IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

ORDER

Petitioner Michael Sonnier, proceeding pro se, filed the above-styled and numbered petition 

for the writ of habeas corpus under 28 U.S.C. § 2241 complaining of the refusal by the Federal 

Bureau of Prisons to designate a state institution as the place of service of a portion of his federal 

sentence. Docket No. 1. The case referred to the United States Magistrate Judge in accordance 

with 28 U.S.C. § 636.

BACKGROUND

Petitioner pleaded guilty to child pornography charges in the Western District of Louisiana 

on November 1, 2013, receiving a sentence of 120 monthsin prison. Docket No. 1 at 22. On March

15, 2015, he pleaded guilty in the Fourteenth Judicial District Court of Louisiana to charges of

indecent behavior with juveniles, receiving a ten-year sentence. Id. The state judge ordered that 

this sentence run concurrently with Petitioner’s federal sentence. Id. Petitioner remained in state

custody until December 12, 2022, when he was transferred into federal custody upon satisfaction 

of his state sentence. Id. at 21–22.

On August 16, 2022, while still in state custody, Petitionersent a request for a nunc pro tunc 

designation of the state facility asthe location forservice of hisfederalsentence to the South Central 

§

MICHAEL J. SONNIER II §

§

Petitioner §

§

v. § Case No. 5:23-cv-96-RWS-JBB

§

WARDEN, FCI-TEXARKANA §

§

Respondent §

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Regional Office of the Federal Bureau of Prisons, but by the time his state sentence expired in 

December, he had not received a response. Id. at 23.

Petitioner arrived at the Federal Correctional Institution in Texarkana in February of 2023 

and wrote to the South Central Regional Office asking about his request from the previous August. 

Id. On March 22, 2023, he received a response from the Warden telling him that his request was

being reviewed. Id. at 23–24. Petitioner asked his case manager about it the next day and she told 

him that a letter, known as a “Barden letter,” had been sent to the federal sentencing court asking 

if the court intended his federal sentence to run consecutively or concurrently with any state 

sentences. Id. at 24. 

On May 3, 2023, Petitioner again wrote to the South Central Regional Office asking about 

his nunc pro tunc request. Id. On May 20, 2023, his case manager gave him a letter dated March 

19, 2023, informing him that the Bureau had denied his nunc pro tunc request based on factors 2, 3,

and 4 of 18 U.S.C. § 3621(b). Id. These factorsincluded Petitioner’s offense, his criminal history,

and the sentencing court’s recommendation that the federal sentence run consecutively to the state 

sentence. See id.; see also Docket No. 1-6.

Petitioner filed an appeal of this decision to the General Counsel of the Federal Bureau of 

Prisons. Docket No. 1 at 24. On July 7, 2023, however, he received notice that the appeal had been

rejected because of formatting issues. See id. at 25. He resubmitted his request on July 11, stating 

that he did not have to file a unit-levelrequest under 28C.F.R. § 542.14(d)(5) and that he had revised

his continuation page. Id. This appeal was again rejected on the basis that he had to file a unit-level 

request and then appeal that decision to the regional office prior to appealing to the General 

Counsel. Id.

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I. The Habeas Petition

In his habeas petition, Petitioner argues that the Bureau obstructed him from exhausting 

his administrative remedies. Docket No. 24 at 25–27. He first objects, arguing the Bureau erred in 

considering the nature of his offense as a factor, stating that the Bureau only considered the offense 

at face value and did not consider any mitigating circumstances. Id. at 28–29. He also complains 

that the Bureau did not consider other factors such as his rehabilitative efforts, achievements, and 

accomplishments or his clean disciplinary record. Id. at 30–36.

Petitioner separately complains that the Barden letter sent to the sentencing court was not

answered by the sentencing judge, Patricia Minaldi. Id. at 37–42. Instead, the Chief Judge of the 

Western District of Louisiana, Terry Doughty, answered the letter because Judge Minaldi was no 

longer assigned the case at the time of the Barden letter. See Docket Nos. 12-1 at 51.

1 Petitioner 

contends that because Judge Doughty had not been the sentencing judge, the Bureau should not 

have accepted his recommendation or considered it applicable. Docket No. 37–42. Petitioner 

argues that the reasoning in the Barden letter shows that the Bureau had effectively delegated its

discretion to a non-sentencing judge and had ceded veto power over its decision to the court. See 

id.

Petitioner further argues that under Section 5G1.3 of the U.S. Sentencing Guidelines, if a 

state term of imprisonment is anticipated from another offense which is relevant conduct to the 

instant offense, the sentence for the instant offense shall be imposed to run concurrently to the 

anticipated term of imprisonment. See id. at 43–48. He states that while sentences imposed at 

different times normally run consecutively, this should not apply to state sentences which have not 

yet been imposed. Id. Petitioner contends that the Bureau is expected to consider the state court’s 

1 Judge Minaldi died before Petitioner submitted his Barden letter.

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determination that the sentences should be concurrent and that imposing a consecutive sentence 

by presumption or through a non-sentencing judge’s recommendation is contrary to case law, to 

the current views of the criminal justice system, and to the preference and order of the Louisiana 

state court. Id.

II. The Respondent’s Motion to Dismiss and the Petitioner’s Reply

The Respondent filed a motion to dismiss stating that while Petitioner failed to exhaust his 

administrative remedies, the petition should be denied on the merits. Docket No. 12. The

Respondent traced and agreed with Petitioner’s representations concerning the history of the 

Petitioner’s convictions. See generally id. Respondent noted, however, that in responding to the 

Barden letter, Judge Doughty observed that the state sentence which Petitioner received was not

relevant conduct to the federal offense, had no bearing or impact on the sentencing guidelines for

the federal sentence, involved separate victims, and was already pending at the time of Petitioner’s 

federal indictment. Id. at 4. 

The Respondent explained that under 18 U.S.C. § 3584(a), multiple terms of imprisonment 

imposed at the same time run concurrently unless the court orders or the statute mandates that they 

run consecutively, while multiple terms of imprisonment imposed at separate times run 

consecutively unless the court orders that they run concurrently. See Docket No. 12 at 6–16. 

Respondent maintained that only the federal district court can decide whether a federal sentence 

runs concurrently or consecutively with a state sentence which has not yet been imposed, but the

sentences are presumed to be consecutive unlessthe courtspecifies that they are concurrent. See id.

(primarily relying on Setser v. United States, 566 U.S. 231 (2012)).

The Respondent stated that under Bureau of Prisons Program Statement 5160.05, the 

designation for concurrent service of sentence is made only when it is consistent with the intent of 

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the federal sentencing court or the goals of the criminal justice system. Id. at 9–10, 18. Where a 

federal sentence is imposed before a state sentence, and the sentences are intended to run 

concurrently, the Bureau of Prisons may indirectly award credit for the time served in the state 

prison by designating nunc pro tunc the state prison as the place in which the prisoner serves a 

portion of his federal sentence. See Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010).

According to the Respondent, the Bureau conducted a thorough review of Petitioner’s 

request for a nunc pro tunc designation of the Louisiana prison as the place of service of a portion 

of his federal sentence. Docket No. 12 at 20; see also e.g., Docket No. 12-1 at 1–9 (¶¶ 14–21, 32, 

34, 35), 34–58. While Petitioner argued that the Bureau abdicated its statutory authority by 

delegating its responsibility to a non-sentencing judge, the Respondent maintained that it is the 

court, not the Bureau, which determines whether sentences are consecutive or concurrent. See e.g., 

Docket No. 12 at 9–13. The Respondent also stated that contacting the chief judge of the Western 

District was proper because the sentencing judge had died and Rule 25(b) of the Federal Rules of 

Criminal Procedure provides that any judge regularly sitting in or assigned to a court may complete 

the court’s duties if the judge who presided at trial is unable to do so because of absence, sickness, 

death, or other disability. Id. at 22.

In his response to the motion to dismiss, Petitioner argued that Setser only applies at or 

during the sentencing phase and does not apply retroactively. See e.g., Docket No. 13 at 11–30. 

He contended that a state sentence which has not yet been imposed does not qualify as a “multiple 

term of imprisonment” and the state court’s ordering the sentences to be concurrent made him even 

more eligible for a nunc pro tunc designation. See id.

Petitioner further asserted that the contacting of Judge Doughty was improper because at 

the time thatJudge Minaldi took a leave of absence in 2014, Judge Doughty was not on the federal 

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bench but was instead a state district judge in Louisiana. Id. at 32–38. Petitioner stated that Judge 

Doughty could not be the lawful successor because he did not succeed Judge Minaldi and does not 

sit in the same division. Id.

Petitioner further contended that the Bureau did not give his request a thorough review but 

instead relied entirely on the recommendation of a non-sentencing judge and did not consider his 

rehabilitative efforts. Id. at 38–45.2

III. The Report of the Magistrate Judge

Upon review of the pleadings, the Magistrate Judge stated that Petitioner’s habeas corpus 

petition sought review of the Bureau of Prisons’ denial of hisrequest for a nunc pro tunc designation 

of the state prison as the place of service of his federal sentence, effectively making his sentences 

concurrent. Docket No. 18 at 11. The Magistrate Judge stated that multiple terms of imprisonment 

are presumed to run consecutively unlessthe courtspecifies otherwise, and a consecutive sentence

may be imposed even if the defendant has not yet been sentenced in state court. Id.

The Magistrate Judge rejected Petitioner’s contention that the Bureau of Prisons 

improperly contacted Judge Doughty, citing Federal Rule of Criminal Procedure 25. Id. at 12–13.

The Magistrate Judge relied on a worksheet listing the factors under § 3621 to show that the Board 

considered the factors under § 3621 in reviewing Petitioner’s request. Id. at 13 (citing Docket No. 

12-1 at 58). Specifically, the Magistrate Judge noted that the Bureau considered that Petitioner’s 

state and federal charges were unrelated under Factor 2 and the court’s recommendation of a 

consecutive sentence under Factor 4. Id. The Magistrate Judge also considered that Factors 1 and 

3 were in Petitioner’s favor because Factor 1 stated that Petitioner had a security level oflow at FCI2 Petitioner also filed a motion for summary judgment essentially repeating the arguments in his

petition. See Docket No. 15.

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Texarkana and Factor 3 stated that Petitioner had no other convictions and no disciplinary history in

the institution. Id.

The Magistrate Judge stated that theBureau’s decision in thisregard is entitled to substantial 

deference and can be overturned only upon a showing of abuse of discretion. Id. Upon review of 

the pleadings and documents in the record, the Magistrate Judge concluded that Petitioner failed to

show an abuse of discretion on the part of the Bureau. Id. The Magistrate Judge noted particularly 

that Petitioner’s state offense was not relevant conduct to his federal conviction and unrelated 

crimes ordinarily receive distinct punishments. Id. at 13–14. The Magistrate Judge further 

concluded that the record showed the Bureau considered all the § 3621(b) factors and that the state 

court’s determination that the state sentence should run concurrently with the federalsentence is not

binding on the United States. Id. at 14–15. The Magistrate Judge recognized Petitioner’s 

“commendable efforts at rehabilitation” and stated that his record of achievements was

“impressive,” but concluded that in the absence of a showing of abuse of discretion, Petitioner’s 

habeas corpus petition lacked merit. Id. at 15.

ANALYSIS

Petitioner filed objections to the Magistrate Judge’s Report and Recommendations (Docket 

No. 21), to which Respondent responded (Docket No. 22). Petitioner subsequently filed a reply. 

Docket No. 23. The Court addressed each objection in turn.

I. Petitioner’s (Corrected) First Objection3

Plaintiff’s first objection states that the Magistrate Judge erred in concluding that under 

federal law, multiple terms of imprisonment imposed at different times are presumed to run

3 Petitioner submitted a correction version of his first numbered objection, which is post-marked 

on July 26, 2024. Docket No. 20-1. Even though the Court received the correction first, it appears 

to have been sent three days after Petitioner’s six-objection submission, which is post-marked on 

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consecutively unless the district court ordersthat they run concurrently. Docket No. 20 at 2; see also

Docket No. 23 at 1–6. He concedes that while the Fifth Circuit said this in Hunter v. Tamez, 622 

F.3d 427, 431 (5th Cir. 2010) and Potoski v. Fox, 583 F.App’x 396, 397 (5thCir. 2014), Petitioner

argues that these cases relied on Free v. Miles, 333 F.3d 550, 553 (5th Cir. 2003), in which the 

defendant was already serving a state term of imprisonment when a federal sentence was

subsequently imposed. Id. However, Petitioner arguesthat thisscenario isreversed in his case. Id.

While the scenario involving the state sentence preceding the federal sentence may have

been true in Free, the record showsthat in Hunter, the appellantreceived an 87-month sentence in

federal court on February 11, 2004, and then a four-yearsentence in state court on June 28, 2004,

which the state judge specified was to be concurrent with his federal sentence. Hunter, 622 F.3d 

at 429. The appellant sought a nunc pro tunc designation of the state facility as the place of 

service of his federal sentence and the Bureau sent the sentencing judge a Barden letter. Id. The 

judge responded that he had no opinion as to whether the sentence should be consecutive or

concurrent. Id. Subsequently the Bureau, after considering the § 3621(b) factors, denied the nunc 

pro tunc designation. Id. The Fifth Circuit rejected the appellant’s claim that the Bureau was 

required to give effect to the state court’s express intention that the sentence run concurrently 

and stated that the appellant was effectively sentenced to a consecutive sentence because he was 

sentenced at different times and the federal court did not specify a concurrent sentence. Id. at 

430.

Similarly, in Potoski, the Fifth Circuit explained that the Bureau “correctly presumed from 

the district court’s not specifying a concurrent sentence that it intended to impose a consecutive 

July 23, 2024. Docket No. 21-2. The corrections appear to be minimal and have been considered 

by the Court. 

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sentence,” in a situation where the federalsentence wasimposed prior to the state sentence. Potoski, 

583 F.App’x at 397.4 This makes clearthat the failure to specify a concurrentsentence permitted the 

Bureau to presume that a consecutive sentence wasintended. The fact that Free may have involved 

a different set of facts is irrelevant as the Magistrate Judge did not rely on Free. Petitioner’s 

objection on this point is without merit.

Petitioner also asserts that the presumption “is no longer applicable in the given scenario 

because the Supreme Court has explicitly prohibited it in Setser v. United States, 566 U.S. 231 

(2012).” Docket No. 20 at 2; see also Docket No. 21 at 9–10. Petitioner also refers to Pope v. 

Perdue, 889 F.3d 410 (7th Cir. 2017) for this contention. Docket No. 20 at 2. In Pope, the district 

court did not assert a position pertaining to retroactive concurrent designation, and the Bureau 

presumed from this silence that the sentence should run consecutively. Pope, 889 F.3d at 417. The 

Seventh Circuit stated that “the Supreme Court has explicitly prohibited the BOP from drawing 

this inference for defendants who—like Pope—had not received their state sentence when their

federal sentence was imposed.” Id. (citing Setser, 566 U.S. at 239).

By contrast, as noted above, the Fifth Circuitstated in Potoski that “the federal district court 

had the discretion to order Potoski’sfederalsentence to run concurrently to histhen-anticipated state 

sentence, and the BOP correctly presumed from the district court’s not specifying a concurrent 

sentence that it intended to impose a consecutive sentence.” Potoski, 583 F.App’x at 397 (citing

Setser and 18 U.S.C. § 3584(a)). This Court need not consider the question of whether Pope and 

Potoski are in conflict because this Court is bound by the decisions and precedent of the Fifth 

4 Moreover, in Potoski the Fifth Circuit held that “the state court’s designation that Potoski’s state 

sentence was to run concurrently with the federal sentence did not have any bearing on the district 

court's judgment and is irrelevant to the BOP’s computation.” 583 F. App’x at 397.

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Circuit, not the Seventh Circuit. See 28 U.S.C. § 41; Continental AirlinesInc. v. American Airlines 

Inc., 824 F.Supp. 689, 710 (S.D. Tex. 1993). This objection is without merit.

Petitioner argues that “the inapplicability of § 3584(a)’s last sentence isfurthershown by

the Supreme Court when it urged Setserto use the Bureau of Prison’s procedure.” Docket No. 20 

at 2. He asks “if § 3584(a) would have disqualified Setser, why did the Supreme Court invoke 

the Bureau’s procedure as a remedy?” Id. Petitioner, however, overlooksthe fact that in Setser,

the appellant had a 151-month federal sentence, to be run concurrently with one state sentence 

and consecutively with another. 566 U.S. at 233. Because the sentencing (federal) court in Setser 

specifically ordered a concurrent sentence, the last sentence in § 3584 did not apply. See id. at 

239–40.

As the Respondent correctly states, Petitioner is misreading Setser. That case held that the 

authority to order a federalsentence concurrent with or consecutive to any other sentence rests with 

the sentencing court, not the Bureau of Prisons. See id. at 240–41. The Supreme Court also

observed that judges have long been understood to have discretion to impose consecutive or

concurrent sentences with respect to other sentences they impose or that have been imposed in 

other proceedings, including state proceedings, and that “a large majority of the federal appellate

courts addressing the question have recognized a similar authority in the context here, where a

federal judge anticipates a state sentence that has not yet been imposed.” Id. at 236–37. The Court 

went on to say that “we find nothing in the Sentencing Reform Act, or in any other provision of 

law, to show that Congress foreclosed the exercise of district courts’ sentencing discretion in these 

circumstances.” Id. Thus, what happened here—the designation of a federal sentence to run 

consecutively with a not yet imposed state sentence—is within the sentencing discretion of the 

district court. Se id. Petitioner’s objection in this regard is without merit.

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Similarly, Petitioner argues that under Setser, a district court is permitted to “forebear” its 

determination of whether a sentence should be concurrent or consecutive to a later imposed state 

sentence. Docket No. 21 at 10. Petitioner interprets Setser to mean that a court’s silence does not 

expressly mean that it intended for a consecutive sentence to be implemented. See id. As stated 

above, Potoski held that the Bureau ofPrisons is correct in presuming a consecutive sentence where

a concurrentsentence is notspecified. In any event, as happened in this case, the Bureau commonly

contacts the sentencing court with a Barden letter to inquire as to intent regarding the consecutive 

or concurrent nature of the sentence. Petitioner’s objection in this regard shows no basis upon 

which to reject the Magistrate Judge’s Report.

II. Petitioner’s Second Objection

In his second numbered objection, Petitioner says that the Bureau abused its discretion by 

“placing the full weight of the outcome solely on Chief Judge Doughty’s indication.” Docket No. 

21 at 11.5 He points to allegedly mandatory language in the Barden letter, arguing that this shows 

the Bureau eliminated any other facts from consideration:

Should the Court indicate the sentence is to run concurrently with the state term, 

the Bureau will commence the sentence in the above judgment on a date which 

would result in the satisfaction of his federal sentence, and the release from Bureau

custody of Mr. Sonnier. Should the Court indicate the sentence is to run 

consecutively to the state term, he will continue to a current projected release date

of May 28, 2031.

Docket No. 12-1 at 52; see also Docket No. 21 at 11.

While Petitioner arguesthat this paragraph shows that the Bureau relied exclusively on the 

sentencing court’s determination, upon a de novo review of the record, the Court finds the 

Magistrate Judge properly concluded that the Bureau reviewed all the § 3621(b) factors, including 

but not limited to the sentencing court’s determination, in denying Petitioner’s request for a 

5 Similar arguments are made in Petitioner’s reply. See e.g., Docket No. 23 at 9–10.

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retroactive designation. See Docket No. 18 at 13–15. Petitioner has failed to show the Bureau 

abused its discretion and his objection on this point is without merit.

III. Petitioner’s Third Objection

Petitioner’s third objection asserts that Judge Doughty was not the sentencing judge and in 

fact was not even a member ofthe court which imposed the sentence during theBureau’ssolicitation 

of how he would prefer to run the sentence. Docket No. 21 at 11–13; see also Docket No. 23 at 6–

10. Petitioner explains that Judge Doughty was assigned to the Monroe Division of the Western 

District of Louisiana, whereas the sentence was imposed in the Lake Charles Division of that court. 

Docket No. 21 at 12. As he did in his petition, Petitioner cites the Ninth Circuit’s decision in 

Rodriguez v. Copenhaver, 823 F.3d 1238, 1242 (9th Cir. 2016) as saying it was improper for the 

Bureau to rely on a letter from a judge who was not the sentencing judge. Id. at 12–13.

The Magistrate Judge correctly observed that the sentencing judge, Patricia Minaldi, had 

died, and so the Bureau contacted the Chief Judge of the Western District of Louisiana. Docket 

No. 18 at 3–4. Rule 25 provides that after a verdict or finding of guilty, any judge regularly sitting 

in or assigned to a court may complete the court’s duties if the judge who presided at trial cannot 

perform those duties because of absence, death, sickness, or other disability. FED. R. CRIM. P. 25. 

The Magistrate Judge stated that the phrase “the court’s duties” included answering the Bureau’s 

inquiry concerning the consecutive or concurrent nature of the sentence. Docket No. 18 at 12–13 

(referring to United States v. Dowd, 451 F.3d 1244, 1256 (11th Cir. 2006) and United States v. 

Bourgeois, 950 F.2d 980, 988 (5th Cir. 1992)).

The fact that the Chief Judge of the Western District of Louisiana sat in a different division 

of that court than the division in which Petitioner wassentenced does not mean that the ChiefJudge 

was not “a judge regularly sitting in or assigned to” the sentencing court. The term “that court” 

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refers to the Western District of Louisiana, not a division within that district; divisional venue was

abolished by the Judicial Improvements and Access to Justice Act of 1988, Public Law No. 100-

702, Title X, § 1001 (a) (102 Stat. 4664, November 19, 1988). See Smith v. Michels Corp.,

Civil Action No. 2:13-cv-185, 2013 WL 4811227, at *2 (E.D. Tex., Sept. 9, 2013).

In Rodriguez, the appellant was arrested in Miami, Florida on state charges, and had 

been on parole from a previous state conviction at the time of the arrest. 823 F.3d at 1240. A 

month after his arrest, he appeared in federal court in the Southern District of Florida on firearms

charges as well as an assault on a federal judge stemming from a home invasion robbery. Id.

Acting Chief Judge Edward Davis of the Southern District of Florida had previously recused all

the judgesin that district from the case because the alleged victim of the home invasion robbery 

was a fellow judge of that court. Id.

Because all the judges in the Southern District had been recused, the Chief Judge of the 

Eleventh Circuit appointed Judge Robert Propst from the Northern District of Alabama to preside 

over Rodriguez’s case in the Southern District of Florida. Id. Rodriguez was convicted of the 

firearms charges and received a sentence of 272 months, which sentence was silent about whether 

it should run concurrently or consecutively with the yet to be imposed state sentences. Id. About 

three years after Rodriguez finished serving his state sentences, he entered the custody of the 

Federal Bureau of Prisons. Id.

Rodriguez sought a nunc pro tunc designation of the Florida facility for service of his 

federal sentence. Id. at 1240–41. The Bureau wrote to Judge Propst to solicit his opinion on 

whether the federal sentence should be consecutive or concurrent but mailed to the letter to the 

Southern District of Florida, rather than to Judge Propst’s court in Alabama. Id. at 1241. Rather 

than forwarding the letter to Judge Propst, Chief Judge Federico Moreno replied to the letter 

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himself, despite the fact that he had been recused from the case. Id. Judge Moreno’s letter said that 

he “strongly opposed” the request for a nunc pro tunc designation, opined that violent attacks upon 

federal judges should be “strongly sanctioned,” and said that allowing Rodriguez to be released 

early was not only dangerous to the public but an insult to the victimized judge as well as the 

victims in the state case. Id. 

When Rodriguez sought relief under 28 U.S.C. § 2241, the district court held that it lacked 

jurisdiction to review an individual discretionary denial of a nunc pro tunc designation because 18 

U.S.C. § 3625 specifically exempts § 3621 decisions from judicial review.6 Id. at 1241–42. The 

Ninth Circuit reversed that determination, stating that “although a district court has no jurisdiction 

over discretionary designation decisions, it does have jurisdiction to decide whether the Bureau of

Prisons acted contrary to established federal law, violated the Constitution, or exceeded its 

statutory authority when it acted pursuant to 18 U.S.C. § 3621.” Id. at 1242.

With regard to the merits of the claim, the Ninth Circuit said that § 3621(b) directs the 

Bureau to consider statements from the court which imposed the sentence, which was “a direction 

to the Bureau of Prisons to consider statements made by the sentencing judge to determine the 

judge’s intent and reasoning imposed on the particular defendant.” Id. The court also noted Federal 

Bureau of Prisons Program Statement No. 5160.06, which set forth the procedures to follow

“[w]hen the original sentencing judge is no longer available and the assigned judge offers no 

opinion.” Id. The Ninth Circuit determined that the Bureau of Prisons erred in considering Chief

6 The Magistrate Judge in the present case rejected this view, determining that the Court had

jurisdiction to review the denial of a nunc pro tunc designation under an abuse of discretion standard.

Docket No. 18 at 12 (citing Rodriguez v. Pitzer, 76 F.App’x 519, 520 (5th Cir. 2003) and Lewis v. 

Warden, FCC Beaumont, 819 F.App’x 211, 214 (5th Cir. 2020)).

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Judge Moreno’s letter because he was not the judge who imposed the sentence and had been 

recused from the case and should not have participated in it in any way. Id. at 1242–43.

The Ninth Circuit’s opinion makes clear that the critical fact in this case wasthe recusal, not 

merely that Chief Judge Moreno was not the sentencing judge. Id. In addition, there was no 

showing that the sentencing judge, Judge Propst, was unavailable. Id. The fact that the Bureau of 

Prisons has a program statement setting out procedures to follow when the original sentencing 

judge is not available demonstrates that the unavailability of the original sentencing judge is not 

an automatic bar to consideration of the assigned judge’s opinion, when one is offered. See id.

Accordingly, Petitioner’s reliance on Rodriguez is misplaced and his objection on this point is 

without merit.

IV. Petitioner’s Fourth Objection

In his fourth numbered objection, Petitioner again asserts that the Bureau of Prisons erred 

in contacting Judge Doughty because Judge Doughty was assigned to the Monroe Division rather 

than the Lake Charles Division and Judge Doughty succeeded Judge RobertJames on the bench and 

not Judge Minaldi. Docket No. 21 at 13–15. As previously noted, divisional venue has been 

abolished and Judge Doughty, as Chief Judge of the Western District of Louisiana, properly acted

as successor to Judge Minaldi. See supra Section III. This objection is without merit.

V. Petitioner’s Fifth Objection

In his fifth objection, Petitioner asserts that he has a right under the Administrative Remedy 

Program to file an appeal of the Bureau of Prisons’ decision, but he was prevented from doing so 

by the Central Office, which improperly told him that he had to file a grievance with the warden and 

then appeal thisto the Regional Office prior to going to the Central Office. Docket No. 21 at 15; see 

also Docket No. 23 at 11. To the extent Petitioner is raising an alleged error in the prison

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administrative remedy procedure as a ground for habeas corpus relief, the claim lacks merit 

because Petitioner lacks a protected liberty interest in the administrative remedy procedure. The

Fifth Circuit has explained that a petitioner is not entitled to habeas relief on a claim “that the prison 

violated its regulations during the administrative remedy process” and that a prisoner “does not 

have a constitutional right to a grievance procedure at all, and he has no due processliberty interest

in having his grievances resolved to his satisfaction.” Staples v. Keffer, 419 F.App’x 461, 463 (5th

Cir. 2011), citing Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005). This objection is without

merit.

VI. Petitioner’s Sixth Objection

In his sixth objection, Petitioner complains that the Magistrate Judge did not address the 

motion for partialsummary judgment which he filed. Docket No. 21 at 16; see also Docket No. 23 

at 11–12. He says that the Magistrate Judge erroneously said that it was 67 pages when in fact the

motion is 28 pages and the memorandum brief in support is 31 pages. Docket No. 21 at 16. He also

complainsthattheMagistrate Judge stated thatmotionsforsummary judgment are disfavored means

of handling habeas petition, but that his is a motion only for partial summary judgment. Id.

Significantly,however,Petitioner didnot objectto theMagistrate Judge’s conclusionthat the

motion for partialsummary judgment essentially repeatsthe arguments presented in his petition. The

claims raised in the motion include allegations that his grievances were not properly responded to,

various personnel of the Bureau of Prison erred by contacting Chief Judge Doughty and relying 

entirely on hisrecommendation, various personnel oftheBureau of Prisons erred by not considering 

all the § 3621(b) factors, and ranking officials of the Bureau of Prisons failed to correct these 

errors. These claims were addressed in the Magistrate Judge’s Report and Petitioner has not shown 

any errors in this Report. His objection on this point is without merit.

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Page 17 of 17

CONCLUSION

TheCourt has conducted a careful de novo review ofthose portions ofthe Magistrate Judge’s 

proposed findings and recommendationsto which the Petitioner objected. See 28 U.S.C. § 636(b)(1) 

(District Judge shall “make a de novo determination of those portions of the report or specified 

proposed findings or recommendations to which objection is made.”). Upon such de novo review, 

the Court has determined that the Report of the Magistrate Judge is correct and the Petitioner’s 

objections are without merit. It is accordingly

ORDERED that the Report of the Magistrate Judge (Docket No. 18) is ADOPTED as the 

opinion of the District Court. It is further

ORDERED that the Respondent’s motion to dismiss (Docket No. 12) is GRANTED and

the above-styled petition for the writ of habeas corpus is DISMISSED WITH PREJUDICE. 

.

 

____________________________________

ROBERT W. SCHROEDER III

UNITED STATES DISTRICT JUDGE

So ORDERED and SIGNED this 4th day of September, 2024.

Case 5:23-cv-00096-RWS-JBB Document 24 Filed 09/04/24 Page 17 of 17 PageID #: 440