NOEL L. HILLMAN, District Judge.
Petitioner, Jose Luis Rodriguez-Ramos, a federal prisoner confined at the Federal Correctional Institution ("FCI") in Fort Dix, New Jersey, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, seeking restoration of approximately 200 days of Good Conduct Time credit. (ECF No. 1).
This case was previously administratively terminated for failure to satisfy the filing fee requirement. (ECF No. 3). Petitioner then filed an
For the reasons set forth below, the Petition will be denied.
On December 6, 2010, Petitioner was sentenced in the United States District Court for the District of Iowa to 260 months' imprisonment for Conspiracy to Distribute and Possess with Intent to Distribute Methamphetamine, in violation of 21 U.S.C. § 846 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). After his arrival at Fort Dix, Petitioner refused to participate in the Bureau of Prisons' ("BOP") General Education Degree ("GED") program. As a result, on February 12, 2012, Petitioner was placed in GED unsatisfactory status.
Prior to his placement in GED unsatisfactory status, Petitioner was earning 54 days of Good Conduct Time ("GCT") per year. After he was placed in unsatisfactory status, however, Petitioner's GCT was reduced to 42 days per year.
The parties are in agreement as to the events that transpired up until the filing of the instant § 2241 habeas petition. (Pet'r's Reply 2, ECF No. 17) ("Petitioner is in total agreement with Respondent's time-line o[f] events, only up to Petitioner's original June 9, 2014 § 2241 petition[.]") (emphasis omitted).
Petitioner first filed a Request for Administrative Remedy with the Warden of FCI Fort Dix on February 12, 2014. (Resp't's Br. 8, ECF No. 15). At that time, Petitioner sought 54 days of GCT if it was determined that a learning disability was preventing him from completing the GED program. (
Petitioner then filed a Regional Administrative Remedy Appeal on March 17, 2014 and argued that, because he is a deportable alien, he is not required to take the GED class. (Resp't's Br. 9, ECF No. 15). On April 24, 2014, the Regional Director denied Petitioner's appeal and again explained that Petitioner would earn only 42 GCT days annually because he refused to participate in the GED program. (
Although the parties agree that Petitioner filed the instant petition on June 9, 2014, they disagree as to when, and how, Petitioner continued to pursue his administrative remedies. Respondents contend that Petitioner did not file an appeal of the Regional Director's response until August 18, 2014. (Resp't's Br. 9, ECF No. 15). Petitioner, however, contends that he filed the instant petition after he submitted his appeal to the Central Office — thus, he asserts his appeal was filed prior to June 9, 2014. (Pet'r's Reply 3, ECF No. 17). In any event, both parties agree that, to date, no response has been received from the Central Office.
In his Petition, Petitioner asserts that his GCT was "illegally, and unconstitutionally, deducted from him." (Am. Pet. 8, ECF No. 10). Petitioner explains that he is subject to deportation upon completion of his sentence and, as a result, he contends he is not required to participate in the GED program. Accordingly, Petitioner states that he should receive 54 GCT days annually and he seeks restoration of "approximately, two hundred (200) days" of GCT. (
In their responsive brief, Respondents explain that Petitioner is not subject to any final order of removal. Therefore, they contend that Petitioner must participate in the GED program in order to receive 54 days of GCT per year. (Resp't's Br. 13, ECF No. 15). Respondents note that it is unclear how Petitioner calculated a loss of 200 days of GCT and they speculate that Petitioner may have calculated a projected loss for the remainder of his 260 months' imprisonment. Further, Respondents assert that Petitioner has no due process liberty interest in the possibility of receiving 54 days of GCT each year. (Resp't's Br. 15, ECF No. 15). Finally, Respondents contend that the Petition should be dismissed because Petitioner has failed to exhaust his administrative remedies. (
In his Reply brief, Petitioner asserts that he did, in fact, exhaust his administrative remedies and he again argues that he is exempt from participation in the GED program because he is a deportable alien. (Pet'r's Reply 1, ECF No. 17).
The computation of Petitioner's GCT is governed by the provisions of the Prison Litigation Reform Act ("PLRA"), which applies to inmates whose offenses were committed on or after April 26, 1996.
The PLRA contains two literacy provisions. The first is mandatory and requires the BOP "to have in effect a mandatory functional literacy program for all mentally capable inmates who are not functionally literate in each Federal correctional institution." 18 U.S.C. § 3624(f). It further requires that each program "shall include a requirement that each inmate participate in such program for a mandatory period sufficient to provide the inmate with an adequate opportunity to achieve functional literacy, and appropriate incentives which lead to successful completion of such programs shall be developed and implemented."
The second literacy provision of the PLRA is non-mandatory and it provides, in relevant part:
18 U.S.C. § 3624(b)(1).
The BOP has implemented regulations which govern the award of GCT under § 3624(b)(1). Specifically, for PLRA inmates, the BOP will award:
28 C.F.R. § 523.20(c).
Additional BOP regulations explain what will constitute "satisfactory progress toward earning a GED credential or high school diploma" for a PLRA inmate:
28 CFR § 544.73(b)-(c).
Further, the BOP Program Statement 5250.28 instructs staff to give an EDI GED Progress Assignment of "GED UNSAT" — for unsatisfactory progress — to any inmate who:
FEDERAL BUREAU OF PRISONS, PROGRAM STATEMENT 5350.28, LITERACY PROGRAM (GED STANDARD), § 17.e(2), 31 (2003);
In relevant part, § 2241 states that the writ of habeas corpus shall not extend to a prisoner unless "[h]e is in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2241(c)(3). Additionally, a prisoner has a liberty interest in GCT credits.
"Federal prisoners are ordinarily required to exhaust their administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241."
As set forth above, the parties disagree as to when, and how, Petitioner pursued his administrative appeal to the Central Office. Respondents maintain that Petitioner failed to exhaust his administrative remedies because he did not properly file an appeal until August 18, 2014. Respondents cite to their Exhibit 4 in support of this contention. (Resp't's Br. 9, ECF No. 15). However, unlike Respondents' other Exhibits, Exhibit 4 is a not a copy of Petitioner's request and the BOP's response. Instead, this document is titled "Administrative Remedy Generalized Retrieval Full Screen Format." (Decl. 16-18, Ex. 4, ECF No. 15-1). In addition, there are three separate reports in Exhibit 4, each of which references the receipt of Petitioner's grievance and its status. In comparing these three documents with the attachments petitioner provides in his Reply, it appears to the Court that Petitioner first filed his appeal on May 5, 2014.
Petitioner states that he then waited "at least, the customary thirty (30) days" before filing the instant Petition on June 9, 2014. (Pet'r's Reply 3, ECF No. 17). Presumably, then, Petitioner interpreted the lack of response within 30 days to be an effective denial of his request.
Regardless, it appears from the attachments to the parties' submissions that Petitioner's initial May 5, 2014 appeal was rejected on June 30, 2014 (Decl. 16, Ex. 4, ECF No. 15-1) ("STATUS DT: 06-30-2014"), and a Rejection Notice was sent to Petitioner on July 1, 2014. (Pet'r's Reply 8, ECF No. 17) ("DATE: July 1, 2014"). Petitioner explains in his Reply that, on July 15, 2014, he resubmitted his appeal to the Central Office along with copies of his lower level appeals, as requested. (Pet'r's Reply 3, ECF No. 17).
That appeal was received by the Central Office on July 21, 2014.
Having deciphered the procedural history of Petitioner's institutional appeals, it is apparent that Petitioner believed his administrative remedies were exhausted at the time he filed the initial § 2241 petition (ECF No. 1) on June 9, 2014. He was mistaken. The appeal was not properly received by the Central Office until July 21, 2014. Regardless, because the Central Office effectively denied his timely appeal by failing to provide a response by the October 17, 2014 due date,
Moreover, the Third Circuit has expressed that the purpose for its exhaustion requirement is that:
Furthermore, the Third Circuit has stated that "[i]f a petitioner has failed to exhaust his administrative remedies prior to filing a § 2241 petition, the District Court may in its discretion either excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court."
Accordingly, the Court rejects Respondents' argument that the Petition should be dismissed for failure to exhaust administrative remedies. The merits of the Petitioner will be discussed below.
Here, Petitioner's GCT is being calculated pursuant to 18 U.S.C. § 3624, 28 C.F.R. § 523.20(c), 28 C.F.R. § 544.73(b)-(c), and BOP Program Statement 5350.28. The BOP's application of its regulations is entitled to deference from this Court.
As set forth above, the award of GCT credit is controlled by 28 C.F.R. § 523.20. Of particular relevance to Petitioner's argument, the statute directs that
28 C.F.R. § 523.20(d).
Petitioner concedes that there is no final order of removal pending against him. Nevertheless, he contends that, because he is a deportable alien, and because "it is certain, and without a doubt, that [he] will, indeed, be deported, upon his release from incarceration[,]" he is not required to participate in the literacy program to be eligible for a yearly award of 54 days of GCT. (Am. Pet. 7, ECF No. 10). In his Reply brief, Petitioner elaborates on this claim and argues that, although he is a deportable alien, he will not be issued a final order of removal until he completes his current sentence. (Pet'r's Reply 5, ECF No. 17). Thus, Petitioner describes the situation as a "conundrum" or "Catch 22." (
Respondents state simply that there is no final order of removal for Petitioner; therefore, by statute, he must participate and make satisfactory progress in the GED program to receive GCT at a rate of 54 days annually. (Resp't's Br. 13, ECF No. 15). The Court is in agreement.
The Court certainly respects and understands Petitioner's frustration with the fact that his options are limited to participation in a U.S. based GED program to receive GCT when he ultimately may be deported from this country upon completion of his sentence. Indeed, as Petitioner points out, the BOP has proposed an amendment to its rules regarding GCT which will provide more effective and practical literacy programs to the specialized needs of inmates like Petitioner. GOOD CONDUCT TIME: ALTERNATIVE ADULT LITERACY PROGRAMS, 80 FR 1380-01 (Jan. 9, 2015). Specifically, the proposed changes will allow certain inmates to participate in "authorized alternative adult literacy programs" and, thus, they will not need to demonstrate satisfactory progress toward earning a GED to receive maximum GCT credit.
However, these are merely proposed changes and, as such, are not controlling in this case. The fact remains that a federal inmate who is not subject to final order of removal must make satisfactory progress toward earning a GED to earn 54 days of GCT, even if he is a "sentenced deportable alien" and, as a corollary, is not required to participate in literacy program. 18 U.S.C.A. § 3624(b); 28 C.F.R. §§ 523.20(c)(1, 2), (d), 544.71(a)(3), 544.73(c);
Thus, even assuming that Petitioner in this case is a "sentenced deportable alien
A court in this district succinctly addressed the question of whether a due process rights violation had occurred when a petitioner lost the ability to earn the maximum amount of GCT days:
As with the petitioner in
For the reasons set forth above, Petitioner's request for a writ of habeas corpus will be denied.
An appropriate Order will follow.
