“The plain language of § 2253(c)(1) does not 3 || require a petitioner to obtain a COA in order to appeal the denial of a § 2241 petition... 4 || Although state prisoners proceeding under § 2241 must obtain a COA, there is no parallel 5 || requirement for federal prisoners.”
How later courts described this case
- “The plain language of § 2253(c)(1) does not 3 || require a petitioner to obtain a COA in order to appeal the denial of a § 2241 petition... 4 || Although state prisoners proceeding under § 2241 must obtain a COA, there is no parallel 5 || requirement for federal prisoners.”
- “Home confinement does not constitute “official 12 detention” within the meaning of 18 U.S.C. § 3585(b).”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10
JESSICA LYNN CARVER, Case No. 18-06891 EJD (PR)
11
Petitioner,
12 ORDER OF DISMISSAL
v.
13
14 UNITED STATES OF AMERICA,
15 Respondent.
16
17
18 Petitioner, a federal prisoner at the United States Federal Correctional Institution
19 (“FCI”) in Dublin, California, filed a “Request for Credit of Home Monitoring System
20 Time,” in the Western District of Washington. Dkt. No. 1. The matter was construed as a
21 petition for writ of habeas corpus under 28 U.S.C. § 2241, and was transferred to this
22 Court as having jurisdiction under § 2241. Dkt. No. 3.
23 On April 2, 2019, the Court ordered Petitioner to show cause why the petition
24 should not be dismissed for failure to exhaust administrative remedies. Dkt. No. 9. On
25 April 18, 2019, Petitioner provided documents illustrating her attempts to exhaust. See
26 Dkt. No. 10-1. On February 20, 2020, the Court ordered Respondent to answer the
27 petition. Dkt. No. 11. Respondent timely filed an Answer on April 9, 2020. Although
1 given notice and an opportunity to do so, Petitioner did not file a Traverse.
2 For the reasons discussed below, this matter must be dismissed.
3 BACKGROUND
4 According to the petition, Petitioner was sentenced in the Western District of
5 Washington on October 6, 2017, to 60 months in federal prison. Dkt. No. 1 at 1.
6 Respondent explains that Petitioner will be released from custody on December 22, 2020.
7 Petitioner asserts that she should have received credit at sentencing for the time
8 between the date that Petitioner was released on bond, January 23, 2017, and the date that
9 she was sentenced, October 6, 2017. See Dkt. No. 1 at 1 (citing 18 U.S.C. § 3585(b)).
10 Petitioner argues that, if she were given credit for this time, then she would have been
11 released on March 26, 2020. See id.
12 In its Answer, Respondent argues that the petition should be dismissed because
13 Petitioner did not exhaust her available administrative remedies, and in the alternative that
14 the petition should be denied on the merits.
15 DISCUSSION
16 The statute under which Petitioner filed her habeas petition, 28 U.S.C. § 2241,
17 “does not specifically require petitioners to exhaust direct appeals before filing petitions
18 for habeas corpus.” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (quotation marks
19 and citation omitted). As a prudential matter, however, habeas petitioners must exhaust
20 available remedies before seeking relief under section 2241. Id.; Huang v. Ashcroft, 390
21 F.3d 1118, 1123 (9th Cir. 2004); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986).
22 Prudential limits, like jurisdictional limits, “are ordinarily not optional.” Castro-Cortez v.
23 INS, 239 F.3d 1037, 1047 (9th Cir. 2001), overruled on other grounds by Fernandez-
24 Vargas v. Gonzales, 548 U.S. 30 (2006). Accordingly, “[l]ower courts are, . . . not free to
25 address the underlying merits without first determining [whether] the exhaustion
26 requirement has been satisfied or properly weighed.” Laing, 370 F.3d at 998.
1 Exhaustion may be excused if the administrative remedy is inadequate, ineffective,
2 or if attempting to exhaust would be futile or would cause irreparable injury. See Fraley v.
3 United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993). Failure to exhaust
4 administrative remedies also may be excused where an official policy of the BOP requires
5 denial of the claim. See Ward v. Chavez, 678 F.3d 1042, 1045–46 (9th Cir. 2012).
6 Factors weighing in favor of requiring exhaustion include whether (1) agency expertise
7 makes agency consideration necessary to generate a proper record and reach a proper
8 decision, (2) relaxation of the requirement would encourage the deliberate bypass of the
9 administrative scheme, and (3) administrative review is likely to allow the agency to
10 correct its own mistakes and to preclude the need for judicial review. See Noriega–Lopez
11 v. Ashcroft, 335 F.3d 874, 880–81 (9th Cir. 2003).
12 Because the exhaustion requirement applicable to Section 2241 petitions is
13 judicially created and not a statutory requirement, a failure to exhaust does not deprive a
14 court of jurisdiction over the controversy. See Brown v. Rison, 895 F.2d 533, 535 (9th
15 Cir. 1990), overruled on other grounds, Reno v. Koray, 515 U.S. 50, 54–55 (1995). If a
16 petitioner has not properly exhausted his or her claims, a district court in its discretion may
17 either excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust
18 his administrative remedies before proceeding in court. Brown, 895 F.2d at 535.
19 Here, it is undisputed that the Bureau of Prisons has established an administrative
20 remedy by which an inmate in a federal prison may seek review of any aspect of
21 imprisonment. See 28 C.F.R. §§ 542.10-542.17 (2016). It is also undisputed that an
22 inmate must generally file and receive a denial at all three levels (Warden, Regional
23 Director, and Central Office) before she is considered to have exhausted her available
24 administrative remedies. See id. at § 542.15(a) (“An inmate who is not satisfied with the
25 Warden's response may submit an Appeal on the appropriate form (BP–10) to the
26 appropriate Regional Director . . . . An inmate who is not satisfied with the Regional
1 Director's response may submit an Appeal on the appropriate form (BP–11) to the General
2 Counsel . . . . Appeal to the General Counsel is the final administrative appeal.”); see also
3 Dkt. No. 13-1 (“Erickson Declaration”) at ¶ 10 (describing the administrative appeals
4 process).
5 Petitioner has provided documents which show that she made efforts to resolve her
6 habeas claim informally, and pursued her claim to the first level of review with a request to
7 the Warden of FCI. See Dkt. No. 10-1 (Petitioner’s informal grievance and request to the
8 Warden). However, Petitioner did not provide any documents to suggest that she pursued
9 her claim to the second or third levels of review. See generally, id.
10 By contrast, Respondent provided evidence that Petitioner did not pursue her claim
11 to the second or third levels of review. See Erickson Decl. at ¶ 11 (stating that Petitioner
12 did not appeal the Warden’s denial of her claim) & Ex. 13 (report from the BOP’s record-
13 keeping system, showing that Petitioner did not pursue her claim). Respondent thus met
14 its burden to show that Petitioner failed to exhaust her claim. See Jiau v. Tews, 623 F.
15 App’x 349, 350 (9th Cir. 2015) (noting it is the “government's burden to prove that an
16 inmate failed to exhaust”) (citing Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014)).
17 Petitioner did not rebut Respondent’s showing, and did not argue, much less
18 introduce any facts to suggest, that her failure to exhaust should be excused. See
19 generally, Dkt. Nos. 1, 10. Thus, despite having been given the opportunity, Petitioner
20 failed to show that she has exhausted her claim or that this failure should be excused.
21 Moreover, the Court notified Petitioner more than one year ago that Petitioner needed to
22 exhaust her claim, see Dkt. No. 9, but Petitioner has not taken any additional steps to
23 exhaust, see Erickson Decl., Ex. 13; see generally, Dkt. The Court therefore will not
24 exercise its discretion to excuse Petitioner’s failure to exhaust.
25 Even if Petitioner had exhausted administrative remedies, the petition would fail on
26 the merits. Petitioner claims only that she should have received credit at sentencing
1 pursuant to 18 U.S.C. § 3585(b) for the time that Petitioner spent in pre-sentencing home
2 confinement. See Dkt. No. 1. However, § 3585(b) only grants sentencing credit for time
3 spent in “official detention.” See 18 U.S.C. § 3585(b) (“A defendant shall be given credit
4 toward the service of a term of imprisonment for any time he has spent in official detention
5 prior to the date the sentence commences” as a result of an offense or charge that led to the
6 sentence at issue.”). It is well-established that home confinement is not the sort of “official
7 detention” that entitles a defendant to sentencing credit. See Koray, 515 U.S. at 62-65
8 (finding that the scope of “official detention” extends only to those defendants “completely
9 subject to BOP’s control,” and that a person released on bail to a community treatment
10 center was not entitled to sentencing credits); accord Fed. Bureau of Prisons v. Moreno,
11 145 F. App’x 223, 225 (9th Cir. 2005) (“Home confinement does not constitute “official
12 detention” within the meaning of 18 U.S.C. § 3585(b).”) (citing Koray, 515 U.S at 62-65).
13 See also Winkleman v. Hayes, No. C-94-3770 CW, 1995 WL 688648, at *3 (N.D. Cal.
14 Nov. 9, 1995) (“Even before Koray, . . . , the Ninth Circuit had held . . . that a defendant
15 seeking credit against his sentence for time spent on bail under court order to observe
16 certain conditions of release, including home detention, was not entitled to credit under
17 Title 18 U.S.C. § 3585(b).”) (citing cases). Accordingly, in addition to being unexhausted,
18 Petitioner’s claim fails on the merits.
19 Because Petitioner has neither exhausted her claim nor shown that her failure to
20 exhaust should be excused, because Petitioner appears to have taken no steps to exhaust
21 administrative remedies after the Court’s notification that such steps are necessary, and
22 because Petitioner’s claim would fail on the merits even if it were exhausted, the Court
23 concludes that dismissal is appropriate here.
24 CERTIFICATE OF APPEALABILITY
25 Petitioner is a federal prisoner bringing a § 2241 petition attacking the execution of
26 her sentence. Because Petitioner does not attack the validity of her conviction, the Court
1 || need not address whether she is entitled to a certificate of appealability. See Harrison v.
2 || Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (“The plain language of § 2253(c)(1) does not
3 || require a petitioner to obtain a COA in order to appeal the denial of a § 2241 petition...
4 || Although state prisoners proceeding under § 2241 must obtain a COA, there is no parallel
5 || requirement for federal prisoners.”) (internal citations omitted).
6 CONCLUSION
7 For the foregoing reasons, this federal habeas corpus action is DISMISSED.
8 The Clerk shall close the file.
9 IT IS SO ORDERED.
10 Dated: 12/1/2020
EDWARD J. DAVILA
United States District Judge
a 12
15
16
Z 18
19
20
21
22
23
24
25
26
27
Order of Dismissal