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.
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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