Opinion
Case No. CIV-18-852-F
04-15-2019
PEREZ-ROMERO, EDUARDO, Petitioner, v. WARDEN, GPCF/BOP, UNITED STATES, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a federal prisoner appearing pro se, brings this action under 28 U.S.C. § 2241 alleging the Federal Bureau of Prisons (BOP) failed to grant him jail credit "from 11/21/2014 to 12/10/2014." Petition (Pet.) at 6-7 [Doc. No. 1]; see also Memorandum (Mem.) [Doc. No. 2]. United States District Judge Stephen P. Friot has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Respondent filed his second motion to dismiss (Resp.'s Mot.), [Doc. No. 15], and Petitioner did not respond. Then, while the action was pending, Petitioner was released from confinement. For the reasons set forth below, it is recommended that the Court DISMISS Petitioner's § 2241 Petition moot, or, alternatively, GRANT Respondent's motion to dismiss.
Respondent filed an earlier motion to dismiss, [Doc. No. 8], which the Court denied, [Doc. Nos. 9, 13].
I. Background and Petitioner's Claim
In a prior Report and Recommendation, the Court detailed the relevant background as illustrated in the Petition and Respondent's first motion to dismiss. [Doc. No. 9]. Respondent did not include the same arguments and exhibits in the second motion to dismiss and thus the Court relies on its prior findings. To that end, the Court restates:
Police officers in Elkhart, Indiana arrested Petitioner on November 17, 2014. Then, on November 21, 2014, U.S. Immigration and Customs Enforcement (ICE) took Petitioner into custody. On December 10, 2014, federal officials indicted Petitioner on drug-related charges, and ICE officials transferred Petitioner's custody to the United States Marshals Service. Petitioner was convicted in federal court on July 16, 2015, and BOP officials credited his federal sentence with time spent in custody from November 17, 2014 to November 21, 2014, and December 10, 2014 to July 15, 2015.Id. at 2 (citations omitted).
BOP officials did not credit Petitioner for the time he spent in ICE custody - November 22, 2014 to December 9, 2014. See id. at 4. Petitioner believes he is entitled to such credit.
All page citations refer to this Court's CM/ECF pagination.
The Court judicially notices that Petitioner was released from confinement on April 12, 2019.
See https://www.bop.gov/inmateloc/ (searching Petitioner's BOP number 13954-027; last accessed April 15, 2019).
II. Mootness
"'Article III, Section 2 of the United States Constitution extends the judicial power only to 'Cases' or 'Controversies.'" Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1210 (10th Cir. 2006) (citation omitted). And, "[t]he power to grant a writ of habeas corpus under [28 U.S.C.] § 2241 is dependent on the prisoner being in 'custody.'" Crawford v. Booker, No. 99-3121, 2000 WL 1179782 at * 1 (10th Cir. Aug. 21, 2000) (citing § 2241(c)). Here, Petitioner seeks additional credits for time served in ICE detention, which would result in a shortened sentence. See Pet. at 7. But since Petitioner has been released from that sentence, the alleged calculation errors "cannot be undone." Spencer v. Kemna, 523 U.S. 1, 8 (1998) (finding petitioner's habeas petition moot where the incarceration "that [] occurred as a result [of the alleged constitutional violation] is now over, and cannot be undone"); see also Craddock v. Farris, CIV-14-0245-F, 2014 WL 3346599, *1-2 (W.D. Okla. July 8, 2014) (unpublished district court order) (adopting magistrate judge's finding that petitioner's § 2241 petition, wherein he alleged officials had failed to credit his sentence with time served in county jail, became moot when petitioner was released from confinement"). Accordingly, Petitioner's Petition should be dismissed as moot.
III. Respondent's Motion to Dismiss
Alternatively, the Court may grant Respondent's motion to dismiss.
Petitioner's release from confinement might not moot his habeas petition if he can show "collateral consequences adequate to meet Article III's injury-in-fact requirement." Spencer, 523 U.S. at 14. Because Petitioner is challenging the execution of his sentence, rather than his underlying conviction, the Court does not presume he could meet that standard. See Crawford, 2000 WL 1179782, at *1 ("Because [petitioner's] habeas petition attacks the execution of his sentence, rather than the underlying criminal conviction, collateral consequences are generally not presumed."). And, because it appears Petitioner has completed his sentence - as opposed to being released on supervised release, etc. - the Court does not believe Petitioner could prove such consequences. See Spencer, 523 U.S. at 8 (holding that "collateral consequences" must be "either proved or presumed"). However, in an abundance of caution, the Court provides an alternative ground for dismissal. --------
A. Standard for Dismissal
Respondent moves for dismissal based on Petitioner's failure to exhaust his administrative remedies but does not articulate under what provision. See Resp.'s Mot. at 1. Based on the argument presented, Fed. R. Civ. P. 12(b)(6) is the logical choice. See, e.g. Aguilera v. Kirkpatrick, 241 F.3d 1286, 1289-90 (10th Cir. 2001) (discussing the appropriateness of a Rule 12(b)(6) dismissal in proceedings arising under § 2241). In ruling on such a motion, the Court's function "'is not to weigh potential evidence that the parties might present at trial, but to assess whether the [petition] alone is legally sufficient to state a claim for which relief may be granted.'" Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014) (citation omitted). To that end, "'[a]ll well-pled factual allegations are accepted as true and viewed in the light most favorable to the nonmoving party.'" Id. (citation omitted).
The Court notes that Respondent relies on exhibits attached to his motion to dismiss, which would ordinarily require the Court to convert the motion into one for summary judgment. See Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017). Here, however, Respondent's exhibits contain information relevant to Petitioner's exhaustion attempt, See Resp.'s Mot., Attach 1-2, which Petitioner referenced in his Petition. See Pet. at 3-4. Under such circumstances, the Court need not convert the motion into one for summary judgment. See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) ("Notwithstanding . . . general principles, if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.").
B. Analysis
Petitioner seeks relief in the form of jail-time credits, alleging that Respondent failed to credit him with the time he spent in ICE custody. See Pet. at 6. Respondent argues, however, that Petitioner failed to fully exhaust his administrative remedies before filing suit. See Resp.'s Mot. at 1-7. The Court agrees with Respondent.
Petitioner was required to exhaust all available administrative remedies prior to seeking relief under 28 U.S.C. § 2241. See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). Because he was challenging the BOP's sentence calculation, Petitioner was required to seek informal resolution with prison staff and then file a formal written Administrative Remedy Request. See Resp.'s Mot., Attach. 1 at 2, 4. Then, if Petitioner was unsatisfied with the response, he had to submit an appeal to the Regional Director, and, if necessary, to the General Counsel. Id. at 5-6.
Petitioner, who is familiar with this process, see Pet.'s Mem., Attach. 1 at 2, attempted to exhaust his administrative remedies with "Mr[.] Roger, Remedy Coordinator," who granted "[p]artial jail credit." Pet. at 2. Petitioner then explains that he did not appeal because "[f]urther appeal would have been futile." Id. at 3.
There is a narrow futility exception, but Petitioner carries the burden. See Garza, 596 F.3d at 1203-04; see also Gonzalez v. United States, No. CIV-15-95-C, 2016 WL 806072, at *4 (W.D. Okla. Jan. 11, 2016) (unpublished report and recommendation) ("The futility exception is narrow, however, and it is the Petitioner's burden to demonstrate futility."), adopted, 2016 WL 843389 (W.D. Okla. Mar. 1, 2016) (unpublished district court order). Here, Petitioner offers no further explanation other than referencing documents attached to his Memorandum. See Pet. at 3. Those documents do not show that "administrative relief was 'effectively foreclosed.'" Cantrall v. Chester, 454 F. App'x 679, 681 (10th Cir. 2012) (citation omitted). Thus, in the absence of futility, and in light of Petitioner's admission that he did not complete the administrative process, his Petition should be dismissed without prejudice. See, e.g., Teagle v. Champion, 21 F. App'x 790, 792 (10th Cir. 2001) (instructing the district court to dismiss the § 2241 petition, for lack of exhaustion, "without prejudice").
RECOMMENDATION
For the reasons addressed above, the Court should dismiss Petitioner's Petition as moot. Alternatively, the Court may grant Respondent's motion to dismiss, [Doc. No. 15], and dismiss the Petition without prejudice for failure to exhaust administrative remedies.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by May 6, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 15th day of April, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE