George v. Stone
| Decision Date | 19 July 2018 |
| Docket Number | CV 318-029 |
| Parties | TERRANCE GEORGE, Petitioner, v. STACEY N. STONE, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Georgia |
Petitioner, a federal inmate currently incarcerated at McRae Correctional Facility ("MCF") in McRae, Georgia, brings the above-captioned petition pursuant to 28 U.S.C. § 2241. Having considered all the relevant pleadings, for the reasons set forth below, the Court REPORTS and RECOMMENDS Respondent's Motion to Dismiss (doc. no. 10) be GRANTED, the petition be DISMISSED without prejudice, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.
On April 20, 2016, United States Immigration and Customs Enforcement ("ICE") took custody of Petitioner at the Krome Detention Center in Miami, Florida. The grand jury for the Southern District of Florida indicted Petitioner for Illegal Reentry on May 9, 2016. On May 13, 2016, after the indictment was returned, ICE turned Petitioner over to U.S. Marshal custody pending trial. On August 19, 2016, United States District Judge Ursula Ungaro sentenced Petitioner to thirty-months in prison for his offense.
Petitioner filed the present motion contending he has not been credited for the twenty-three days he spent in U.S. Coast Guard and ICE custody. (Doc. no. 1, p. 3; doc. no. 2.) Respondents move for dismissal on the basis Petitioner failed to exhaust his remedies by failing to submit a BP-11 appeal. (Doc. no. 10, pp. 3-6.) The Court agrees and GRANTS the motion, as explained below.
Prisoners seeking habeas relief, including relief pursuant to § 2241, are subject to administrative exhaustion requirements. Santiago-Lugo v. Warden, 785 F.3d 467, 474-75 (11th Cir. 2015); Davis v. Warden, FCC Coleman-USP I, 661 F. App'x 561, 562 (11th Cir. 2016). Although exhaustion of administrative remedies is not a jurisdictional requirement in a § 2241 proceeding, "that does not mean that courts may disregard a failure to exhaust and grant relief on the merits if the respondent properly asserts the defense." Santiago-Lugo, 785 F.3d at 474-75. However, "a court may skip over the exhaustion issue if it is easier to deny . . . the petition on the merits without reaching the exhaustion question." Id. at 475 (citation omitted).
The Eleventh Circuit has held there is no futility exception to the requirement to exhaust administrative remedies under § 2241. McGee v. Warden, FDC Miami, 487 F. App'x 516, 518 (11th Cir. 2012). However, in determining that no futility exception is available, the court relied on the jurisdictional nature of the exhaustion requirement for §2241 petitions. Id. Since the court held in Santiago-Lugo the exhaustion requirement is not jurisdictional for § 2241 petitions, the court has not again addressed whether a futility exception exists. Regardless, courts which apply a futility exception do so in only "extraordinary circumstances," and require the petitioner to "bear[] the burden of demonstrating the futility of administrative review." Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curiam); see also Jones v. Zenk, 495 F. Supp. 2d 1289, 1297, 1299-1300 (N.D. Ga. July 6, 2007) ().
Where, as here, Defendant has filed a motion to dismiss based on failure to exhaust administrative remedies, the Eleventh Circuit has laid out a two-step process for courts to use in resolving such motions. First, the Court looks to the factual allegations made by both parties, taking the petitioner's version as true where they conflict, and if in that light the complaint is subject to dismissal for failure to exhaust administrative remedies, Defendant's motion will be granted. Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008) (citations omitted), cert. denied, 555 U.S. 1074 (2008)).
If the petition is not subject to dismissal at the first step, then at step two the Court makes specific findings to resolve the disputed factual issues, with Defendant bearing the burden of proving Plaintiff has failed to exhaust his administrative remedies. Id. Based on its findings as to the disputed factual issues, the Court determines whether the prisoner has exhausted his available administrative remedies and thus whether the motion to dismiss should be granted. Id. Because exhaustion "is treated as a matter of abatement and not anadjudication on the merits, it is proper for a judge to consider facts outside the pleadings and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record." Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (citations omitted).
The BOP Administrative Remedy Program allows an inmate to seek formal review of any issue related to his confinement. 28 C.F.R. § 542.10. An inmate must first attempt to resolve the issue informally. 28 C.F.R. § 542.13(a). Should the inmate be unable to resolve the issue informally, he must file a formal written Administrative Remedy Request on the appropriate BP-9 form within twenty calendar days of the basis for the Request. 28 C.F.R. § 542.14. If an inmate is dissatisfied with the Warden's response to his BP-9 Request, he must submit a BP-10 Appeal to the Regional Director within twenty calendar days of the Warden's signed response. 28 C.F.R. § 542.15. If the inmate is dissatisfied with the Regional Director's response, he must submit a BP-11 Appeal, along with one complete copy of the institutional and regional filings and responses, to the General Counsel in the Central Office within thirty days of the Regional Director's signed response. Id. Once the inmate receives a response from the General Counsel, he has completed the administrative remedy process. Id.
Petitioner claims he "has exhausted all of his Administrative Remedies, although he has never received a response from Washington." (Doc. no. 2, p. 1.) However, BOP records show while Petitioner submitted a BP-10 Appeal, he submitted no other administrativeremedies at any other level. Moreover, while Petitioner attached documentation of his grievances and appeals through and including his Regional Administrative Remedy Appeal (BP-10 Appeal), he provided no proof he appealed the BP-10 decision to BOP General Counsel via a BP-11 Appeal. (Doc. no. 2, pp. 6-13.) Because Petitioner offers no tangible proof to support his assertion he filed a BP-11 appeal, he failed to exhaust his administrative remedies. Furthermore, even if the futility exception is available in the § 2241 context, Petitioner has alleged no "extraordinary circumstances" showing exhaustion would be futile, and thus, his petition should be dismissed. Santiago-Lugo, 785 F.3d at 475; McGee, 487 F. App'x at 518.
Even if Petitioner had properly exhausted his administrative remedies, he is not entitled to the jail credit he seeks. The issue Petitioner raises concerning the computation of his sentence is governed by 18 U.S.C. § 3585 and Program Statement ("PS") 5880.28 of the Sentence Computation Manual (CCCA of 1984). The relevant portion of 18 U.S.C. § 3585 provides as follows:
This code section establishes two principles of sentence crediting. First, to qualify for a credit, the defendant must have served the time as a result of either the offense underlying the sentence or an offense for which the defendant was arrested after commission of the underlying offense. 18 U.S.C. § 3585(b)(1)-(2).
Second, under no circumstances may a defendant receive double credit for time served prior to sentencing. Section 3585 expresses this principle in two ways, first by providing that a defendant shall receive credit for "any time he has spent in official detention prior to the date the sentence commences." Id. § 3585(b). A defendant must therefore receive credit equal to, but not more or less than, the time in detention prior to sentencing. Section 3585 also provides that a defendant is ineligible for a credit to the extent time in detention has "been credited against another sentence." Id. In sum, when read together, these components of § 3585 provide that one day in presentence detention equals one day of credit that can be applied only once.
"In enacting section 3585(b), 'Congress made clear that a defendant could not receive a double credit for his detention time.'" Rey v. Warden, FCC Coleman-Low, 359 F. App'x 88, 90 (11th Cir. 2009) (per curiam) (citing United States v. Wilson, 503 U.S. 329, 336-37 (1992)). PS 5880.28 similarly provides that "[c]redit will be given for time spent in official detention as a direct result of the federal offense for which the federal sentence was imposed . . . provided it has not been credited against another sentence." PS 5580.28, p. 1-16, available at www.bop.gov/policy/progstat/5880_028.pdf (last visited Jan. 31, 2018).1
Petitioner seeks credit for the twenty-three days he spent in U.S. Coast Guard and ICE custody. (Doc. nos....
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