Opinion

Brown v. Sage

Court
District Court, M.D. Pennsylvania
Filed
Apr 29, 2022
Cited by
0 cases
Authority
More cited than 29.1%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MELVIN BROWN, :

Petitioner : CIVIL ACTION NO. 3:22-0325

v. : (JUDGE MANNION)

:

WARDEN J. SAGE,

:

Respondent

MEMORANDUM

Petitioner, Melvin Brown, an inmate confined in the Schuylkill Federal

Correctional Institution, Minersville, Pennsylvania, filed the instant petition

for writ of habeas corpus pursuant to 28 U.S.C. §2241. (Doc. 1). Brown

alleges that he has not been credited under the First Step Act (FSA) for

completing recidivism reducing courses and productive activities while in

custody. Id. Specifically, Brown requests that he be awarded FSA credits for

completing non-residential drug abuse treatment programs and residential

re-entry courses. Id. Also, Brown would like credit for participating in the

Bureau of Prison’s (BOP’s) Residential Drug Abuse Program (RDAP) and

reassessed for his pattern score. Id.

For the reasons that follow, the Court will deny the petition.

I. Background

Brown was convicted in the United States District Court for the

Southern District of New York for conspiracy to commit wire fraud, in violation

of 18 U.S.C. §1349 and aggravated identity theft, in violation of 18 U.S.C.

§1028(A). (Doc. 8-1 at 7-8, Public Information Inmate Data). Brown is serving

a 53-month term of imprisonment imposed on January 29, 2020. Id. Brown

began serving his sentence on March 20, 2020 and was transferred to FCI-

Schuylkill on July 28, 2020. Id. His current projected release date is

December 18, 2022, via conditional release under 18 U.S.C. §3621(E). Id.

On June 1, 2020, the BOP assessed Brown as having a high risk of

recidivism, and a medium risk of recidivism on April 28, 2021, July 1, 2021,

and November 28, 2021. (Doc. 8-1 at 13-14, Inmate History First Step).

On January 17, 2022, he was assessed to have Education, Substance

Abuse, Trauma and Work criminogenic needs. Id, at 2. He was previously

assessed to also have a Finance/Poverty criminogenic need on August 4,

2020, and Cognitions criminogenic need on March 5, 2021. Id.

II. Discussion

Respondent asserts that Petitioner’s §2241 petition should be

dismissed because: (1) Petitioner failed to exhaust his administrative

remedies; and (2) Petitioner is not eligible to receive the requested time

credits under the FSA. (Doc. 8 at 3.) The Court considers each argument in

turn below.

A. Exhaustion of Administrative Remedies

While §2241 does not contain an explicit statutory exhaustion

requirement, the United States Court of Appeals for the Third Circuit has

consistently required a petitioner to exhaust his administrative remedies

before filing a §2241 petition. Moscato v. Fed. Bureau of Prisons, 98 F.3d

757, 760 (3d Cir. 1996). Exhaustion is required “for three reasons: (1)

allowing the appropriate agency to develop a factual record and apply its

expertise facilitates judicial review; (2) permitting agencies to grant the relief

requested conserves judicial resources; and (3) providing agencies the

opportunity to correct their own errors fosters administrative autonomy.” Id.

at 761-62 (citing Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981)).

Thus, “a federal prisoner who . . . fails to exhaust his administrative remedies

because of a procedural default, and subsequently finds closed all additional

avenues of administrative remedy, cannot secure judicial review of his

habeas claim absent a showing of cause and prejudice.” Id. at 762.

Exhaustion, however, is not required when it would not promote these goals,

such as when exhaustion would be futile. See, e.g., Gambino v. Morris, 134

F.3d 156, 171 (3d Cir. 1998).

The BOP has a multi-step administrative remedy program allowing an

inmate “to seek formal review of an issue relating to any aspect of his/her

own confinement.” 28 C.F.R. §542.10(a). First, an inmate should attempt

informal resolution of the issue with the appropriate staff member. Id.

§542.13(b). If informal resolution is unsuccessful, the inmate may submit a

formal written grievance, using the BP-9 form, to the Warden within twenty

(20) calendar days “following the date on which the basis for the Request

occurred.” Id. §542.14(a). The Warden is to respond to the request within

twenty (20) calendar days. Id. §542.18. An inmate dissatisfied with the

Warden’s response may appeal, using the BP-10 form, “to the appropriate

Regional Director within 20 calendar days of the date the Warden signed the

response.” Id. §542.15(a). Finally, an inmate may appeal the Regional

Director’s response, using the BP-11 form, to the BOP’s General Counsel

“within 30 calendar days of the date the Regional Director signed the

response.” Id.

Brown acknowledges on the face of his petition that he has failed to

exhaust his administrative remedies prior to filing his petition. (Doc. 1 at 2-

3). BOP records confirm that Brown has not filed any administrative remedies

concerning credits under the FSA. (Doc. 8-1 at 10-12, Administrative

Remedy Generalized Retrieval). Indeed, his Administrative Remedy

Generalized Retrieval demonstrates Brown has only filed three

administrative remedies while in BOP custody, each requesting

compassionate release. Id. Brown states that “federal time credit sponsored

by the First Step Act is a futile matter” and filing grievances will render

useless, due to the proximity of [Petitioner’s] release date.” (Doc. 1 at 2-3).

However, even if Petitioner thought that pursuit of his administrative

remedies would be futile, “[c]ourts in the Middle District of Pennsylvania have

consistently held that ‘exhaustion of administrative remedies is not rendered

futile simply because a prisoner anticipates he will be unsuccessful in his

administrative appeals.’” Ross v. Martinez, No. 4:09-cv-1770, 2009 WL

4573686, at *3 (M.D. Pa. Dec. 1, 2009) (quoting Malvestuto v. Martinez, No.

1:09-cv-1339, 2009 WL 2876883, at *3 (M.D. Pa. Sept. 1, 2009)); see also

Suarez-Sanchez v. Lane, No. 4:18-cv-1431, 2019 WL 1645231, at *3-4

(M.D. Pa. Mar. 5, 2019) (concluding that petitioner’s §2241 petition was

subject to dismissal for failure to exhaust because the petitioner “never fully

and properly appealed [his] grievance because he apparently deemed the

grievance process to be a waste of time”), Report and Recommendation

adopted, 2019 WL 1620339 (M.D. Pa. Apr. 16, 2019). In the instant case,

Petitioner “has clearly failed to exhaust administrative remedies with respect

to the time credit he requests in the instant petition.” Kurti v. White, No. 1:19-

cv-2109, 2020 WL 2063871, at *3 (M.D. Pa. Apr. 29, 2020). Thus, the Court

agrees with Respondent that Petitioner’s §2241 petition must be dismissed

for failure to exhaust his administrative remedies.

B. Merits of Section 2241 Petition

Even if exhaustion were somehow excused, Brown’s petition fails on

the merits. Under the FSA, the Attorney General was charged with

development and release of a risk and needs assessment system (the

“System”) within 210 days of December 21, 2018—the date on which the

FSA was enacted. See 18 U.S.C. §3632(a). The System is utilized for (1)

determining an inmate’s recidivism risk; (2) assessing an inmate’s risk of

violent or serious misconduct; (3) determining the type and amount of

evidence-based recidivism reduction (“EBRR”) programming appropriate for

each inmate based on the prisoner’s criminogenic needs; (4) periodically

reassessing an inmate’s recidivism risk; (5) reassigning an inmate to

appropriate EBRR programs and “productive activities”1 (“PAs”); (6)

determining when to provide incentives and rewards for successful

participation in EBRR programs and PAs; and (7) determining when the

inmate is ready to transfer to pre-release custody or supervised release.

See id. In addition, the System provides guidance on the “type, amount, and

intensity of [EBRR] programming and [PA]s” to be assigned to each prisoner

based on the inmate’s specific criminogenic needs. See id. §3632(b).

The FSA allows eligible inmates who successfully complete EBRR

programs or PAs to receive time credits to be applied toward time in pre-

release custody or supervised release. See 18 U.S.C. §3632(d)(4)(A), (C).

An inmate can earn 10 days of credit for every 30 days of successful

participation. See id. §3632(d)(4)(A)(i). Moreover, eligible inmates assessed

at a minimum or low risk of recidivism who do not increase their risk of

recidivism over two consecutive assessments may earn 5 additional days of

time credit for every 30 days of successful participation, for a total of 15 days’

time credit per 30 days’ successful participation. Id. §3632(d)(4)(A)(ii).

1 The term “productive activity” is defined, in pertinent part, as “either a group

or individual activity that is designed to allow prisoners determined as having

a minimum or low risk of recidivating to remain productive and thereby

maintain a minimum or low risk of recidivating.” 18 U.S.C. §3635(5).

However, an inmate may not earn time credits for EBRR programs or PAs

completed prior to the statute’s enactment. See id. §3632(d)(4)(B)(i).

The Attorney General was allowed 210 days after the FSA was

enacted to develop and publish the System, which the BOP then used as a

guide to implement the EBRR programs and PAs. See id. §3632(a). The

Attorney General published the System on July 19, 2019, and the BOP thus

had 180 days, or until January 15, 2020, to implement it, complete

assessments, and begin to assign prisoners to appropriate EBRR programs.

See Kurti v. White, No. 1:19-cv-2109, 2020 WL 2063871, at *4 (M.D. Pa.

Apr. 29, 2020) (citing 18 U.S.C. §3621(h)).

Although there are numerous eligibility requirements to receive time

credits under the FSA, the question of Brown’s eligibility begins and ends

with his recidivism risk level under the System. Brown was assessed on four

occasions. On one occasion he was assessed a “high risk” and on three

occasions as a “medium risk” of recidivism. Under the FSA, to be eligible for

application of time credits when being placed in pre-release custody or

supervised release, the inmate must have “been determined under the

System to be a minimum or low risk to recidivate pursuant to” either the

last two reassessments (in the case of pre-release custody) or the last

reassessment (in the case of supervised release). See 18 U.S.C.

§3624(g)(1)(D)(i)(I), (ii) (emphasis added). Because all of Brown’s recidivism

risk assessments under the System have been “high,” or “medium”, even if

he had completed eligible programming, he still could not receive the

corresponding FSA time credits he seeks. Consequently, the Court cannot

grant Brown relief under Section 2241.

IV. Conclusion

For the reasons set forth above, the petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2241 will be denied.

An appropriate order will issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: April 29, 2022

22-0325-01

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.

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