Findings, Conclusions and Recommendations

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

ROCKY LEE BENTON, §

 Petitioner, §

§

v. § Civil Action No. 4:05-CV-0583-Y

§

COLE JETER, Warden, §

FMC-Fort Worth, §

Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for

the Northern District of Texas. The findings, conclusions and recommendation of the United States

Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. §

2241. 

B. PARTIES

Petitioner Rocky Lee Benton, Reg. No. 27206-177, is a federal prisoner who is currently

incarcerated in the Federal Medical Center in Fort Worth, Texas (FMC-Fort Worth).

The Respondent is Cole Jeter, Warden of FMC-Fort Worth.

 

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C. PROCEDURAL HISTORY

On October 7, 2002, following a guilty plea, Benton was sentenced in this Court to a term

of 33 months’ imprisonment on one count of felon in possession of a firearm in violation of 18

U.S.C. § 924(e)(1). See CM/ECF, Criminal Docket for Case # 4:02-CR-62-ALL, docket entries for

July 10, 2002 & October 7, 2002. Benton asserts that he was then returned to state custody to

answer pending state criminal charges for the same offense. (Petition at 5; Pet’r Motion to Modify

Sentence, at 1-2.) According to Benton, he was sentenced by the state court to fifteen years’

confinement in the Texas Department of Criminal Justice (TDCJ), where he remained incarcerated

until paroled from TDCJ on December 7, 2004. He asserts he was then returned to federal custody

to serve his federal sentence of 33 months. 

The federal criminal judgment was silent as to whether Benton’s 33-month federal sentence

was to run concurrently with or consecutively to any state sentence to which he might be subject.

By way this petition, Benton seeks to have his federal sentence run concurrently with his state

sentence and he seeks credit for the time he spent in temporary federal custody from May 6, 2002

to October 7, 2002. The government has filed a motion to dismiss for failure to exhaust.

D. DISCUSSION

Federal prisoners are required to exhaust administrative remedies before filing a petition

under 28 U.S.C. § 2241. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993); Fuller v. Rich,

11 F.3d 61, 62 (5th Cir. 1994); United States v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990); Bureau

Program Statement 5160.05 (Resp’t Appendix A.). An administrative remedy procedure for federal

prisoners is provided at 28 C.F.R. §§ 542.10-542.19. Under this administrative procedure, if

informal resolution fails, the inmate must pursue a three-level process within the prescribed time

 

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intervals. Typically, the inmate must formally appeal to the Warden, via a Request for

Administrative Remedy, commonly referred to as a BP-9; then to the Regional Director, via a form

commonly referred to as a BP-10; and finally to the Office of General Counsel, via a form

commonly referred to as a BP-11. Administrative remedies have not been exhausted until the

inmate’s claim has been filed at all levels and has been denied at all levels. See 28 C.F.R. § 542.15;

Rourke, 11 F.3d at 49.

The government has submitted the declaration of Alberto Munguia, Supervisory Attorney

at FMC-Fort Worth. (Resp’t Appendix B.) Munguia avers that, by way of his employment, he has

access to records maintained by the Bureau of Prisons and that Benton has not exhausted his

administrative remedies as to the issues raised in this petition. (Id.) Nor has Benton alleged or

presented evidence through exhibits that he has exhausted the administrative remedy process

relevant to the issues presented.

The purpose of exhaustion is to allow the federal agency being challenged an opportunity

to correct its own error without court intervention. Smith v. Thompson, 937 F.2d 217, 219 (5th Cir.

1991). Exceptions to the exhaustion requirement are appropriate only in extraordinary

circumstances where the available administrative remedies either are unavailable or wholly

inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a

patently futile course of action. Fuller, 11 F.3d at 62 (quoting Hessbrook v. Lennon, 777 F.2d 999,

1003 (5th Cir. 1985)). Such showing not having been demonstrated by Benton, he cannot now

proceed in this court in habeas corpus. Accordingly, dismissal of this federal habeas corpus

proceeding for lack of exhaustion is warranted so that Benton can fully exhaust his administrative

 

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remedies and then return to this court, if he so desires, after exhaustion has been properly and fully

accomplished.

II. RECOMMENDATION

The government’s motion to dismiss should be granted, and Benton’s petition for writ of

habeas corpus should be dismissed without prejudice on exhaustion grounds.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION

AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is extending the deadline within which to file

specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,

and recommendation until February 16, 2006. The United States District Judge need only make a

de novo determination of those portions of the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. §

636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual

finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice,

from attacking on appeal any such proposed factual finding or legal conclusion accepted by the

United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

 

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IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until February 16, 2006,

to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby

is returned to the docket of the United States District Judge. 

SIGNED January 26, 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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