Opinion
Civil Action 6:21-cv-00764-HMH-KFM
06-04-2021
Wisly Toussaint, Petitioner, v. Stevie Knight, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
The petitioner's § 2241 petition was entered on the docket on March 17, 2021 (doc. 1). By orders dated April 9, 2021, and May 12, 2021, the undersigned informed the petitioner that his case was not in proper form for judicial review (docs. 5; 11). The petitioner did not respond to the court's orders or submit the filing fee. As such, for the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.
ALLEGATIONS
Petitioner's Conviction and Sentence
On October 30, 2014, in the United States District Court for the Southern District of Florida, the petitioner was convicted by a jury of one count of conspiracy to commit access device fraud, two counts of access device fraud, and five counts of aggravated identity theft. See United States v. Toussaint, C/A No. 1:14-cr-20356-JAL-1, at doc. 85 (S.D. Fla.). The petitioner was sentenced to one hundred sixty-eight months' incarceration to be followed by supervised release. Id. at doc. 111. The petitioner appealed, and his convictions were affirmed by the Eleventh Circuit Court of Appeals. United States v. Toussaint, 627 Fed.Appx. 810 (11th Cir. 2015).
On January 19, 2016, the petitioner filed a motion pursuant to § 2255. United States v. Toussaint, C/A No. 1:14-cr-20356-JAL-1, at doc. 133. The petitioner's motion was denied on December 7, 2017. Id. at doc. 136. The petitioner then filed a motion to reduce sentence based upon an amendment to the United States Sentencing Guidelines (“USSG”). Id. at doc. 137. The petitioner's motion was denied on September 3, 2020. Id. at doc. 145. The petitioner then filed a motion for compassionate release on April 20, 2021, which remains pending at this time. Id. at doc. 146.
Petitioner's Present Action
The petitioner, an inmate in the custody of the Bureau of Prisons (“BOP”) and located at Federal Correctional Institution Estill (“FCI Estill”) now seeks habeas relief pursuant to 28 U.S.C. § 2241, asserting that the BOP is violating his federal constitutional rights by refusing to provide credit under the First Step Act of 2018 (“FSA”) for the petitioner's participation in “Evidence-Based Recidivism Reduction Programming” (“EBRR Programming”) (doc. 1). The petitioner contends that he is entitled to an additional 365 days of credit (id. at 9). The petitioner appears to concede he has not exhausted his administrative remedies, but argues that exhaustion would be futile because it is an issue of statutory interpretation (id. at 8-9; see doc. 1-1). For relief, the petitioner seeks an order from the court instructing the BOP to provide the petitioner with 365 days credit (doc. 1 at 9).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-T errorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (percuriam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the petitioner filed this action seeking relief pursuant to 28 U.S.C. § 2241. However, for the reasons that follow, his case is subject to summary dismissal.
Rule 41(b)
It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (emphasis added). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. In considering whether to dismiss an action pursuant to Rule 41(b), the court is req uired to consider four factors:
(1) the degree of personal responsibility on the part of the [petitioner];
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the [petitioner] in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. Specifically, with respect to factors (1) and (3), as noted, despite multiple opportunities, the petitioner has failed to bring his case into proper form. In doing so, he has failed to comply with the court's orders of April 9, 2021, and May 12, 2021, which instructed the petitioner to provide specific documentation regarding payment of the filing fee (docs. 5; 11). Each order warned the petitioner of the consequences of failing to comply with the orders' instructions, including the dismissal of his case pursuant to Fed.R.Civ.P. 41(b) (docs. 5 at 1; 11 at 1). Despite these warnings, the petitioner has not provided the court with the required documentation regarding payment of the filing fee. Instead, on April 26, 2021, the petitioner filed a motion requesting that the court reach out to SCDC regarding payment of his filing fee - a motion that was denied on May 12, 2021 (docs. 8; 11). In denying the motion, the petitioner was reminded that he could provide a Form AO 240 or pay the filing fee in order to bring his case into proper from (doc. 11 at 1). As noted, the petitioner has done neither. Accordingly, as the petitioner has failed to comply with the court's orders and has been previously warned that such failures could result in dismissal, the undersigned recommends that the instant action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with orders of the court.
The petition is subject to summary dismissal
Even if the petitioner had brought this case into proper form, his case would still be subject to summary dismissal. As an initial matter, because the petitioner is incarcerated in the District of South Carolina and he names the warden of FCI Estill as the respondent, his § 2241 petition is properly filed in this court. Here, the petitioner seeks an order instructing the BOP to provide him with 365 days' credit for completing EBRR Programming (doc. 1). However, the petition is subject to summary dismissal because the petitioner has failed to exhaust his administrative remedies and his request is not yet ripe.
Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000). “Generally, a § 2241 petition ‘attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion ‘attacks the legality of detention.'” Rice v. Lamanna, 451 F.Supp.2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the “computation and execution of the sentence rather than the sentence itself”).
Here, as noted, based upon the amendments made by the FSA, the petitioner seeks an order instructing the BOP to provide him with credit for an additional 365 days based upon engagement in EBRR Programming (see docs. 1; 1-1; 1-2). Because the petitioner challenges the BOP's calculation of his credits for completing EBRR Programming - due to the implementation of the FSA - this petition is properly brought as a § 2241 habeas petition. See Diaz v. Warden, FCI Edgefield, C/A No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting that a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations, including good conduct time credits”) (citing Yi v. Fed. Bureau of Prisons, 412 F.3d 526 (4th Cir. 2005); United States v. Little, 392 F.3d 671, 679 (4th Cir. 2004)).
Exhaustion
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 and citation 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 McCullough v. Warden of FCI Williamsburg, C/A No. 8:19-cv-00630-BHH-JDA, 2019 WL 3308276, at *3 (D.S.C. Mar. 27, 2019), report and recommendation adopted by 2019 EL 3306099 (D.S.C. July 23, 2019) (citing 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). Although the exhaustion of administrative remedies is not waivable, United States v. Jeter, 161 F.3d 4 (4th Cir. 1998) (table), 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, C/A No. 6:06-cv-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007). Further, 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 v. U.S. Bureau of Prisons, 243 F.3d 629, 634-35 (2d Cir. 2001)).
Here, the petitioner appears to concede that he has not exhausted his administrative remedies, arguing that exhaustion would be futile because whether to provide the EBRR Programming credit is an issue of statutory interpretation (doc. 1 at 8-9; see doc. 1-1). However, the petitioner's argument is without merit as he fails to identify any issue of statutory construction that the court must resolve. Instead, he simply asks the court to order the BOP to calculate and award additional credit time for his completion of EBRR programs. However, the “BOP should be afforded the opportunity to correct any alleged errors, to develop its factual record, and apply its expertise to the situation. Mero v. Phelps, C/A No. 4:20-cv-03615-MGL-TER, 2020 WL 7774378, at *2 (D.S.C. Nov. 2, 2020), report and recommendation adopted by 2020 WL 7769784 (D.S.C. Dec. 30, 2020). Therefore, because the petitioner has not exhausted his administrative remedies, the instant matter should be dismissed. See Arriaga v. Knight, C/A No. 1:21-cv-0258-JFA-SVH, at doc. 7 (D.S.C. Feb. 3, 2021) (finding the petitioner failed to exhaust his administrative remedies in a case asserting identical claims to the present case), report and recommendation adopted by doc. 12 (D.S.C. Feb. 23, 2021).
Ripeness
Additionally, the petitioner's claim is subject to dismissal because it is not yet ripe for review. A number of other courts, both within this district and in other districts, have evaluated claims similar to those raised herein and have reached the same conclusion. See, e.g., Cohen v. United States of America, C/A No. 20-cv-10833-JGK, 2021 WL 1549917, at *3 (S.D.N.Y. Apr. 20, 2021) (finding that “the petition is premature and the claim is not ripe”) (collecting cases). As the Court in Cohen explained:
The First Step Act was signed into law on December 21, 2018. Under the Act, an eligible prisoner “who successfully completes evidence-based recidivism reduction programming or productive activities” and who is “determined by the Bureau of Prisons to be at a minimum or low risk for recidivating” shall earn 15 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities. 18 U.S.C. § 3632(d)(4)(A).
The Act provided for a gradual development of the framework of evaluation and programming pursuant to which various incentives, including time credits, could be earned. . . .
[U]nder the FSA, the BOP is not required to provide evidence-based recidivism reduction programing and
productive activities for all prisoners, or calculate or apply time credits earned, until January 15, 2022. . . .
The BOP has statutory requirements during the phase-in period while programs are being developed and implemented, but the BOP is not required to [begin] providing credits and, until the phase-in period is completed, the Court would lack any basis to determine if the BOP was complying with the statutory requirements. Accordingly, there is no basis for the Court to conclude that the failure of the BOP to provide ETCs during the phase-in period is a violation of the First Step Act.Cohen, 2021 WL 1549917, at *2-3. As such, even if the petitioner had exhausted his administrative remedies, his claim would nevertheless be subject to dismissal as it is not yet ripe. See Saleh v. Young, C/A No. 5:19-cv-00468, 2021 WL 1758711 (S.D. W.Va. May 4, 2021); Hand v. Barr, C/A No. 1:20-cv-00348-SAB-HC, 2021 WL 392445, at *5 (E.D. Cal. Feb. 4, 2021) (“[B]ecause the Act does not require BOP to provide evidence-based recidivism reduction programs and productive activities for all prisoners until January 2022, the Court finds that the petitioner's claims regarding earned time credits and evidence-based recidivism reduction programs are not ripe.”); Llewlyn v. Johns, C/A No. 5:20-cv-77, 2021 WL 535863 (S.D. Ga. Jan. 5, 2021) (same), report and recommendation adopted by 2021 WL 307289 (S.D. Ga. Jan. 29, 2021). As such, the undersigned recommends that this petition be dismissed because the petitioner's claim is not yet ripe.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return because the petitioner has failed to bring this case into proper form, he has not exhausted his administrative remedies, and his request is not yet ripe. The petitioner's attention is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein at this time; however, dismissal without prejudice is recommended because the petitioner may seek the relief requested herein once his claim is ripe.
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
300 East Washington Street, Room 239
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).