1

 Title 18, Section 3624(b)(1) of the United States Code, provides, in pertinent part:

[A] prisoner who is serving a term of imprisonment of more than one year . . . may

receive credit toward the service of the prisoner's sentence, beyond the time served,

of up to 54 days at the end of each year of the prisoner's term of imprisonment,

beginning at the end of the first year of the term, subject to determination by the

Bureau of Prisons that, during that year, the prisoner has displayed exemplary

compliance with institutional disciplinary regulations . . . [C]redit for the least year

or portion of a year of the term of imprisonment shall be prorated and credited

within the last six weeks of the sentence.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LORENZO REYES, JR. §

§

Petitioner, §

§

VS. § 

§ NO. 3-05-CV-1214-K 

DAN JOSLIN, Warden §

Federal Correctional Institution, §

Seagoville, Texas §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Lorenzo Reyes, Jr., appearing pro se, has filed an application for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be

dismissed without prejudice for failure to exhaust administrative remedies.

I.

Petitioner is serving a 132-month prison sentence for engaging in a continuing criminal

enterprise in violation of 21 U.S.C. § 848. Since his incarceration in 1997, petitioner has been

awarded a total of 517 days of good time credit, calculated at the rate of 54 days per year, based

upon actual time served.1 This makes his projected release date September 21, 2006. However,

 

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18 U.S.C. § 3624(b)(1). Under regulations promulgated by the Bureau of Prisons, an inmate's projected release date is

advanced upon the completion of each year of imprisonment by the number of days of good conduct time that the inmate

receives for that year. See 28 C.F.R. § 523.20; BOP P.S. 5880.28. Good conduct time is prorated if a full year or less

remains to be served. Id.

petitioner maintains that good conduct time should be based on the total length of the sentence

imposed, not the amount of time served. Under the method of calculation proposed by petitioner,

he would be entitled to 54 days of good time credit for each year of his 11-year sentence, or 594

days. That would accelerate his release date to July 6, 2006. By this action, petitioner seeks an

additional 77 days of good time credit.

As part of his answer, respondent argues that this case should be dismissed because petitioner

has failed to exhaust available administrative remedies. The court will address the exhaustion issue

first.

II.

A federal prisoner must typically exhaust all administrative remedies before seeking judicial

relief. See McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291

(1992).

The Supreme Court has long recognized that exhaustion "serves the twin purposes of protecting

administrative agency authority and promoting judicial efficiency." Id., 112 S.Ct. at 1086. These

concerns apply with particular force "when the action under review involves exercise of the agency's

discretionary power or when the agency proceedings in question allow the agency to apply its

special expertise." Id. (citing cases). Moreover, "[w]hen an agency has the opportunity to correct

its own errors, a judicial controversy may well be mooted, or at least piecemeal appeals may be

avoided." Id. (citing cases). See also Garner v. U.S. Dep't of Labor, 221 F.3d 822, 825 (5th Cir.

2000), cert. denied, 121 S.Ct. 1230 (2001).

The exhaustion requirement applies to the computation of sentence credit awards. See, e.g.

 

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Rodriguez v. Lamer, 60 F.3d 745, 747 (11th Cir. 1995); United States v. Pelaez, 930 F.2d 520, 524

(6th Cir. 1991); United States v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990); Chua Han Mow v.

United States, 730 F.2d 1308, 1313 (9th Cir. 1984), cert. denied, 105 S.Ct. 1403 (1985); Sanchez

v. Wendt, 2003 WL 22327877 at *1 (N.D. Tex. Oct. 8, 2003) (Kaplan, J.), rec. adopted, 2003 WL

22961222 (N.D. Tex. Oct. 27, 2003) (Lynn, J.). The Bureau of Prisons has established an

Administrative Remedy Program whereby inmates can "seek formal review of an issue relating to

any aspect of [their] confinement." 28 C.F.R. § 542.10. A prisoner must present his claim to the

prison warden and appeal any adverse decision to the BOP Regional Director and General Counsel.

Id. § 542.15(a). Only then can a prisoner seek relief in federal court. See Lundy v. Osborn, 555 F.2d

534, 535 (5th Cir. 1977).

Notwithstanding the sound principles underlying the exhaustion doctrine, there are at least

three broad sets of circumstances in which the interests of the individual weigh heavily against

requiring administrative exhaustion: (1) where there is an unreasonable or indefinite timeframe for

administrative action; (2) where an agency lacks authority to grant effective relief; and (3) where

exhaustion would be futile because "the administrative body is shown to be biased or has otherwise

predetermined the issue before it." McCarthy, 112 S.Ct. at 1087-88. However, those exceptions

apply only in extraordinary circumstances. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (citations

omitted). The petitioner bears the burden of establishing his entitlement to one or more of the

exceptions. Id.

III.

While conceding that he has not exhausted his administrative remedies, petitioner urges the

court to exercise its discretion to consider his claim on the merits. The court declines the invitation

as petitioner has not established any exception to the exhaustion requirement.

 

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First, there is no evidence of an unreasonable or indefinite timeframe for administrative

action. To the contrary, BOP regulations establish a procedure for resolving administrative remedy

requests in a timely fashion. If a complaint cannot be resolved informally, the inmate may submit

a written request to the prison warden. 28 C.F.R. § 542.13. The warden has 20 days to respond to

the formal request. Id. § 542.18. If the inmate is not satisfied with the response, he can appeal to

the BOP Regional Director. Id. § 542.15(a). Such an appeal must be decided within 30 days. Id.

§ 542.18. The final step in the administrative review process is an appeal to BOP General Counsel.

Id. § 542.15(a). Any such appeal must be decided within 40 days. Id. § 542.18. Since petitioner

is not scheduled for release until September 2006 at the earliest, there is no reason why he cannot

exhaust his administrative remedies before seeking federal habeas relief.

Nor has petitioner shown that the BOP lacks authority to award him sentence credits. The

Attorney General has vested the BOP with authority to determine issues related to the manner in

which sentences are to be carried out, including the calculation of sentence credits. 28 C.F.R. §

0.96(g). If the BOP has erroneously calculated petitioner's good conduct time, it has authority to

correct that error and should be permitted to do so. See Smith v. Thompson, 937 F.2d 217, 219 (5th

Cir. 1991) (agency should be given opportunity to correct its own error before aggrieved party seeks

judicial intervention). 

Finally, it appears that neither the warden, BOP Regional Counsel, nor BOP General Counsel

have ever been given an opportunity to address this issue. Even if petitioner believes that

administrative review will be denied, it does not make this remedy futile. See Greene v. Meese, 875

F.2d 639, 641 (7th Cir. 1989) ("No doubt denial is the likeliest outcome, but that is not sufficient

reason for waiving the requirement of exhaustion.").

 

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Petitioner's plight is no different than any other prisoner who disagrees with the calculation

of his good time credits. This court is unwilling to create a wholesale exception to the exhaustion

doctrine that would allow federal prisoners to circumvent the administrative appeal process and seek

federal habeas review of sentence credit issues without at least first attempting to exhaust available

administrative remedies. Absent evidence of undue delay, lack of administrative authority, or

futility, the principles of exhaustion require that the BOP be given an opportunity to review sentence

credit determinations before a federal court exercises habeas jurisdiction. See Sanchez, 2003 WL

22327877 at *2-3. 

RECOMMENDATION

Respondent's motion to dismiss should be granted. This case should be dismissed without

prejudice for failure to exhaust administrative remedies. 

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: August 17, 2005.

 

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