# Calo Diaz v. Barraza

> District Court, M.D. Pennsylvania · July 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10413420

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** July 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10413420

## How later opinions describe it (automated extraction)

- explaining that the Third Circuit has “adhered to the exhaustion doctrine for several reasons[,]” including “administrative autonomy[, which] requires that an agency be given an opportunity to correct its own errors” (citations and internal quotation marks omitted)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANGEL LUIS CALO DIAZ, :
Petitioner :
: No. 1:23-cv-00777
v. :
: (Judge Kane)
WARDEN BARRAZA, :
Respondent :

MEMORANDUM

Pending before the Court is Petitioner Angel Luis Calo Diaz (“Petitioner”)’s petition for a
writ of habeas corpus filed pursuant to the provisions of 28 U.S.C. § 2241 (“Section 2241”).
(Doc. No. 1.) He seeks an order directing the Federal Bureau of Prisons (“BOP”) to award him
earned time credits, as required under the First Step Act (“FSA”) of 2018. (Id.) For the reasons
set forth below, the petition will be denied.
I. BACKGROUND

Petitioner is currently serving a sixty-three (63) month term of imprisonment imposed by
the United States District Court for the Western District of New York for a conviction of
conspiracy to possess with intent to distribute cocaine. (Doc. No. 7-1 at 1, ¶ 3.) He entered the
custody of the BOP on December 22, 2022 (id. at 4), and his projected release date, via good
conduct time, is March 26, 2026 (id. at 1, ¶ 3).
On May 11, 2023, while Petitioner was incarcerated at Federal Correctional Institution
Allenwood Medium in White Deer, Pennsylvania, he commenced the above-captioned action by
filing his Section 2241 petition (Doc. No. 1) and subsequently paying the requisite filing fee
(Doc. No. 4). Petitioner contends that the BOP has unlawfully denied him earned time credits
under the FSA. (Doc. No. 1.) In support, he asserts the following grounds: that he has a
“medium” recidivism risk level in the “[g]eneral score” and a “low” recidivism risk level in the
“[v]iolent score[;]” he has made a good faith effort to lower his recidivism risk level, but there
are “no more programs” in which he can participate in order to do so; and the warden can
authorize his earned time credits to be applied to his federal sentence, regardless of his
recidivism risk level, but Respondent has unlawfully removed that authority from the warden.1

(Id. at 8.) As for relief, Petitioner requests that the Court order the BOP to apply his FSA earned
time credits to his federal sentence. (Id.)
On June 8, 2023, the Court, inter alia, deemed the petition filed, directed service of the
petition on Respondent, and instructed Respondent to file a response to the allegations contained
in the petition within twenty (20) days. (Doc. No. 5.) On June 27, 2023, Respondent filed a
response, arguing that the Court should dismiss the petition because Petitioner failed to exhaust
his administrative remedies and because, alternatively, his petition is without merit since the
BOP properly determined that he is not eligible to have his earned time credits applied to his
federal sentence. (Doc. No. 7.) As reflected by the Court’s docket, Petitioner has not filed a
reply, and the time period for doing so has passed. Thus, the petition is ripe for the Court’s

resolution.
II. DISCUSSION

A. Exhaustion
While there is no statutory exhaustion requirement for habeas corpus petitions brought
pursuant to the provisions of Section 2241, the United States Court of Appeals for the Third
Circuit has recognized that “[f]ederal prisoners are ordinarily required to exhaust their
administrative remedies before petitioning for a writ of habeas corpus pursuant to [Section]

1 Respondent is the warden of Federal Correctional Institution Allenwood Medium. (Doc. No. 1
at 1.) Thus, the Court presumes that Petitioner is more generally referring to the institution.
2241.” See Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996) (citations
omitted); Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000). Exhaustion is required because:
“(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.” See Moscato, 98 F.3d at 761–62 (citations omitted); Bradshaw v. Carlson, 682 F.2d
1050, 1052 (3d Cir. 1981).
However, exhaustion of administrative remedies is not required where these underlying
reasons for exhaustion would not be served. See id. (citations omitted); Coleman v. U.S. Parole
Comm’n, 644 F. App’x 159, 162 (3d Cir. 2016) (unpublished). “For example, exhaustion may
be excused where it ‘would be futile, if the actions of the agency clearly and unambiguously
violate statutory or constitutional rights, or if the administrative procedure is clearly shown to be
inadequate to prevent irreparable harm.’” See Brown v. Warden Canaan USP, 763 F. App’x
296, 297 (3d Cir. 2019) (unpublished) (quoting Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d

Cir. 1988)).
In order to exhaust administrative remedies, a federal inmate must comply with the
procedural requirements of the BOP’s administrative remedy process, which are set forth in the
Code of Federal Regulations. See generally 28 C.F.R. §§ 542.10–542.19. Under these
regulations, an inmate shall first attempt informal resolution of his complaint with staff and, if
the inmate is unable to resolve his complaint informally, he shall submit a formal, written request
on the proper form to the designated staff member. See id. §§ 542.13–542.14. If the inmate is
not satisfied with the Warden’s response, the inmate shall then submit an appeal to the Regional
Director, using the appropriate form. See id. § 542.15(a). And, finally, if the inmate is not
satisfied with the Regional Director’s response, then the inmate shall submit an appeal to the
Office of the General Counsel, located in the BOP Central Office, using the appropriate form.
See id. An inmate is not deemed to have exhausted his administrative remedies until his
complaint has been pursued at all levels. See id. (explaining that an “[a]ppeal to the General

Counsel is the final administrative appeal”).
Here, the record reflects that Petitioner has not filed any administrative remedies while in
the custody of the BOP. See (Doc. No. 7-1 at 2, ¶ 5; id. at 6 (containing the “Administrative
Remedy Generalized Retrieval” report for Petitioner)).2 Thus, because the record reflects that
Petitioner has not filed any administrative remedies, there is no basis upon which the Court could
conclude that he properly or fully exhausted his remedies in accordance with the BOP’s
administrative remedy process.
Moreover, Petitioner appears to concede that he did not exhaust his administrative
remedies before filing his petition in this Court and, instead, argues that he is asserting “a
question of interpretation of law that only the court can resolve[.]” (Doc. No. 1 at 2.) The Court

agrees with Respondent, however, that Petitioner has not demonstrated that he should be excused
from exhausting his administrative remedies. (Doc. No. 7 at 6–7.) In particular, the Court finds
that Petitioner has not alleged any facts from which the conclusion could be drawn that requiring
him to resort to his administrative remedies would be futile, that the BOP has clearly and

2 “The BOP maintains a database known as the SENTRY Inmate Management System
(‘SENTRY’).” See Torres v. Spaulding, No. 3:22-cv-01701, 2022 WL 17477084, at *2 (M.D.
Pa. Dec. 6, 2022). During “the ordinary course of business, computerized indexes of all formal
administrative remedies filed by [BOP] inmates are maintained by the Institution, Regional, and
Central Offices.” See id. SENTRY, in turn, “generates a report titled ‘Administrative Remedy
Generalized Retrieval[,]’ which allows codes to be entered to identify the reason or reasons for
rejecting a request for administrative relief.” See id.
unequivocally violated his statutory or constitutional rights,3 or that the BOP’s administrative
remedy procedure is inadequate to prevent irreparable harm to him.
In addition, because Petitioner contends that the BOP should be ordered to apply his
earned time credits to his federal sentence, the Court finds that he must first present this request

to BOP officials so that they can determine whether he is eligible for such credits under the FSA
and, if so, how many credits he has earned. See Moscato, 98 F.3d at 761–62 (explaining that
exhaustion is required because, among other things, it provides “agencies the opportunity to
correct their own errors[,]” thereby fostering “administrative autonomy” (citations omitted));
Bradshaw, 682 F.2d at 1052 (explaining that the Third Circuit has “adhered to the exhaustion
doctrine for several reasons[,]” including “administrative autonomy[, which] requires that an
agency be given an opportunity to correct its own errors” (citations and internal quotation marks
omitted)).
Thus, for all of these reasons, the Court concludes that Petitioner’s Section 2241 petition
is subject to dismissal for failure to exhaust his administrative remedies. See Laguerra v.

Spaulding, No. 21-cv-01116, 2022 WL 68390, at *2 (M.D. Pa. Jan. 6, 2022) (concluding that the
Section 2241 petitioner had failed to exhaust his claim seeking an award of federal time credits
under the FSA because he had presented no facts that the BOP violated statutory or
constitutional rights or that exhausting his administrative remedies would subject him to
irreparable injury). Even assuming arguendo, however, that Petitioner exhausted his
administrative remedies, he is not entitled to relief on the merits.

3 As discussed below, Respondent argues, and persuasively, that Petitioner is ineligible for
earned time credits under the FSA because he has a high recidivism risk level. (Doc. No. 7 at 7–
10.)
B. The Merits

Under the FSA, an eligible inmate “who successfully completes evidence-based
recidivism reduction programming or productive activities, shall earn time credits” which “shall
be applied toward time in prerelease custody or supervised release.” See 18 U.S.C. §
3632(d)(4)(A), (C). More specifically, the FSA allows eligible inmates to earn ten (10) days of
time credits for every thirty (30) days of successful participation in evidence-based recidivism
reduction (“EBRR”) programming or productive activities (“PAs”). See id. § 3632(d)(4)(A)(i).
Additionally, if the BOP determines that the inmate is at a minimum or low risk of recidivism
and has not increased his or her risk of recidivism over two (2) consecutive assessments, then the
inmate shall earn an additional five (5) days of time credit for every thirty (30) days of successful
participation in EBRR programming or PAs. See id. § 3632(d)(4)(A)(ii).
In addition, under Section 3624(g) of the FSA, placement in prerelease custody requires
that the inmate has been determined “to be a minimum or low risk to recidivate pursuant to the
last 2 reassessments of the prisoner[.]” See id. § 3624(g)(1)(D)(i). Similarly, under Section

3624(g) of the FSA, an early transfer to supervised release requires that the inmate has been
determined “to be a minimum or low risk to recidivate pursuant to the last reassessment of the
prisoner.” See id. § 3624(g)(1)(D)(ii). In other words, in both of these situations—i.e.,
placement in prelease custody or early transfer to supervised release—application of earned time
credits under the FSA cannot occur until the inmate has been determined to be a minimum or
low recidivism risk. See id. § 3624(g)(1)(D)(i)–(ii).
If the inmate is unable to satisfy this requirement concerning his recidivism risk level,
then he may petition the warden of the prison to be individually considered for placement in
prelease custody or supervised release. See 18 U.S.C. § 3624(g)(1)(D)(i)(II). The warden, in
turn, can approve the inmate’s “petition to be transferred to prerelease custody or supervised
release” upon concluding that: (1) the inmate “would not be a danger to society if transferred to
prerelease custody or supervised release;” (2) the inmate “has made a good faith effort to lower
[his] recidivism risk through participation in recidivism reduction programs or productive

activities;” and (3) the inmate “is unlikely to recidivate[.]” See id. § 3624(g)(1)(D)(i)(II)(aa)–
(cc); see also 28 C.F.R. § 523.44(c)(2)(i)–(iii).
Here, the record suggests that Petitioner has earned FSA time credits. (Doc. No. 7-1 at 2,
¶ 8; id. at 7.) The record further reflects, however, that such credits cannot be applied toward
time in prerelease custody or supervised release because Petitioner has a high recidivism risk
level. (Id. at 7 (revealing that Petitioner was assessed with a high recidivism risk level on
December 22, 2022, and again on January 19, 2023)); see also Navarro v. Barraza, No. 3:23-cv-
00514, 2023 WL 3483235, at *3 (M.D. Pa. May 16, 2023) (stating that “[i]nmates who are
eligible for FSA time credits can accrue credits, but they cannot be applied until the inmate has
earned a low or minimum recidivism risk” (citation omitted)). Accordingly, as explicitly

prescribed by Congress, Petitioner will not be eligible for application of earned time credits until,
inter alia, his recidivism risk level is reduced to minimum or low.
Finally, to the extent that Petitioner contends that Respondent has unlawfully removed
the warden’s authority to individually approve application of earned time credits for inmates who
have high or medium recidivism risk levels (Doc. No. 1 at 8), the Court finds that Petitioner’s
argument is unavailing. While, as discussed above, Section 3624(g) of the FSA authorizes the
warden (i.e., Respondent) to deem such inmates eligible for application of earned time credits,
Petitioner has neither alleged, nor shown, that he petitioned the warden for this specific approval
or that the warden approved his petition. See 18 U.S.C. § 3624(g)(1)(D)(i)(II)(aa)–(cc)
(explaining that the warden of the prison can approve an inmate’s “petition to be transferred to
prerelease custody or supervised release” after the warden has determined that: (1) the inmate
“would not be a danger to society if transferred to prerelease custody or supervised release;” (2)
the inmate “has made a good faith effort to lower [his] recidivism risk through participation in

recidivism reduction programs or productive activities;” and (3) the inmate “is unlikely to
recidivate”). Accordingly, Petitioner’s Section 2241 petition will be denied.
III. CONCLUSION

For all of the foregoing reasons, the Court will deny the instant habeas corpus petition.
An appropriate Order follows.

s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413420. Public record. Not legal advice.