Velasco-Quinonez v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Roy Roger Velasco-Quinones
v. Case No. 23-cv-557-JL-AJ
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Petitioner, Roy Roger Velasco-Quinones, a prisoner
previously held at the Federal Correctional Institution in
Berlin, New Hampshire (“FCI Berlin”), filed a petition for a
writ of habeas corpus relief under 28 U.S.C. § 2241 asking the
court to direct the FCI Berlin Warden to apply credits he
asserts he earned under the First Step Act, 18 U.S.C.
§ 3632(d)(4), toward early release and transfer to a residential
reentry center or home confinement. The Warden moves to dismiss
(Doc. No. 6), citing Fed. R. Civ. P. 12(b)(6), arguing that
Velasco-Quinones failed to exhaust his administrative remedies.
For the following reasons, the district judge should deny the
Warden’s motion to dismiss.
Legal Standard
The court addresses a Rule 12(b)(6) motion to dismiss a
petition under § 2241, asserting a petitioner’s failure to
exhaust, using the same principles prescribed for a motion to
Case 1:23-cv-00557-JL-AJ Document 8 Filed 08/07/24 Page 1 of 6

2
dismiss a civil complaint asserting an affirmative defense.
Iler-Reyes v. Warden, FCI Berlin, No. 23-cv-553-SM-AJ, 2024 WL
1773616, at *1, 2024 U.S. Dist. LEXIS 76892, at *1 (D.N.H. Apr.
3, 2024) (citing Walsh v. Boncher, 652 F. Supp. 3d 161, 164 (D.
Mass. 2023)), R&R adopted, 2024 WL 1770776, 2024 U.S. Dist.
LEXIS 74280 (D.N.H. Apr. 24, 2024). Under the Rule 12(b)(6)
standard, the court must analyze whether a complaint contains
enough “factual matter” to show that the petitioner has a
plausible entitlement to relief under the prevailing law. See
Burt v. Bd. of Tr. of Univ. of R.I., 84 F.4th 42, 50 (1st Cir.
2023). In evaluating whether the petitioner pleaded a plausible
entitlement to relief, the court must accept his factual
allegations as true, and it must draw all reasonable inferences
in his favor. See id. (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). Generally, the court may consider only the facts
alleged in the petition, exhibits attached to it, and other
materials that are fairly incorporated or are subject to
judicial notice such as matters of public record. Lowe v.
Mills, 68 F.4th 706, 713-14 (1st Cir.), cert. denied, 144 S. Ct.
345 (2023); see also Butler v. Balolia, 736 F.3d 609, 611 (1st
Cir. 2013). Additionally, as a pro se litigant, Velasco-
Quinones is entitled to a liberal construction of his pleadings.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Case 1:23-cv-00557-JL-AJ Document 8 Filed 08/07/24 Page 2 of 6

3
Exhaustion of BOP remedies is an affirmative defense.
“Where a court grants a Rule 12(b)(6) . . . motion based on an
affirmative defense, the facts establishing that defense must:
(1) be ‘definitively ascertainable from the complaint and other
allowable sources of information,’ and (2) ‘suffice to establish
the affirmative defense with certitude.’” Gray v. Evercore
Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008)
(citation omitted). “In other words, before a motion to dismiss
can be granted on the basis of an affirmative defense, the
[petitioner] must ‘affirmatively plead himself out of court’ by
alleging ‘everything necessary to satisfy the affirmative
defense.’” Urena v. Travelers Cas. & Sur. Co. of Am., No. 22-
cv-200-PB, 2024 DNH 006, 2024 WL 406563, at *6, 2024 U.S. Dist.
LEXIS 18343, at *16 (D.N.H. Feb. 2, 2024).
Background
Velasco-Quinones is currently serving a sentence of 135-
months incarceration, followed by five years of supervised
release. While serving this sentence, he has participated in a
number of programs and classes that earn credits toward early
release to supervision or prerelease custody under the FSA.
On November 16, 2023, Velasco-Quinones received notice that
he had been ordered removed from the United States. FCI Berlin
Case 1:23-cv-00557-JL-AJ Document 8 Filed 08/07/24 Page 3 of 6

4
staff subsequently informed Velasco-Quinones that he had lost
his FSA credits and his release date had changed in the system.
Velasco-Quinones asserts that the BOP rescinded 365 days of
time credits previously applied toward his sentence and has
refused to grant him 490 days of FSA time credits toward his
placement in a halfway house or home confinement. According to
Velasco-Quinones, if the BOP had properly applied and not
rescinded any of his FSA time credits, he should have been
released from BOP custody in March 2024, 365 days earlier than
the BOP’s currently-projected date of release. He also asserts
that if his FSA time credits had been properly applied, he would
have been placed in a halfway house months before he filed his
petition.
Discussion
The Warden argues that Velasco-Quinones’s petition should
be dismissed because he failed to exhaust his administrative
remedies, namely, the BOP Administrative Remedy Program, before
filing this petition. In his petition, Velasco-Quinones
concedes that he did not exhaust administrative remedies but
asserts that he should be excused because he lacked sufficient
time prior to his release to request relief through the BOP
administrative process.
Case 1:23-cv-00557-JL-AJ Document 8 Filed 08/07/24 Page 4 of 6

5
Federal common law imposes an administrative remedy
exhaustion requirement on § 2241 petitions. See, e.g., Rogers
v. United States, 180 F.3d 349, 358 (1st Cir. 1999); Iler-Reyes,
2024 WL 1773616, at *2, 2024 U.S. Dist. LEXIS 76892, at
*4. Courts have recognized exceptions to the common-law
administrative exhaustion requirement for futility and
inadequacy to prevent irreparable harm. Iler-Reyes, 2024 WL
1773616, at *2, 2024 U.S. Dist. LEXIS 76892, at *4. As noted in
similar cases, the First Circuit has not addressed “whether the
proximity of a prisoner’s release date can provide grounds for
the court to waive the exhaustion requirement,” and “[o]ther
courts have reached mixed results.” Id., 2024 WL 1773616, at
*3, 2024 U.S. Dist. LEXIS 76892, at *6 (footnote omitted,
collecting cases). In Iler-Reyes, the court denied a motion to
dismiss premised on the petitioner’s failure to exhaust
administrative remedies after taking “as true each of [the
petitioner’s] assertions including the timing and likelihood of
his placement in a Residential Reentry Center, his FSA credits,
his release date, and the time it would take to exhaust BOP
remedies . . . .” Id., 2024 WL 1773616, at *3, 2024 U.S. Dist.
LEXIS 76892, at *7.
Velasco-Quinones’s petition is premised on substantially
similar allegations and circumstances as the petition in Iler-
Reyes. See id., 2024 WL 1773616, at *1-2, 2024 U.S. Dist. LEXIS
Case 1:23-cv-00557-JL-AJ Document 8 Filed 08/07/24 Page 5 of 6

6
76892, at *3-6. The reasoning and result there should apply
equally here. The Warden has not established conclusively all
elements of the affirmative defense of exhaustion, as well as
the unavailability of any exception to the exhaustion
requirement. Accordingly, the district judge should deny the
motion to dismiss (Doc. No. 6) on that basis.
CONCLUSION
The district judge should deny the Warden’s motion to
dismiss (Doc. No. 6). Any objections to this Report and
Recommendation must be filed within 14 days of receipt of this
notice. See Fed. R. Civ. P. 72(b)(2). The objection period may
be extended upon motion. Only those issues raised in the
written objections “‘are subject to review in the district
court,’” and any issues “‘not preserved by such objection are
precluded on appeal.’” Santos-Santos v. Torres-Centeno, 842
F.3d 163, 168 (1st Cir. 2016) (citations omitted).
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 7, 2024
cc: Roy Roger Velasco-Quinones, pro se
Anna Dronzek, Esq.
Case 1:23-cv-00557-JL-AJ Document 8 Filed 08/07/24 Page 6 of 6