Vega v. Bergami
| Decision Date | 06 July 2020 |
| Docket Number | EP-20-CV-127-DCG |
| Parties | RUBEN VEGA, Reg. No. 09643-073, Petitioner, v. THOMAS E. BERGAMI, Warden, Respondent. |
| Court | U.S. District Court — Western District of Texas |
Ruben Vega seeks Court intervention on his behalf in a pro se "Omnibus Motion." Pet'r's Pet., ECF No. 1. He asks the Court to grant him pre-sentencing credit for time served in state custody, recommend that he serve the maximum amount of time in a residential re-entry center, and order his placement in home confinement due to the COVID-19 pandemic. Id. at 1. His motion, which the Court construes as a petition for a writ of habeas corpus under 28 U.S.C. § 2241, is dismissed for the reasons discussed below. See Hussain v. Bos. Old Colony Ins. Co., 311 F.3d 623, 633 n. 39 (5th Cir. 2002) ().
Vega is a 40-year-old prisoner at the La Tuna Federal Correctional Institution (FCI La Tuna) in Anthony, Texas.1 https://www.bop.gov/inmateloc/ (search for Reg. No. 09643-073) (last visited July 1, 2020). His projected release date is January 3, 2022. Id.
Vega was arrested by local authorities in South Dakota for a state parole violation on September 3, 2003. Pet'r's Pet. 17 (Regional Administrative Remedy Appeal), ECF No. 1.His parole was revoked and he served time in state custody until his release, once again to parole, on April 23, 2004. Id.
Meanwhile, on October 31, 2003, he pled guilty to conspiracy to possess with intent to distribute more than 500 grams of methamphetamine in the United States District Court for the District of South Dakota. United States v. Vega, 4:03-CR-40081-LLP-1 (D. S. D.). Vega v. Niklin, No. EP-18-CV-96-DCG, 2018 WL 1750746, at *1 (W.D. Tex. Apr. 10, 2018) (quoting Vega's petition in EP-18-CV-96-DCG). As a result, he was sentenced as a career offender to 262 months' imprisonment on January 26, 2004. Id. at *2.
Vega applied to the Bureau of Prisons (BOP) for pre-sentencing credit toward his federal sentence. Pet'r's Pet. 11 (Resp. from Correctional Program Specialist), ECF No. 1. He was granted credit for time served from his sentencing on January 26, 2004, until his release on parole by state authorities on April 23, 2004, after the BOP Designation and Sentence Computation Center (DSCC) contacted the sentencing court and determined "a concurrent designation was appropriate." Id.
Vega now asks the Court to order Thomas E. Bergami, the Warden at FCI La Tuna, to give him credit toward his federal sentence, pursuant to 18 U.S.C. § 3585, for the time he served in state custody after his arrest on September 3, 2003, until his sentencing by the federal court on January 26, 2004. Id. at 4. He further asks the Court to recommend his placement in a pre-release residential reentry center for the maximum amount of time possible—twelve months—under 18 U.S.C. § 3624. Id. at 7-8. Notably, Vega does not claim Bergami denied him placement or ordered his residence in such a facility for less than twelve months. He finally asks, in the alternative, for the Court to order his placement in home confinement due to the COVID-19 pandemic, pursuant to 18 U.S.C. § 3582(c)(1)(A). Id. at 9.
Vega failed to pay the $5.00 filing fee for a § 2241 petition. However, he was represented by a Federal Public Defender in his criminal case. He presumably has limited financial resources. He will accordingly be permitted to proceed without prepaying costs or fees in this matter.
A petitioner may attack the manner in which his sentence is being executed in the district court with jurisdiction over his custodian pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001); Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). However, "[h]abeas corpus relief is extraordinary and 'is reserved for transgressions of constitutional rights and for a narrow range of injuries that . . . if condoned, result in a complete miscarriage of justice.'" Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). As a result, a petitioner is entitled to § 2241 relief only to remedy a restraint of liberty in violation of the constitution, treaties, or laws of the United States. United States v. Hayman, 342 U.S. 205, 211-12 & n.11 (1952). To prevail, a habeas corpus petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c).
During its initial screening of a § 2241 petition, a reviewing court accepts a petitioner'sallegations as true. 28 U.S.C. § 2243; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). It also evaluates a petition presented by pro se petitioner under more a lenient standard than it applies to a petition submitted by counsel. Erickson v. Pardus, 551 U.S. 89, 94 (2007). But it must still find "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 556. It must "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)).
An initial issue which a court must address when screening a § 2241 petition is whether the petitioner has exhausted his administrative remedies. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curiam). A petitioner seeking habeas relief must first exhaust all administrative remedies which might provide appropriate relief before seeking judicial review. Id.; Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993). Exhaustion means "proper exhaustion," including compliance with all administrative deadlines and procedures. Cf. Woodford v. Ngo, 548 U.S 81, 90 (2006) ().
The BOP uses a multi-tiered administrative remedy program "to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement." 28 C.F.R. § 542.10(a). First, the inmate must attempt to resolve the issue informally with the prison staff. Id. § 542.13(a). Then, if the inmate cannot resolve the complaint informally, he must file aformal written administrative remedy request on a BP-9 form directed to the prison warden. Id. § 542.14. Any adverse decision by the warden must be appealed to the appropriate regional director by filing a BP-10 form. Id. § 542.15(a). The final step in the administrative review process is an appeal to the Office of General Counsel on a BP-11 form. Id. If an inmate does not receive a response within the time allotted, he may consider the absence of a response a denial at that level and proceed to the next level. Id. An inmate may seek relief in federal court only after he has exhausted all levels of the administrative review process. See Lundy v. Osborn, 555 F.2d 534, 535 (5th Cir. 1977) ().
"Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action." Fuller, 11 F.3d at 62 (internal citations omitted). Exceptions may be made only in "extraordinary circumstances," and the petitioner bears the burden of demonstrating the futility of administrative review. Id.
Vega had the BOP administrative review process, as described above, available to address his claims. He provided evidence that he appealed the decision concerning his pre-sentencing credit to the regional director. Pet'r's Pet. 17 (Regional Administrative Remedy Appeal), ECF No. 1. He offered evidence that he asked the DSCC to reconsider its calculation of his sentence. Id. at 11 (Resp. from Correctional Program Specialist). He delivered evidence that he requested but was denied home confinement at the unit level. Inmate Request to Staff 2, ECF No. 2. Notably absent from his documentation was any evidence that he pursued his claimto the Office of General Counsel. Vega conceded he had not exhausted his claims. Id. at 7-8. He argued his "failure to exhaust administrative remedies should be excused due to futility. Id. at 7. He also suggested the BOP would not timely respond to his claims. Id.
If Vega had meritorious claims, there is nothing to suggest that the BOP would not have afforded him relief through its administrative review process. And if the BOP made an error concerning his requests for time credit, residential reentry center placement or home confinement, he should give the BOP the opportunity to correct those errors before seeking judicial intervention. See Vega v. Thompson, 937 F.2d 217, 219 (5th Cir. 1991) (). Indeed, an attempt by Vega to exhaust through the BOP administrative review process would clearly not be a patently futile course of action. See Overshown v. Upton, 466 F. App'x 361 (5th Cir. 2012) (citing United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992) (...
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