Sullivan v. United States
| Docket Number | 5:20-HC-02071-M |
| Decision Date | 03 March 2022 |
| Parties | DUREYLL LEV ARIA SULLIVAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of North Carolina |
This cause is before the court for consideration of respondent's motion to dismiss for failure to state a claim or, in the alternative, for summary judgment. Mot. [D.E. 25].
Procedural History:
On April 27, 2020, Dureyll Levaria Sullivan ("petitioner"), then an inmate at F.C.I. Butner filed pro se in the United States District Court for the District of South Carolina a petition seeking a writ of habeas corpus under 28 U.S.C. § 2241. See Pet. [D.E. 1].
On April 30, 2020, the action was transferred to this court. See Order [D.E. 2].
On May 21, 2020, pursuant to an order of deficiency, Order [D.E. 5] petitioner filed an amended petition, and moved for leave to proceed without prepayment of fees. See [D.E. 6, 7].
On February 10, 2021, the court conducted its initial review construed the petition as a request for nunc pro tunc designation, and allowed the action to proceed. Order [D.E. 15].
On April 29, 2021, respondent filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment, Mot. [D.E. 25], a memorandum in support, [D.E. 26], a statement of material facts, [D.E. 27], and an appendix, [D.E. 28]. Also, pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified petitioner about the pending motion, the response deadline, and the consequences of failing to respond. [D.E. 29].
Petitioner responded in opposition. [D.E. 30, 32].
Background:
On April 30, 2007, petitioner was arrested by South Carolina state authorities for Robbery/Armed Robbery and Robbery while Armed. Resp't App., Ex. 1 [D.E. 28-1] at 1-2 (Anderson County Tenth Judicial Circuit Public Index). Also a criminal complaint in the United States District Court for the District of South Carolina charged petitioner with Armed Bank Robbery, in violation of 18 U.S.C. § 2113(a), (d), and Possession of a Weapon in Furtherance of a Violent Crime, in violation of 18 U.S.C. § 924(c), and he was temporarily transferred from state to federal custody pursuant to a writ of habeas corpus ad prosequendum for criminal proceedings. See United States v. Sullivan. No. 8:07-cr-00553-HMH-2 (D.S.C. April 30, 2007), [D.E. 1, 2].
On May 8, 2007, an indictment charged petitioner with Armed Bank Robbery and aiding and abetting, in violation of 18 U.S.C. §§ 2, 2113(a), (d) (Count 1), and Possession of a Weapon in Furtherance of a Violent Crime and aiding and abetting, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (Count 2). Id., [D.E. 16]. Petitioner pleaded guilty to both counts. Id., [D.E. 45].
On September 17, 2007, petitioner was sentenced to consecutive terms of 37-months' as to Count 1 and 84-months' as to Count 2, totaling 121 months' imprisonment. Id., J. [D.E. 59]; Resp't App., Ex. 2 [D.E. 28-2] at 1-5. Petitioner then was returned to the primary custody of state authorities, and the federal judgment was filed as a detainer. See Resp't App., Ex. 3 [D.E. 28-3].
On December 2, 2008, the South Carolina state court sentenced petitioner to 15 years for Robbery/Armed Robbery, and 15 years for Robbery while Armed and ordered these two 15-year terms to run concurrent to each other and concurrent to petitioner's federal terms. See Resp't App., Ex. 4 [D.E. 28-4] (State Court Judgment). Petitioner then remained in the primary jurisdiction of the State of South Carolina until his parole on December 23, 2019, at which time the primary jurisdiction transferred to the federal government. See Resp't App., Ex. 5 [D.E. 28-5] at 1-3 (Federal Bureau of Prisons ("BOP") Sentence Monitoring Computation Data).
Arguments:
Petitioner's argument, distilled, is his entire federal sentence should be served concurrently with his state sentence and the BOP should effectuate a concurrent sentence by granting him a nunc pro tunc designation to the state facility where he served his state sentence. See [D.E. 1, 6].
Respondent argues that: 1) petitioner failed to exhaust administrative remedies; 2) the BOP properly computed petitioner's sentence; arid 3) the BOP properly exercised its discretion in partially granting petitioner's request for nunc pro tunc designation. See Resp't Mem. [D.E. 26].
In response, petitioner argues that, as to exhaustion, he complained to F.C.I. Butner staff members about his federal sentence computation and followed staff advice to fill out an inmate request and file the instant action for nunc pro tunc designation. Pet'r's Resp. [D.E. 32] at 1-2. As to sentence computation, petitioner asserts he was "under the impression that [his] time (state/federal).. . ran together," and, on the day he was sentenced, the state court gave him credit for the time served and ordered that his 15-year sentences run concurrently with his ten-year federal sentence. Id. at 2. Petitioner asserts: "The Government had more than enough time to correct my sentence." Id. at 3. Petitioner also contends, the "day after [petitioner's co-defendant] was sentenced to 10 state ran concurrent with his federal sentence [sic]," the U.S. Marshal IcL Petitioner queries why the same wasn't done for him. Id Discussion:
Section 2241 empowers the court to grant habeas relief to a prisoner who "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(a), (c).
The court first considers respondent's argument that petitioner failed to exhaust his administrative remedies.
Prior to hearing a § 2241 petition, federal courts require exhaustion of alternative remedies, including administrative appeals. See e.g., Boumediene v. Bush, 553 U.S. 723, 793 (2008); Timms v. Johns. 627 F.3d 525, 531 (4th Cir. 2010). The exhaustion requirement is a prudential restraint, not a statutory requirement. Dragenice v. Ridge, 389F.3d92, 98 (4th Cir. 2004). It allows agencies to exercise autonomy and discretion and prevents premature judicial intervention. Darby v. Kemp. 957 F.2d 145, 147 (4th Cir. 1992), rev'd on other grounds sub nom. Darby v. Cisneros. 509 U.S. 137 (1993).
Rodriguez v. Ratledge, 715 Fed.Appx. 261, 265 (4th Cir. 2017) (per curiam) (unpublished).
Successfully exhausting administrative remedies "means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Woodford v. Ngo, 548 U.S. 81, 90 (2006) (internal citations and quotation marks omitted). "[A] prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require." Id. at 93. Failure to exhaust administrative remedies is an affirmative defense that a defendant must plead and prove. See Jones v. Bock, 549 U.S. 199, 216 (2007); Wilcox v. Brown, 877 F.3d 161, 167 (4th Cir. 2017); Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017).
The BOP has a multi-tiered Administrative Remedy Program. See 28 C.F.R. §§ 542.10, et seq. An inmate first seeks to informally resolve his complaint by filing Form BP-8 and, if the matter cannot be resolved informally, the inmate must file a formal written "Administrative Remedy Request" (Form BP-9) within twenty days following the date on which the basis for the complaint occurred. 28 C.F.R. §§ 542.13, 542.14(a). An inmate then may appeal the decision to the Regional Director within twenty days of the date of the Warden's BP-9 response by filing Form BP-10. 28 C.F.R. § 542.15. Finally, the inmate may appeal the BP-10 decision to the General Counsel within thirty days of the Regional Director's response by filing Form BP-11. Id. If the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames, including extensions of time, the inmate may consider the absence of a response to be a denial and may then appeal to the next level. 28 C.F.R. § 542.18.
Although "a prisoner does not exhaust all available remedies simply by failing to follow the required steps so that remedies that once were available to him no longer are," Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citations omitted), exhaustion is mandatory only if the grievance process is "available" to the prisoner, Ross v. Blake. 578 U.S. 632, 642 (2016). "[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore, 517 F.3d at 725. Prison grievance procedure is not "available" when: (1) it "operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) it is "so opaque that it becomes, practically speaking, incapable of use"; and (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross. 578 U.S. at 643-44 (citations omitted).
The record reflects that petitioner did not exhaust his administrative remedies for claims as to his sentence computation or nunc pro tunc designation. See Resp't App., Ex. 6, Kelly Forbes Decl., [D.E. 28-6] at \6 (declaring that, as of April 26, 2021 petitioner's sole administrative remedy request involved an appeal from an inmate disciplinary hearing). Further, although petitioner asserts that he took steps recommended by F.C.I. Burner staff to challenge his sentence computation, see Pet'r's Resp. [D.E. 32] at 1-2, petitioner...
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