Carmona v. U.S. Bureau of Prisons

• Decision Date: 01 August 2000
• Docket Number: PELAEZ-EDISON,Docket No. 00-2316
• Citation: 243 F.3d 629
• Parties: (2nd Cir. 2001) CARLOSCARMONA, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 629

243 F.3d 629 (2nd Cir. 2001)

CARLOS PELAEZ-EDISON CARMONA, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS, Respondent-Appellee.

Docket No. 00-2316

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Submitted Oct. 25, 2001

Decided: March 20, 2001

Petitioner Carlos Pelaez-Edison Carmona moves pursuant to 28 U.S.C. §1915(e)(1) for appointment of counsel to assist him in his appeal from a judgment of the United States District Court for the Eastern District of New York that denied him relief.

Denied.

Carlos Pelaez-Edison Carmona, Brooklyn, New York, submitted as Pro Se Petitioner-Appellant.

Vincent Lipari, U.S. Attorney's Office, Eastern District of New York, Brooklyn, New York, for Respondent-Appellee.

Before: CARDAMONE, POOLER, and KATZMANN, Circuit Judges.

CARDAMONE, Circuit Judge:

Carlos Pelaez-Edison Carmona (petitioner or appellant), a federal inmate appearing pro se and in forma pauperis, moves for appointment of counsel to assist him in his appeal from a May 2, 2000 judgment of the United States District Court for the Eastern District of New York (Amon, J.), dismissing his habeas corpus petition filed pursuant to 28 U.S.C. § 2241. Relief was denied because of petitioner's failure to exhaust available administrative remedies. After determining that the existing administrative scheme no longer provided Carmona an opportunity to exhaust his claims, the district court dismissed his petition as procedurally barred. A motion to reconsider was denied.

Appellant's motion for appointment of counsel on appeal of that dismissal compels us to consider the requirement of exhaustion of administrative remedies in the context of §2241. In the context of other habeas statutes, it is well-settled that a petitioner who has procedurally defaulted after failing to exhaust his available remedies may not seek habeas review in federal court without first making an initial showing of cause and prejudice. This general requirement is grounded on four principles, one of which is the notion of comity between federal and state courts. One might argue that because that rationale is missing when a federal prisoner challenges the execution of his sentence under §2241, the general requirement, like a four-legged stool with one leg removed, topples.

Such argument would be in vain. No exception from the required showing of cause and prejudice for §2241 review is warranted. Three rationales besides comity - finality, accuracy, and trial integrity - undergird that requirement and apply equally to the case of a federal prisoner who seeks habeas review without first exhausting his administrative remedies. A state prisoner must adhere to the procedural rules of the jurisdiction where he is confined, and if he fails to do so, habeas review in federal court is generally denied under notions of comity. By a parity of reasoning, a federal prisoner who defaults in pursuit of his administrative remedies will also be denied habeas review absent a showing of cause and prejudice.

BACKGROUND

In March 1998 Carmona petitioned the Northern District of New York for a writ of habeas corpus pursuant to 28 U.S.C. §2241 seeking to expunge from his record certain sanctions imposed upon him following a November 6, 1996 Bureau of Prisons (Bureau) disciplinary hearing. On June 10, 1998 the case was transferred to the Eastern District of New York since the substance of the complaint involved acts that allegedly occurred at the Metropolitan Detention Center in Brooklyn, New York (Detention Center).

The underlying disciplinary hearing was prompted when an officer in the Detention Center found Carmona in possession of two bags of marijuana after he had exited a visiting area restroom. Video evidence at the hearing had recorded Carmona, who was then working as an orderly, searching the restroom, while another inmate shielded the outside door with a trash bag, before eventually locating the narcotics in a toilet paper dispenser. The disciplinary hearing officer found Carmona guilty of marijuana possession and imposed a sanction of 30 days loss of good time credits, 30 days of disciplinary segregation, and one year loss of visiting and commissary privileges.

On November 27, 1996 Carmona filed an administrative appeal to the Regional Director of the Bureau, in which he disputed the merits of the hearing officer's findings. He contended principally that he was not the intended recipient of the narcotics because he was not originally scheduled to work on the day of the incident, and thus ordinarily would not have been in the visiting room. On December 18, 1996 the Regional Director denied the appeal finding sufficient evidence in the record to support the charges and advising Carmona that he could appeal to the General Counsel of the Bureau within 30 days.

By letter of January 8, 1997 Carmona attempted to appeal the administrative sanctions, again contending that he was not the intended recipient of the contraband. His appeal was rejected by the General Counsel because it did not comply with the formalities mandated by the Bureau's regulations, see 28 C.F.R. §542.15(b)(3) (2000), and Carmona was granted an extension of time to resubmit his appeal. Petitioner appealed three weeks later, but this appeal suffered from formal defects as well, having been erroneously sent to the Board's regional office rather than the General Counsel. Carmona received notice on March 5, 1997 that his appeal was noncompliant, and that he had ten days to resubmit the appeal to the General Counsel.

On May 29, 1997, 75 days after the prescribed deadline, appellant requested additional time, while admitting his timely receipt of the earlier rejection notice and knowledge of his limited time to appeal. He attributed his dereliction to intervening court appearances and prison transfers, as well as unelaborated "personal difficulties." The General Counsel refused to grant an extension and dismissed the appeal.

Nearly a year later, petitioner applied to the federal district court under 28 U.S.C. §2241 for a writ of habeas corpus. In that forum he alleged for the first time that the disciplinary hearing failed to accord with the requirements of due process because he was purportedly denied the opportunity to call certain witnesses, could not present specified documentary evidence, and was not afforded a Spanish-speaking staff counselor.

On May 2, 2000 the district court dismissed the petition, holding that Carmona had failed not only to properly appeal his dispute to the General Counsel, but also to raise his due process claims during any of his administrative appeals. Since the administrative remedies were unexhausted, and appeal to the General Counsel was no longer available, the district court deemed the claims exhausted for purposes of habeas review, but held that Carmona had procedurally defaulted on them. Finally, the court held that assuming the "cause and prejudice" justification for procedural defaults applied, Carmona did not proffer an adequate explanation for his failure to fully pursue his administrative remedies. Following the subsequent denial by the district court of a motion for reconsideration Carmona timely filed a notice of appeal to this Court and moved for an assignment of counsel to assist him. Our discussion focuses on the motion before us.

DISCUSSION

A.

When deciding whether to assign counsel to an indigent civil litigant under 28 U.S.C. §1915(e)(1), we look first to the "likelihood of merit" of the underlying dispute. Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989) (per curiam). Thus, even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the indigent's claim are thin and his chances of prevailing are therefore poor. See Cooper, 877 F.2d at 172. Only after an initial finding that a claim is likely one of substance, will we consider secondary factors such as the factual and legal complexity of the case, the ability of the litigant to navigate the legal minefield unassisted, and any other reason why in the particular case appointment of counsel would more probably lead to a just resolution of the dispute. Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986).

Carmona challenges the prison disciplinary sanctions imposed on him through a writ of habeas corpus brought pursuant to 28 U.S.C. §2241. The ordinary vehicle for a federal prisoner to seek habeas relief is 28 U.S.C. §2255, under which such a prisoner may have his sentence vacated or set aside. A writ of habeas corpus under §2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction. Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2d Cir. 1991).

Consequently, appellant's petition to expunge the Bureau's disciplinary sanctions from his record, including the loss of good time credits, as a challenge to the execution of his sentence rather than the underlying conviction, is properly brought via an application for a writ under §2241. See McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) (federal inmate's challenge to loss of good time credits is properly brought under §2241 because it is a challenge to "an action affecting the fact or duration of the petitioner's custody"); Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 758-59 (3d Cir. 1996) (prisoner's challenge to loss of good time credits following disciplinary proceeding brought pursuant to §2241); cf. Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999) (holding that prisoner may bring §1983 action, rather than habeas petition, when, as in the case where there is not a loss of good time credits, prisoner challenges disciplinary sanction that does not affect the length of confinement)....