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Venzor v. Reno

United States District Court, W.D. Oklahoma

June 20, 2019

ELOY VENZOR, Petitioner,
v.
WARDEN, F.C.I., EL RENO, Respondent.

          REPORT AND RECOMMENDATION

          GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a federal inmate appearing pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 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. §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 denied.

         I. Background

         Petitioner 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.

         Petitioner 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.

         II. Legal Standard

         A 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.”).

         III. Analysis

         Respondent 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.

         A. Exhaustion

         There is no express statutory exhaustion requirement in actions arising under Section 2241.[1] 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. § 2241).[2]

         Under “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.

         B. Relief Requested

         Respondent also raises the argument that Petitioner is not entitled to the relief sought in the Petition. In the interest of judicial efficiency, ...


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