Opinion

Vasquez v. Warden, FCC Coleman - Low

Court
District Court, M.D. Florida
Filed
Jun 23, 2023
Cited by
0 cases
Authority
More cited than 19.9%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

JOSE FELIX VASQUEZ,

Petitioner,

v. Case No: 5:22-cv-517-WFJ-PRL

WARDEN, FCC COLEMAN − LOW,

Respondent.

__________________________________/

ORDER

Before the Court is Petitioner Jose Felix Vasquez’s pro se Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2241, Dkt. 1, and Respondent’s Motion to

Dismiss the petition for failure to exhaust administrative remedies, Dkt. 6. Upon

careful consideration, the Court grants Respondent’s motion and dismisses the

petition.

BACKGROUND

In April 2022, the United States District Court for the Southern District of

Florida sentenced Petitioner to 75 months’ imprisonment followed by two years’

supervised release for conspiracy to possess cocaine with intent to distribute while

on board a vessel subject to the jurisdiction of the United States in violation 46

U.S.C. § 70506(b). See Judgment, United States v. Vasquez, No. 1:21-cr-20579-BB

(S.D. Fla. Apr. 22, 2022) (Dkt. 72). Petitioner is serving his prison sentence at the

Federal Correctional Complex, United States Low, in Coleman, Florida. His

projected release date based on good conduct time is February 27, 2027. Dkt. 6-1.

On October 23, 2022, Petitioner filed the instant § 2241 petition challenging

the Bureau of Prison’s (“BOP”) calculation of his sentence. Dkt. 1. According to

Petitioner, he is “entitled to a minimum of 690 days” of earned time credits under

the First Step Act of 2018 (“FSA”), 18 U.S.C. § 3632. Id. at 12. Petitioner

concedes that he did not exhaust his administrative remedies within the BOP prior

to filing his petition. Id. at 10. Nevertheless, Petitioner contends that exhaustion is

futile because “(1) the automated BOP-wide system used to calculate FSA [earned

time credits] cannot be changed by lower level staff and is a procedural dead-end;

and (2) Petitioner . . . cannot timely complete the administrative remedy process

without extending the length of his incarceration.” Id. Respondent now moves to

dismiss the petition for failure to exhaust administrative remedies. Dkt. 6.

DISCUSSION

While exhaustion of administrative remedies is not considered jurisdictional

in a § 2241 proceeding, courts may not “disregard a failure to exhaust and grant

relief on the merits if the respondent properly asserts the defense.” Santiago-Lugo

v. Warden, 785 F.3d 467, 475 (11th Cir. 2015). District courts follow a two-step

process when determining whether to dismiss a § 2241 petition for failure to

exhaust administrative remedies. Blevins v. FCI Hazelton Warden, 819 F. App’x

853, 854 (11th Cir. 2020) (citing Turner v. Burnside, 541 F.3d 1077 (11th Cir.

2008)). First, a court looks to the inmate’s and the respondent’s factual allegations.

Id. at 856. If the parties’ factual allegations conflict, the court accepts as true the

inmate’s version of the facts. Id. If the inmate’s allegations establish his or her

failure to exhaust administrative remedies, the court must dismiss the petition. Id.

Where an inmate’s factual allegations do not support dismissal at the first

step, the court proceeds to the second step of its analysis. Id. At the second step,

the respondent bears the burden of establishing that the inmate failed to exhaust

administrative remedies. Id. The court must “make specific findings in order to

resolve the disputed factual issues related to exhaustion.” Id. Upon making such

findings, the court determines whether the inmate has exhausted his or her

administrative remedies. Id. at 857.

Here, because Petitioner and Respondent’s factual allegations do not

conflict, the Court may resolve this matter at the first step of the above analysis.

Both Petitioner and Respondent agree that Petitioner has not exhausted his

administrative remedies. This is confirmed by a BOP administrative remedy report,

which shows that Petitioner has not filed any administrative remedy requests while

incarcerated. Dkt. 6-2; see also Dkt. 6-3 (declaration and certification of records).

With no dispute that Petitioner has yet to exhaust his administrative remedies, his

petition is due to be dismissed.

However, Petitioner contends that his failure to exhaust administrative

remedies should be excused because exhaustion is futile. Dkt. 1 at 10. Petitioner

asserts that the BOP’s system of awarding earned time credits is a “procedural

dead-end” because it “cannot be changed by lower level staff[.]” Id. Petitioner

further posits that adhering to the administrative remedy process would lengthen

his term of incarceration, as he had “less than 53 months remaining in his

sentence” at the time he filed the instant petition. Id.

While futility may generally be raised as an exception to the exhaustion

requirement, “there are grounds for doubt that a futility exception is available in a

§ 2241 petition in this circuit.” Perez v. Joseph, No. 3:22-cv-2055-MCR-HTC,

2020 WL 2181090, at *2 (N.D. Fla. May 4, 2022). Before the Eleventh Circuit

determined that the exhaustion requirement is not jurisdictional in nature, see

Santiago-Lugo, 785 F.3d at 475, the Eleventh Circuit held that there is no futility

exception to exhaustion, see McGee v. Warden, FDC Miami, 487 F. App’x 516,

518 (11th Cir. 2012). Regardless, circuits that recognize the futility exception have

limited its application to “extraordinary circumstances.” See Fuller v. Rich, 11 F.3d

61, 62 (5th Cir. 1994) (citation omitted). It is ultimately the petitioner’s burden to

demonstrate the futility of administrative review. Id. (citation omitted).

To the extent that this circuit recognizes the futility exception to exhaustion,

Petitioner has neither demonstrated futility nor identified any exceptional

circumstances warranting the futility exception’s application. To be sure,

Petitioner’s position that lower-level BOP staff are unable to change the BOP’s

system for calculation earned time credits does not render the administrative

remedy process futile. Even if lower-level staff cannot correct errors in the

calculation of an inmate’s earned time credits, lower-level staff do not control

every level of the BOP’s administrative remedy process. Moreover, there is no

merit to Petitioner’s alternative assertion that following the administrative remedy

process will lengthen his term of incarceration. Petitioner filed the instant petition

over four years before his projected release date of February 27, 2027. He had, and

still has, ample time to seek administrative review of his earned time credit

calculations.

CONCLUSION

For these reasons, Respondent’s Motion to Dismiss, Dkt. 6, is GRANTED.

Petitioner’s § 2241 Petition, Dkt. 1, is dismissed without prejudice. The Clerk is

directed to enter judgment in favor of Respondent and close this case.

DONE AND ORDERED at Tampa, Florida, on June 23, 2023.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Petitioner, pro se

Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.