1

Title 18 U.S.C. § 3624(b)(1) 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

Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHNNY LEE REED, 31011-077, )

Petitioner, )

)

v. ) No. 3:05-CV-1370-K

)

WARDEN DAN JOSLIN, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This action was referred to the United States Magistrate Judge pursuant to the provisions

of Title 28, United States Code, Section 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 follow:

FINDINGS AND CONCLUSIONS

I. Factual background

Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2241. Petitioner is

serving a 210-month sentence for possession with intent to distribute crack cocaine in violation

of 21 U.S.C. § 841(a)(1), and aiding and abetting in violation of 18 U.S.C. § 2. 

Petitioner is currently earning good time credit at a rate of 47 days per year, based upon

actual time served.1

 Petitioner argues that good time credit should be based on the total length of

 

 Case 3:05-cv-01370-K Document 4 Filed 09/12/05 Page 1 of 5 PageID 22
disciplinary regulations . . . [C]redit for the last year or portion of a year of the term of

imprisonment shall be prorated and credited within the last six weeks of the sentence. 

18 U.S.C. § 3624(b)(1). Under Bureau of Prisons regulations, an inmate’s projected release date

is advanced upon the completion of each year of imprisonment by the number of days of good

time credit the inmate receives for that year. See 28 C.F.R. § 523.20; BOP P.S. 5880.28. Good

time credit is prorated if a full year or less remains to be served. Id.

Page 2

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 sentence.

Petitioner states that although he has not exhausted his administrative remedies, the Court

should consider this petition. The Court now finds the petition should be dismissed for failure to

exhaust administrative remedies.

II. Discussion

Generally, petitioners seeking relief under § 2241 must exhaust their administrative

remedies prior to presenting their claims in federal court. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.

1994). The exhaustion requirement applies to the computation of sentence credit awards. See,

e.g., United States v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990); Rodriguez v. Lamar, 60 F.3d

745, 747 (11th Cir. 1995); United States v. Pelaez, 930 F.2d 520, 524 (6th Cir. 1991); Chua Han

Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984); Sanchez v. Wendt, 2003 WL

2232787, No. 3:03-CV-1372-M (N.D. Tex. Oct. 8, 2003); Barron-Rodriguez v. Malisham, 2003

WL 21246072, No. 4:02-CV-913-Y (N.D. Tex. Feb. 11, 2003). 

The Bureau of Prisons has established an Administrative Remedy Program whereby

inmates can “seek formal review of an issue which relates 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). 

 

 Case 3:05-cv-01370-K Document 4 Filed 09/12/05 Page 2 of 5 PageID 23
Page 3

Exceptions to the exhaustion doctrine are appropriate 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

(citation omitted). These exceptions, however, apply only in extraordinary circumstances. Id. 

The petitioner bears the burden of establishing his entitlement to one or more of these

exceptions. Id.

While conceding that he has not exhausted his administrative remedies, Petitioner argues

that exhaustion would be futile. The Court, however, finds that Petitioner has not established

any exception to the exhaustion requirement and that the petition should be dismissed.

Petitioner has not shown that administrative remedies are unavailable. To the contrary,

BOP regulations establish procedures to resolve time credit complaints. 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 twenty 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 thirty days. Id. § 542.18. The final step in

the administrative review process is an appeal to the BOP General Counsel. Id. § 542.5(a). Any

such appeal must be decided within forty days. Id. § 542.18. Since Petitioner’s projected release

date is April 19, 2013, there is no reason why he cannot exhaust his administrative remedies

before seeking habeas relief.

Nor has Petitioner shown that the BOP procedures are wholly inappropriate to the relief

sought. 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. 

 

 Case 3:05-cv-01370-K Document 4 Filed 09/12/05 Page 3 of 5 PageID 24
Page 4

See 28 C.F.R. § 0.96(g). If the BOP has erroneously calculated Petitioner’s good 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, the Court is not convinced that exhaustion would be futile. The mere fact that

Petitioner believes his administrative review will be denied does not make this remedy futile. 

See Green 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.”). The Court finds

the petition should be dismissed without prejudice for failure to exhaust administrative remedies.

RECOMMENDATION

For the foregoing reasons, the Court recommends that Petitioner’s habeas corpus petition

under 28 U.S.C. § 2241 be dismissed without prejudice for failure to exhaust administrative

remedies. 

Signed September 12, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

 Case 3:05-cv-01370-K Document 4 Filed 09/12/05 Page 4 of 5 PageID 25
Page 5

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and

recommendation on Plaintiff. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must serve and

file written objections within ten days after being served with a copy. A party filing objections

must specifically identify those findings, conclusions or recommendation to which objections are

being made. The District Court need not consider frivolous, conclusory or general objections. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to

the proposed findings, conclusions and recommendation within ten days after being served with

a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of

the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. 

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

 Case 3:05-cv-01370-K Document 4 Filed 09/12/05 Page 5 of 5 PageID 26