Ritchie v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jamaro J. Ritchie
v. 	Case No. 24-cv-16-JL-TSM
Warden, F.C.I. Berlin
REPORT AND RECOMMENDATION
Jamaro J. Ritchie, proceeding pro se, who is an inmate at the Federal Correctional
Institution in Berlin, New Hampshire, filed a petition for habeas corpus relief pursuant to 28 U.S.C.
§ 2241 after receiving notice that a final order of removal had been entered against him. Ritchie
challenges the validity of the final order of removal that he alleges is being used to deprive him of
credit under the First Step Act (“FSA”).1 The Warden moves to dismiss the petition, or in the
alternative for summary judgment. Ritchie filed a response to the motion, in which he continues
to challenge the validity of the final order of removal, argues that administrative exhaustion would
be futile, and raises a new claim that he is entitled to release to home confinement under the Second
Chance Act.2
1 Under the FSA, an eligible prisoner, “who successfully completes evidence-based
recidivism reduction programming or productive activities, shall earn time credits.” 18 U.S.C.
§ 3632(d)(4); Schmitt v. Bowers, 23-cv-13203-ADB, 2024 WL 1540814, at *2 (D. Mass. Apr. 9,
2024).
2 The Second Chance Act and the CARES Act, as provided in 18 U.S.C. §§ 3642(c),
authorize the Bureau of Prisons to permit prisoners to serve part of their term of imprisonment in
home confinement or a residential reentry center. See Diaz-lozano v. B.M. Trate, Case No. 22-
014039JLT, 2022 WL 17417716, at *1 (E.D. Cal. Dec. 5, 2022); Winegar v. Boncher, Case No.
22-11632-FDS, 2022 WL 17404897, at *2 (D. Mass. Dec. 2, 2022).
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For the reasons that follow, the district judge should dismiss that part of the petition in
which Ritchie challenges the validity of the final order of removal and dismiss the new claim under
§ 3642(c) for lack of jurisdiction and grant the Warden’s motion for summary judgment with
respect to the remainder of the petition.
Standard
Although the Warden titled the motion in the alternative as a motion to dismiss and for
summary judgment, in the supporting memorandum, the Warden addresses only the standard for
a motion for summary judgment, provides supporting evidence, and appears to proceed under
Federal Rule of Civil Procedure 56(a). 	For that reason, the court will deem the motion to seek
summary judgment.
“Summary judgment is appropriate only if ‘there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” Gattineri v. Wynn MA, LLC, 93
F.4th 505, 509 (1st Cir. 2024) (quoting Fed. R. Civ. P. 56(a)). A genuine factual dispute exists if
“the evidence is such that a reasonable jury could resolve the point in the favor of the non-moving
party,” and a material fact is one “that has the potential of affecting the outcome of the case.”
Hamdallah v. CPC Carolina PR, LLC, 91 F.4th 1, 16 (1st Cir. 2024) (internal quotation marks
omitted). In making that determination, the court draws all reasonable inferences in favor of the
nonmoving party from the properly supported facts in the record. Lech v. von Goeler, 92 F.4th
56, 64 (1st Cir. 2024). Based on that view of the record, the court must determine whether the
moving party has shown that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Background
Ritchie pleaded guilty to two counts of possession of a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) in the United States District Court for
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the Middle District of Florida. United States v. Ritchie, 07-cr-340-PAL-AAS (M.D. Fla. May 9,
2008). He was originally sentenced to consecutive sentences of 66 months and 300 months. His
300-month sentence was subsequently reduced, and his consecutive sentences were aggregated
into one term of imprisonment for 240 months to be followed by 60 months of supervised
release.
In his petition, Ritchie alleges that on May 17, 2010, he received an immigration detainer
Notice of Action that an investigation had been initiated to determine whether he was subject to
removal. He alleges that there were no immigration proceedings after receiving that detainer. On
December 23, 2023, Ritchie received an immigration detainer Notice of Action from the
Department of Homeland Security, which stated that probable cause existed that Ritchie was a
removable alien based on a final order of removal against him. He filed the petition to initiate this
action on January 16, 2024.
Discussion
Ritchie alleges in his petition that the Notice of Action issued in December of 2023, citing
the final order of removal against him, was “apparently ginned up to block the award of (FSA)
First Step Act credit and release from prison.” 	Doc. no. 1, at 1. He further alleges that the
referenced final order of removal is invalid because it was issued without the required process and
procedures. The Warden moves for summary judgment on the grounds that Ritchie did not exhaust
administrative remedies for relief under § 2241, that Ritchie is subject to a valid final order of
removal that bars FSA credits, and that he is otherwise ineligible to receive FSA credits because
he was convicted of violating 18 U.S.C. § 924(c). In his response to the Warden’s motion for
summary judgment, Ritchie raises a new issue or claim, not alleged in the petition, that his program
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review shows that he is eligible for placement under the Second Chance Act.3 Because Ritchie’s
challenge to the validity of the removal order raises a jurisdictional issue, the court first addresses
that claim.4
A. Final Order of Removal
An inmate who is subject to a final order of removal is not eligible to earn FSA time credits.
18 U.S.C. § 3632(d)(4)(E)(i). In his petition, Ritchie challenges the validity of the final order of
removal that is cited in the Notice of Action received on December 23, 2023. The Warden argues
in his motion for summary judgment that the final order of removal is valid and bars Ritchie’s
eligibility for FSA credits.
This court lacks jurisdiction to consider Ritchie’s challenge to the validity of the final order
of removal through his § 2241 petition. 8 U.S.C. § 1252(a)(5); see also Nasrallah v. Barr, 590 U.S.
573, 580 (2020); Ishak v. Gonzales, 422 F.3d 22, 28-29 (1st Cir. 2005) (explaining that district
courts have no habeas jurisdiction over final orders of removal). For that reason, the district judge
should not address or decide the validity of the final order of removal that is cited in the December
23, 2023-detainer.
B. Release to Home Confinement
As noted above, Ritchie raises a new claim in his response to the motion for summary
judgment that was not alleged in his petition. While it is possible to treat a new claim raised for
3 Ritchie also alleges that the BOP took away five months of his “good time” in 2017,
which moved his release date, but that issue, if Ritchie intended to raise another claim, is not
sufficiently developed to allow review.
4 Although the Warden did not address the jurisdictional issue, the court must resolve
questions of subject matter jurisdiction sua sponte, when necessary. Fed. R. Civ. P. 12(h)(3);
Amyndas Pharms., S.A. v. Zealand Pharma A/S, 48 F.4th 18, 27 (1st Cir. 2022).
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the first time in an objection to summary judgment as a motion to amend, that procedure, it is not
necessary here because the claim cannot be adjudicated through a § 2241 petition. See Kunelius v.
Town of Stow, 588 F.3d 1, 19 (1st Cir. 2009).
Section 3624(c)(2) authorizes the Bureau of Prisons (“BOP”) to place a prisoner in home
confinement for a portion of the sentence imposed. That decision, however, “lies within the sole
discretion of the BOP, and is not reviewable by [the U.S. District] Court.’” Abdel-Rahman v.
Warden, FCI Berlin, Case No. 22-CV-333-SM, 2023 WL 4868529, at *1 (D.N.H. July 6, 2023),
report and recommendation approved sub nom. Abdel-Rahman v. FCI Berlin, No. 22-CV-333-
SM, 2023 WL 4866361 (D.N.H. July 30, 2023) (quoting Peters v. Boncher, Case No. 22-11503-
JGD, 2023 U.S. Dist. LEXIS 12526 at *8, 2023 WL 387612, at *4 (D. Mass. Jan. 25, 2023)
(collecting cases)); see also United States v. Orton, Case No. 12-117-JAW, 2023 WL 8812557, at
*3 (D. Me. Dec. 20, 2023). Therefore, the court lacks authority to consider Ritichie’s claim under
§ 3624(c).
C. FSA Credit
The Warden argues that even if the final order of removal were invalid, Ritchie cannot
succeed on the § 2241 petition because he failed to exhaust administrative remedies and because
he is not eligible to earn or receive FSA time credits due to his convictions under § 924(c). The
court agrees with the Warden on both arguments.
1. Administrative exhaustion
Federal common law imposes a requirement that § 2241 petitioners exhaust administrative
remedies. Rogers v. United States, 180 F.3d 349, 358 (1st Cir. 1999); Yancey v. Warden, FMC
Devens, 22-cv-11790-DLC, --- F. Supp. 3d ---, 2024 WL 100932, at *5 (D. Mass. Jan. 9, 2024).
Exhaustion requires the petitioner to fully comply with the BOP’s administrative process for relief,
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provided in 28 C.F.R. § 542.10, et seq., before filing a § 2241 petition. Id. While exceptions to
the exhaustion requirement are recognized, the petitioner bears the burden of showing that an
exception applies. Calderon Hernandez v. Warden FMC Devens, No. 23-113330-MPK, 2023 WL
5939634, at *4 (D. Mass. Sept. 12, 2023).
Ritchie contends that administrative remedies are futile in his case because he is
challenging the BOP’s official policy to deny FSA credit to prisoners who are subject to a final
order of removal and because he previously found, in a different situation, that the administrative
process did not work.5 Generally, exhaustion is not excused when a prisoner challenges the
Warden’s determination that the prisoner is not eligible for FSA credits due to a final order of
removal. See Duyzings v. Warden, FCI Fort Dix, Case No. 23-21574 (RMB), 2024 WL 1406647,
at *2 (D.N.J. Apr. 2, 2024); Mirafuentes-Valdez v. FCI Elkton, Case No. 23-cv-1289, 2024 WL
872283, at *3 (N.D. Ohio Jan. 29, 2024). In particular, exhaustion is not excused when, as here,
the prisoner has not even begun or attempted to begin the administrative process. Vega v. Doerer,
Case No. 23-09432-CAS, 2024 WL 1349315, at *3 (C.D. Cal. Feb. 14, 2024); Calderon Hernandez
v. Warden FMC Devens, Case No. 23-11330-MPK, 2023 WL 5939634, at *5 (D. Mass. Sept. 12,
2023). Further, the prior situation that Ritchie cites to show futility involved a dispute with his
case manager, which is not the issue presented here.
Ritchie has not shown that administrative exhaustion would be futile in this instance. Even
if he made the necessary showing, however, his petition would still be denied because he is
ineligible for FSA time credits.
5 Ritchie also mentions irreparable injury, but he does not identify what injury he would
suffer if he were required to complete administrative exhaustion.
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2. Ineligible for FSA time credits
The Warden also argues that Ritchie is ineligible for FSA time credits because he was
convicted of violating § 924(c)(1)(A). The FSA provides that “[a] prisoner is ineligible to receive
time credits . . . if the prisoner is serving a sentence for conviction under . . . Section 924(c), relating
to unlawful possession or use of a firearm during and in relation to any crime of violence or drug
trafficking crime.” 18 U.S.C. § 3632(d)(4)(D). 	Ritchie pleaded guilty to and was convicted of
two counts of possession of a firearm during and in relation to a crime of violence in violation of
§ 924(c)(1)(A), which makes him ineligible for FSA time credits. 	See Byrd v. Warden, 23-cv-
154-LM, 2023 WL 2898936, at *3 (D.N.H. Feb. 28, 2023). Accordingly, the district judge should
grant summary judgment in favor of the Warden on this additional basis.
Conclusion
Based on the foregoing, the district judge should dismiss for lack of jurisdiction that part
of Ritchie’s petition (doc. no. 1) that challenges the validity of the final order of removal. The
district judge should also dismiss the claim based on § 3642(c), which Ritchie raised in his
objection to the Warden’s motion for summary judgment, due to lack of jurisdiction. The district
judge should grant the Warden’s motion for summary judgment (doc. no. 4) on the remainder of
the petition.
Any objections to this Report and Recommendation must be filed within twenty-one days
of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The twenty-one-day period may be extended
upon motion. 	Only those issues raised in the objection to this Report and Recommendation are
subject to review in the district court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such objection(s) are precluded on
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appeal. See id. Failure to file any objections within the specified time waives the right to appeal
the district court's order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Talesha L. Saint-Marc
United States Magistrate Judge
April 24, 2024
cc: 	Jamaro J. Ritchie, pro se
Michael T. McCormack, AUSA
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