Roberts v. Cox

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TIMOTHY M. ROBERTS,
Petitioner,
vs.
J.W. COX, IN HIS CAPACITY AS
WARDEN OF YANKTON FEDERAL
PRISON CAMP;
Respondent.
4:20-CV-04187-KES
REPORT AND RECOMMENDATION
INTRODUCTION
Pending before the court is a pro se habeas petition pursuant to 28
U.S.C. § 2241 filed by petitioner Timothy M. Roberts, an inmate at the Yankton
Federal Prison Camp in Yankton, South Dakota. See Docket No. 1. In his
petition, Mr. Roberts admits he has not yet exhausted his administrative
remedies provided by the Bureau of Prisons (“BOP”). Id. The court issued an
order to show cause asking both parties to show why Mr. Roberts’ petition
should not be dismissed for failure to exhaust his administrative remedies. See
Docket No. 5. In response, the respondent filed a motion to dismiss for failure
to exhaust administrative remedies. See Docket No. 14. Mr. Roberts filed a
response to the court’s order to show cause as well as a response in opposition
to respondent’s motion in which he argues exhaustion should be excused in
his case. See Docket Nos. 12 & 17.
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This matter was referred to this magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen
E. Schreier, United States District Judge.
DISCUSSION
A § 2241 petitioner must exhaust administrative remedies before filing.
Mathena v. United States, 577 F.3d 943, 946 (8th Cir. 2009); United States v.
Thompson, 297 Fed. App’x 561, 562 (8th Cir. 2008); United States v. Chappel,
208 F.3d 1069, 1069 (8th Cir. 2000). Exhaustion under § 2241 is not,
however, a jurisdictional prerequisite. Lueth v. Beach, 498 F.3d 795, 797 n.3
(8th Cir. 2007); Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012).
The exhaustion requirement may be waived when pursuit of
administrative remedies would be futile. Woodall v. Fed. Bureau of Prisons,
432 F.3d 235, 239 n.2 (3d Cir. 2005); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.
1994); Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993). When
the denial of the inmate’s request for relief was based on official agency policy,
exhaustion has been held to be futile. Ward, 678 F.3d at 1045-46; Taylor v.
U.S. Treasury Dep’t, 127 F.3d 470, 477 (5th Cir. 1997). Where an inmate
alleges the BOP’s regulations themselves are unconstitutional, exhaustion of
administrative remedies is excused. Totaro v. Warden Fort Dix FCI, 742 Fed.
App’x 596, 598 (3d Cir. 2018); Gallegos-Hernandez v. United States, 688 F.3d
190, 194 (5th Cir. 2012); Woodall, 432 F.3d at 239 n.2.
Mr. Roberts seeks immediate release from prison. He is currently serving
an 80-month term of incarceration imposed for a wire fraud conviction. See
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Docket No. 15 at p. 1. Mr. Roberts calculates his statutory release date to be
February 18, 2023. However, with the passage of the First Step Act (“FSA”), he
claims he has 365 days of “earned credits.” Thus, he argues, his release date
should be February 18, 2022, if the BOP would accurately calculate the credits
due to him under the FSA. Furthermore, Mr. Roberts takes into account the
six months prior to formal release whereby most inmates at the Yankton
Federal Prison Camp are released to home confinement, and he asserts the
BOP should release him on August 18, 2021. See Docket No. 1 at p. 6.
Respondent agrees with Mr. Roberts’ calculation of his statutory release
date of February 23, 2023. See Docket No. 15 at p. 1. However, he disagrees
with Mr. Roberts’ other calculations involving the FSA.
Mr. Roberts concedes that he has not exhausted his administrative
remedies, but asserts his petition presents a pure question of law so that
exhaustion should not be required. See Docket Nos. 12 and 17. Mr. Roberts
relies on a district court decision from the District of New Jersey in support of
his argument. Goodman v. Ortiz, Civ. No. 25-7582 (RMB), 2020 WL 5015613
(D.N.J. Aug. 25, 2020).
Respondent argues that exhaustion should be required of Mr. Roberts.
Firstly, respondent disputes Mr. Roberts’ assertion that he is entitled to 365
days’ earned credit under the FSA. Respondent asserts that only credits
earned by an inmate after the passage date of the FSA on December 21, 2018,
can be counted. See 18 U.S.C. § 3632(d)(4)(B). Respondent asserts that some
of Mr. Roberts’ programming occurred prior to the enactment of the FSA and
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would therefore be precluded. Therefore, respondent points out that even if
Mr. Roberts’ petition were granted, he would not be entitled to immediate
release. Under these circumstances, there is no exigency requiring the court to
circumvent the normal administrative exhaustion process.
In addition, respondent asserts that not every program or activity will
result in earned credits under the FSA. See 18 U.S.C. § 3635(3). Even if a
program theoretically qualifies for potential FSA earned credits, an inmate
must successfully complete the program in order to be awarded credits, and
those credits can be diminished if an inmate commits disciplinary infractions.
See 18 U.S.C. § 3632(e). Finally, inmates serving a sentence for certain
enumerated crimes are ineligible to earn credits under the FSA. See 18 U.S.C.
§ 3632(d)(4)(D).
Given the FSA requirements, respondent asserts Mr. Roberts’ petition
does not present a pure question of law. Rather, there are a number of factual
questions that must be answered in determining how much, if any, earned
credit should indeed be credited to Mr. Roberts under the FSA. Were the
programs or activities he is claiming qualified for FSA earned credit? Did he
successfully complete the programs? Has he had any disciplinary infractions
that would diminish his credits?
The Goodman case cited by Mr. Roberts is inapposite to the facts of his
case. In Goodman, the petitioner asserted—and the respondent did not
dispute—that all of the earned credits claimed by petitioner had been earned
after passage of the FSA, were properly counted toward FSA earned credits,
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and that petitioner had successfully completed the programs. Goodman, 2020
WL 5015613, at *2. The BOP resisted the petition on the grounds that
Congress had granted it until January 15, 2022, to phase in the FSA program.
Id. at *1. BOP accordingly argued that, even though the petitioner was entitled
to the earned credits, and even though crediting petitioner with the earned FSA
credits would result in his immediate release, the BOP nevertheless did not
have to release him until January 15, 2022. Id. at *1, 3-6. The court held that
this issue presented a narrow question of statutory interpretation which was
an exception to the rule of exhaustion. Id. at *3.
The court agrees with the Goodman decision insofar as it went. That
court held that merely because Congress gave the BOP until January 15, 2022,
to “phase in” the FSA, this did not mean that in every case the BOP could deny
FSA credits and thereby deny earlier release to all qualifying inmates until that
magic date. Id. at *3-6. The court held Congress did not deem January 15,
2022, to be the “effective date” of the FSA, but rather the latest date by which
the BOP was required to fully implement the FSA. Id. In addition, Congress
directed that inmates closest to their statutory release date should be given
priority in participation in FSA-qualified programming so that they would be
given first opportunity to earn FSA credits and secure their earlier release. Id.
For all these reasons, the Goodman court granted the petitioner relief. Id.
But Mr. Roberts’ case is not like Goodman. Respondent does not agree
that he is entitled to all the credits he is claiming. Respondent specifically
asserts that some of the credits Mr. Roberts’ is claiming are ineligible for FSA
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earned credits because they were from programs or activities completed by
Mr. Roberts prior to the enactment of the FSA. Whether Mr. Roberts
successfully completed his post-FSA programs or activities is also an
unanswered factual question on this record. Finally, even if Mr. Roberts were
credited with all his post-FSA programming credits, he would not be eligible for
immediate release, so an order granting habeas relief would not be warranted
at present. Any date the court arrived at today could potentially change if
Mr. Roberts committed a disciplinary infraction after the date of this court’s
opinion and his FSA credits were accordingly reduced.
The court agrees with respondent. This case presents a number of
factual disputes best served by creating a complete administrative record. That
can only be done if Mr. Roberts is required to finish out the administrative
exhaustion process. The court concludes he should be required to do so.
CONCLUSION
Based on the foregoing facts, law and analysis, this magistrate judge
respectfully recommends granting respondent’s motion to dismiss [Docket No.
14] and dismissing Mr. Roberts petition without prejudice so that he can
exhaust his administrative remedies. It is further recommended that
Mr. Roberts’ motion for extension [Docket No. 13] be denied as moot.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. Failure to file timely
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objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 21st day of January, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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