaust his administrative remedies. See, e.g., Dowd v. Smith, No. 5:18-HC-2084-FL, 2018 WL 6492951, at *2 (E.D. N.C. Dec. 10, 2018) (“The face of the petition thus makes clear that petitioner did not exhaust administrative remedies before filing suit.”); Mejia-Ramirez v. Zych, No. 7:12-cv-248, 2013 WL 1352597, at *2 (W.D. Va. Apr. 3, 2013) (finding the court could not reach the merits of the § 2241 petition because the petitioner had failed to exhaust his administrative remedies).
Indeed, this is precisely the type of case which requires a fully developed administrative record so that the Court may evaluate the BOP's calculation of time to be credited to Petitioner's sentence. See Mero v. Phelps, No. 4:20-cv-3615-MGL-TER, 2020 WL 7774378, at *2 (D.S.C. Nov. 2, 2020) (“The BOP should be afforded the opportunity to correct any alleged errors, to develop its factual record, and apply its expertise to the situation.”), Report and Recommendation adopted by 2020 WL 7769784 (D.S.C. Dec. 30, 2020). Therefore, because Petitioner has not exhausted his administrative remedies, the Petition should be dismissed. See Rodgers v. Glenn, No. 1:16-cv-16-RMG, 2017 WL 1051011, at *3 (D.S.C. Mar. 20, 2017) (“Because [Petitioner] admits he did not [exhaust his administrative remedies], his lawsuit is barred by statute.”).
Further, even if Plaintiff had exhausted his administrative remedies as to the issue of whether the BOP should reassess his PATTERN score, the undersigned would still recommend summary dismissal of his claims. This is so because Petitioner is not entitled to the relief he seeks based on the allegations in the Petition.
With regard to the application of FSA credits, one court has recently summarized the process as follows:
The FSA provides eligible inmates the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming (EBRR programs) and productive activities (PA). 18 U.S.C. § 3632(d)(4)(A). The earned credits, referred to as FTCs, can be applied toward earlier placement in prerelease custody, such as Residential Reentry Centers and home confinement, or toward a term of supervised release. Id. § 3632(d)(4)(c).
Title I of the FSA mandated the development and implementation of a risk and needs assessment system for people in federal custody. The result was the Prisoner
Assessment Tool Targeting Estimated Risk and Needs (PATTERN) - a program designed to assess individuals' risk of engaging in crime once they are released from federal custody. An inmate's ability to benefit from FTCs is dependent on his PATTERN score. Inmates with any PATTERN score may earn FTCs, but only those inmates with low and minimum PATTERN scores can have the FTCs applied to their sentences. 28 C.F.R. § 523.42 (explaining how inmates earn FTCs); id. § 523.44 (limiting application of FTCs to eligible inmates who also have “demonstrated recidivism risk reduction or maintained a minimum or low recidivism risk, during the term of imprisonment”).Francis v. Warden of USP Lee, No. 7:22-cv-00307, 2023 WL 3945511, at *1 (W.D. Va.
June 12, 2023) (concluding that the petitioner's “§ 2241 claim seeking immediate application of the FTCs to permit his release or to reduce his term of supervised release is without merit” because he acknowledged he had a high Pattern score).
Here, Petitioner acknowledges that he “has a medium recidivism level of 42” and “he can[]not apply the 365 days of credits that he has earned until he reaches a ‘low' recidivism.” [Doc. 1-1 at 1.] Petitioner contends that the BOP should be ordered to immediately reassess his recidivism rate, rather than wait for a reassessment after the 180 day period. [Id.] The Court disagrees.
Petitioner does not dispute that the BOP has assessed him as having a medium risk recidivism score. Instead, he appears to argue that the BOP should reassess his PATTERN score and permit him to apply his credits to his sentence. However, Petitioner
misunderstands a crucial part of the FSA concerning not just [his] ability to earn time credits, but the application of those credits. While [Petitioner] is free to earn time credits as an inmate with a medium risk recidivism level, under 18 U.S.C. § 3624(g)(1)(D)(i)-(ii), the BOP cannot apply those time credits to [his] sentence unless and until [he] has a minimum or low risk recidivism level for two consecutive assessments for
prerelease custody or a minimum or low risk recidivism level for the last assessment for supervised release.Brown v. Garrett, No. 7:22-cv-00551-AMM-JHE, 2022 WL 18161601, at *3 (N.D. Ala. Dec. 22, 2022), Report and Recommendation adopted by 2023 WL 130519 (N.D. Ala. Jan. 9, 2023). “[T]he FSA expressly provides that while an inmate who has a PATTERN score of medium or high risk of recidivism is eligible to complete EBRR programs and PAs, the successfully completed programs and PAs are not applied towards the inmate's time credits until [he] has received a minimum or low risk PATTERN score for two consecutive assessments.” Id. (citing 18 U.S.C. § 3624(g)(1)(D)(i), (ii)). “[A]ll BOP inmates receive such reviews every 180 days, and [Petitioner's] PATTERN score remains too high to earn additional credit at this juncture.” Torok v. Beard, No. PX-21-cv-1864, 2022 WL 2703836, at *1 (D. Md. July 12, 2022). As such, Plaintiff's claim is without merit.
CONCLUSION AND RECOMMENDATION
Accordingly, it is recommended that the § 2241 Petition be DISMISSED without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).