United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
M. PURCELL, UNITED STATES MAGISTRATE JUDGE
a federal inmate appearing pro se, has filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Â§
2241, challenging the Bureau of Prison's (BOP)
calculation of his federal sentence. Doc. No. 5. The matter
has been referred to the undersigned Magistrate Judge for
initial proceedings consistent with 28 U.S.C. Â§636(b)(1)(B).
Respondent has filed a Motion to Dismiss, Petitioner
responded, and Respondent replied. Doc. Nos. 13, 16, 17. For
the following reasons, it is recommended that the Motion be
granted and the habeas relief requested in the Petition be
is currently incarcerated at the Federal Correctional
Institution, El Reno, where he is serving concurrent
sentences in two unrelated cases. Petitioner asserts that he
has completed serving one of the sentences and, as such, the
offense and conviction associated with that sentence should
no longer be considered current. The BOP, however, considers
the offense and conviction, Possession of a Firearm in
Furtherance of Drug Trafficking Crime, to still be current.
Doc. No. 5, at 2-3, 4, 6, 8.
asserts that he has completed the Residential Drug Abuse
Program (RDAP), which completion allows for early release.
See 28 C.F.R. § 550.55. However, if an inmate
has a current felony conviction for an offense that involved
the carrying, possession, or use of a firearm, then the
inmate is precluded from early release under the RDAP.
See 28 C.F.R. § 550.55(5)(ii). Petitioner
contends that he is being denied the benefit of obtaining an
early release for completion of the RDAP because the BOP is
incorrectly aggregating his concurrent sentences. Doc. No. 5,
at 6, 8.
district court is only authorized to issue a writ of habeas
corpus when the petitioner is “in custody in violation
of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). An action brought
by a federal prisoner pursuant to 28 U.S.C. § 2241 is
one that challenges the execution of a sentence. See
Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005);
McIntosh v. United States Parole Comm'n, 115
F.3d 809, 811 (10th Cir. 1997) (“[A] § 2241 attack
on the execution of a sentence may challenge some matters
that occur at prison, such as deprivation of good-time
credits and other prison disciplinary matters[.]”);
see also Jiminian v. Nash, 245 F.3d 144, 146 (2d
Cir. 2001) (“A motion pursuant to § 2241 generally
. . . [includes] such matters as the administration of
parole, computation of a prisoner's sentence by prison
officials, prison disciplinary actions, prison transfers,
type of detention and prison conditions.”).
raises two grounds to support the denial of habeas relief:
(1) Petitioner did not exhaust administrative remedies before
filing his Petition and (2) federal law precludes the relief
Petitioner seeks. Doc. No. 13. Both of Respondent's
arguments are valid.
is no express statutory exhaustion requirement in actions
arising under Section 2241. See Holman v. Booker,
No. 98-3124, 1998 WL 864018, at *2 (10th Cir. Dec. 14, 1998)
(“[Section] 2241 does not contain an explicit
exhaustion requirement[.]”). But federal common law
requires federal prisoners to exhaust available
administrative remedies before they can obtain habeas relief.
See, e.g., United States v. Wilson, 503 U.S. 329,
335 (1992) (“Federal regulations have afforded
prisoners administrative review of the computation of their
credits, and prisoners have been able to seek judicial review
of these computations after exhausting their administrative
remedies.” (internal citations omitted)); Garza v.
Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (“The
exhaustion of available administrative remedies is a
prerequisite for § 2241 habeas relief[.]);”
Williams v. O'Brien, 792 F.2d 986, 987 (10th
Cir. 1986) (a federal prisoner challenging a sentence
computation by the BOP must exhaust administrative procedures
before commencing an action under 28 U.S.C. §
“the BOP's administrative remedy protocol, a
prisoner must first seek informal redress for his grievance
and then he can proceed through the formal administrative
appeal process, which includes, in sequence, institutional,
regional, and national (central) levels of review.
See 28 C.F.R. §§ 542.13-19.”
Acosta v. Daniels, 589 Fed.Appx. 870, 872 (10th Cir.
2014); accord Garza, 596 F.3d at 1204. Petitioner
has explained that his Petition is an attempt to gather
information for use in the BOP's administrative remedy
process and is forthcoming in stating that he did not exhaust
the administrative remedies provided by the BOP. Doc. No. 5,
at 2-3; Doc. No. 16, at 1-3. It remains, though, that
Petitioner must fulfill the prerequisite of completing the
administrative remedy process before he may bring a habeas
petition. Because Petitioner has not done so, his Petition
should be dismissed.
also raises the argument that Petitioner is not entitled to
the relief sought in the Petition. In the interest of
judicial efficiency, ...