MITCHEM

v.

WARDEN, FCC COLEMAN - LOW

Before the Court is Michael Ray Mitchem’s (“Petitioner”) Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Civ. Dkts.¹ & 4).1 The Warden of Federal Correctional Complex, United States Penitentiary – Low, in Coleman, Florida (“Respondent”) has responded with a Motion to Dismiss for failure to exhaust administrative remedies (Civ. Dkt. 8). Upon careful review, the Court dismisses Petitioner’s case without prejudice.

BACKGROUND

In November 2019, the United States District Court for the District of South Carolina sentenced Petitioner to an 80-month term of imprisonment followed by five

sentence of incarceration commenced on November 6, 2019. Civ. Dkt. 8-1 at 3. Accordingly, with good conduct time credits, the Bureau of Prisons (“BOP”) initially projected that Petitioner would be released on December 17, 2024. Id.

On October 19, 2022, Petitioner filed the instant Petition. Civ. Dkt. 1. Petitioner filed his Amended Petition on the proper § 2241 form less than one month later. Civ. Dkt. 4. Petitioner claims that “[t]he BOP is withholding [First Step Act] [earned credit time] in violation of due process.” Id. at 4. Petitioner believes that,

with a proper computation of credits as provided for by the First Step Act, he is entitled to “immediate release[.]” Id. at 8. On January 30, 2023, Respondent filed a Motion to Dismiss. Civ. Dkt. 8.

Respondent argues that Petitioner has failed to exhaust his administrative remedies by his own admission. Id. at 2, 6. In addition, Respondent indicates that, “during the short time that [Petitioner’s] petition has been pending, BOP has awarded him with the FSA time credits he requests and updated his release date to December 18, 2023.”

Id. at 2.

DISCUSSION

A § 2241 petition provides grounds for “attack[ing] the execution, rather than

the validity” of a petitioner’s sentence. McCarthan v. Dir. of Goodwill Indus.- Suncoast, Inc., 851 F. 3d 1076, 1079 (11th Cir. 2017) (en banc). A petitioner, however, must exhaust available administrative remedies before he may file a § 2241

petition. Santiago-Lugo v. Warden, 785 F. 3d 467, 474–75 (11th Cir. 2015). This requires compliance with the relevant agency’s deadlines and procedural rules. See Woodford v. Ngo, 548 U.S. 81, 90–91 (2006) (addressing the exhaustion requirement

in the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e et seq.). Because calculating credits towards an inmate’s sentence is an administrative function of the BOP, the BOP’s Administrative Remedy Program (“ARP”) sets the parameters for exhaustion here. See 28 C.F.R. §§ 542.10–542.19. The ARP provides

for three levels of review. First, an inmate must file an administrative remedy request with the institution where he is incarcerated. Id. § 540.14. Second, if the institution denies the requested remedy, the inmate must file a regional appeal with the office

for the geographic region in which the inmate is confined. Id. § 542.15. Third, if the regional office denies the requested remedy, an inmate must file a central office administrative remedy appeal to the BOP’s Office of General Counsel. Id. Only upon receiving a denial from the BOP’s Office of General Counsel are an inmate’s

administrative remedies considered exhausted. Petitioner has not exhausted his administrative remedies. As Petitioner admits, this is his “first attempt to correct the problem.” Civ. Dkt. 4 at 7. Respondent’s attached SENTRY report further confirms this statement. Civ. Dkt. 8-2 at 1. Indeed, there is no record of Petitioner ever filing an administrative remedy request. Id.

Petitioner’s argument that completing the administrative appeal process would have been futile is unavailing. Civ. Dkt. 1 at 6–8. Petitioner cannot claim that the administrative appeal process would be a “procedural dead-end” requiring too

much time where the BOP has already awarded him significant relief during the pendency of this Petition. Civ. Dkt. 8-1 at 4. Petitioner must exhaust his administrative remedies before seeking relief in this Court. See Alexander v. Hawk, 159 F. 3d 1321, 1327 (11th Cir. 1998) (finding that “[r]equiring mandatory

exhaustion if a prison has an available administrative grievance procedure is consistent with this Court's longstanding recognition of the usefulness of exhaustion requirements.”).

Accordingly, it is hereby ORDERED and ADJUDGED: (1) This action is dismissed without prejudice for failure to exhaust administrative remedies. (2) The Clerk is directed to enter judgment for Respondent against Petitioner

and Close this case. (3) Petitioner is denied a Certificate of Appealability, as he has not made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner therefore may not proceed on appeal in forma pauperis.

DONE AND ORDERED at Tampa, Florida, on April 12, 2023. /s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO: Counsel of Record Petitioner, Pro Se