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Brown v. Tatum

United States District Court, S.D. West Virginia, Bluefield Division

February 26, 2018

ESKER “LEE” TATUM, Warden, FCI Berlin.[1] Respondent.



         Pending before the Court is a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 filed by Petitioner Louis Edward Brown, Jr., (ECF No. 1), and a response that moves for dismissal of the petition, filed by Respondent. (ECF No. 6). This matter is assigned to the Honorable David A. Faber, United States District Judge, and by Standing Order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having thoroughly considered the record, the undersigned FINDS that Petitioner is clearly not entitled to relief; therefore, the undersigned RECOMMENDS that his § 2241 petition be DENIED; Respondent's motion to dismiss be GRANTED; and this matter be DISMISSED from the docket of the Court.

         I. Relevant Factual and Procedural Background

         Petitioner was arrested by the Commonwealth of Virginia (the “State”) on narcotics charges on November 30, 2012 and was released on bond on March 1, 2013. (ECF No. 6 at 10, 13, 14). On March 26, 2013, Petitioner was arrested and detained by federal authorities and subsequently pled guilty to distribution of heroin in violation of federal law on December 18, 2013. (Id. at 10, 16); United States v. Brown, No. 7:12-cr-00073-003 (W.D. Va. 2013), ECF Nos. 154, 156. On February 14, 2014, while Petitioner was still in federal custody, a judgment of conviction was entered on his state charges, sentencing him to 1 year and 1 month of incarceration to be served after he completed his federal sentence. (ECF No. 6 at 21). On May 23, 2014, Petitioner received his federal sentence, which imposed a term of 151-months imprisonment. He was granted prior custody credit for the time spent in state custody from November 30, 2012 through March 1, 2013, as well his time in federal custody beginning with his arrest on March 26, 2013 through May 22, 2014, the day before his federal sentence began. (Id. at 26-27, 34).

         On April 5, 2016, Petitioner filed the instant § 2241 petition, stating that he is improperly committed to federal custody, because he was arrested and sentenced on state charges more than 90 days prior to the federal sentencing. (ECF No. 1 at 6). He contends that he should have been returned to state custody and cannot be made to serve a “piecemeal sentence after a lawful conviction has been entered.” (Id. at 7). Petitioner further argues that the federal authorities incorrectly have a state detainer lodged against him such that he will be taken into state custody upon his federal release. (Id. at 8). In his prayer for relief, Petitioner asks the Court to order Respondent to return Petitioner to state custody, or “negotiate for a ‘nunc pro tunc' designation, and order Respondent to remove the unlawful detainer, as the State has “no detainer lodged.” (Id.).

         Respondent filed a memorandum in opposition to the § 2241 petition, asking the Court to dismiss this action. To begin, Respondent contends that Petitioner failed to exhaust administrative remedies, which is a precondition to filing a habeas corpus actions and, for this reason, the petition should be summarily rejected. In addition, Respondent argues that Petitioner is properly held in federal custody. Respondent explains that the State relinquished jurisdiction over Petitioner when it released him on bond. Thereafter, federal authorities arrested Petitioner, assuming primary jurisdiction over him, and have maintained primary jurisdiction by detaining Petitioner in federal custody since his arrest. (Id. at 4-5).

         After filing his petition for habeas relief, Petitioner was moved to FCI Berlin. He sought an extension of time to reply to Respondent's request for a dismissal on the basis that he was placed in the Special Housing Unit (SHU) until August 23, 2016 and needed his legal materials to respond. (ECF No. 8 at 1). The undersigned granted Petitioner an extension through November 11, 2016. (ECF No. 9). However, Petitioner never filed a reply, or moved for a further extension. Therefore, the § 2241 petition is ripe for review.

         II. Discussion

         Petitioner asserts in this § 2241 action that he is being held improperly in federal custody, arguing that the State has “primary jurisdiction” over him by virtue of arresting and sentencing him prior to imposition of his federal sentence. (ECF No. 1 at 2). Petitioner seeks a transfer to state custody, or a nunc pro tunc designation. (Id. at 8). He does not expressly counter Respondent's contention that he failed to exhaust available administrative remedies, but indicates in his petition that he challenged the BOP's custody by email and correspondence. Petitioner's grounds for habeas relief are addressed in turn below.

         A. Exhaustion

         Although § 2241 does not itself contain an exhaustion prerequisite, courts have judicially imposed a duty on prisoners to exhaust administrative remedies before bringing a claim under that statute. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490- 91 (1973); see also McClung v. Shearin, No. 03-6952, 2004 WL 225093, at *1 (4th Cir. Feb.6, 2004) (citing Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.2001)). The court may, in its discretion, waive exhaustion under certain circumstances, such as “when a petitioner demonstrates futility, the actions of the agency clearly and unambiguously violate statutory or constitutional rights, or the administrative procedure is clearly shown to be inadequate to prevent irreparable harm.” Wright v. Warden, Civil Action RDB-10-671, 2010 WL 1258181, * 1 (D. Md. Mar. 24, 2010).

         The BOP's Administrative Remedy Program, 28 C.F.R. § 542.10, et seq., provides a process by which an inmate can seek review of an issue relating to any aspect of his or her confinement. With certain exceptions, an inmate must first present the issue of concern informally to a BOP staff member within the procedures prescribed by the warden of the institution in which the inmate is confined. Id. at § 542.13. An inmate can then file a formal written Administrative Remedy Request on the specified form. Id. at § 542.14. If the inmate is unsatisfied with the warden's response to the request, the inmate can appeal the decision to the appropriate regional director and can then appeal the response of the regional director to the general counsel. Id. at § 542.15. The administrative remedy request and appeals must comply with the requirements specified by the BOP. Id. at §§ 542.14, 542.15.

         In this case, Petitioner presented his “improper commitment” issue to various individuals and received a response from the warden of the facility in which he was incarcerated. (ECF No. 1 at 14). However, there is no evidence that Petitioner pursued the formal administrative remedy process, much less exhausted his administrative remedies on this issue. Petitioner does not dispute Respondent's claim and attached documentation that Petitioner has filed only one formal administrative remedy request, and that request concerned a residential reentry center. (ECF No. 6 at 3-4, 10, 38-39). Therefore, the undersigned FINDS that Petitioner has not exhausted the available administrative remedies.

         B. ...

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