United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
Miguel Angel Compean (“Compean”), who is
currently housed at D. Ray James Correctional Facility in
Folkston, Georgia, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Doc. 2.) Respondent filed
a Response, (doc. 9), and Compean filed a Reply, (doc. 12).
In their briefs, the parties dispute whether the Federal
Bureau of Prisons (“BOP”) properly calculated the
service of Compean's sentence issued by the United States
District Court for the Western District of Texas. As detailed
below, Compean failed to exhaust his available administrative
remedies prior to bringing this issue to this Court. Thus, I
RECOMMEND that the Court DISMISS
without prejudice Compean's Petition,
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Compean
in forma pauperis status on appeal.
as explained below, if the Court does not dismiss
Compean's Petition for failure to exhaust, the Court will
need to expand the record to address the merits of
Compean's Petition. Respondent's substantive
arguments and supporting documentation regarding
Compean's sentencing calculation are incomplete and give
rise to grave concerns regarding the BOP's calculation of
Compean's sentence. Given these concerns, I
ORDER Respondent's counsel to provide a
copy of this Report and Recommendation to the Section Chief
for Sentence Computations at BOP's Designation and
Sentence Computation Center.
December 7, 2012, an officer with the Greenville, Texas,
Police Department arrested Compean for violating a promise to
appear and the traffic violations of driving while license
invalid and driving with a child under eight not secured by a
safety belt. (Doc. 9-2, pp. 5-18, 40.) These misdemeanor
offenses were charged in the Justice Court, Precinct 2,
Collin County, Texas, in Case Numbers 01-TR-12-00382,
01-TR-11-05935, 01-TR-11-05936. (Id.) Though the Court
does not have complete records for these misdemeanor cases,
it appears that Compean posted bond after his arrest, as the
docket reports for all three cases include the notation
“Posted Bond.” (Id. at pp. 9, 13, 17.)
However, Compean remained in the Hunt County Jail.
(Id.) Compean entered nolo contendere pleas in these
three cases on December 8, 2012. (Id.) He received
fines of: $155.00 in Case Number 01-TR-11-05935; $21.75 in
Case Number 01-TR-11-05936; and $250.00 in Case Number
01-TR-12-00382. (Id.) It appears Compean paid these
fines by some method, as the docket sheets list his fine
amount balance as “$0.00.” (Id.) The
Justice Court did not sentence Compean to any time in custody
on these charges. Rather, the case dockets indicate that he
was released from the Hunt County Jail on December 10, 2012,
and the documents regarding these cases include notations of
“Time Served.” (Id.)
December 6, 2012, the day before the Greenville, Texas,
Police Department arrested Compean on the state traffic
charges, United States Magistrate Judge David Counts of the
United States District Court for the Western District of
Texas signed a criminal complaint charging Compean with the
federal offense of providing false information to a federal
firearms licensee. Compl., United States v. Compean,
Case No. 7:12-mj-453 (W.D. Tex. Dec. 6, 2012), ECF No. 1.
Judge Counts also issued a warrant for Compean's arrest.
Warrant, United States v. Compean, et al., Case No.
No. 7:12-cr-340 (W.D. Tex. Dec. 19, 2012), ECF No. 2.
However, the United States also sought, and the Court issued,
a writ of habeas corpus ad prosequendum.
Application, Order, & Writ, United States v.
Compean, Case No. 7:12-mj-453 (W.D. Tex. Dec. 6, 2012),
ECF Nos. 3, 4, 5. That writ directed the Greenville Police
Department to deliver Compean to the United States Marshals
and for Compean to remain in the Marshals' custody during
the proceedings in Case Number 7:12-mj-453, the federal
criminal complaint case then pending against
December 11, 2012, the United States Marshals Service took
custody of Compean. (Doc. 9-2, p. 28.) The arrest warrant was
returned unexecuted with a notation that it was
“superceded By Writ Dated 12/6/12.” Unexecuted
Arrest Warrant, United States v. Compean, et al.,
7:12-cr-340 (W.D. Tex. Dec. 19, 2012), ECF No. 6. It does not
appear that Compean had an initial appearance or any other
hearings in Case Number 7:12-mj-453, and the case was
terminated on December 19, 2012. Docket, United States v.
Compean, 7:12-mj-453 (W.D. Tex. Dec. 6, 2012).
December 19, 2012, the grand jury for the Western District of
Texas returned a ten-count indictment against Compean and two
co-defendants. Indictment, United States v. Compean, et
al., 7:12-cr-340 (W.D. Tex. Dec. 19, 2012), ECF No. 9.
The grand jury charged Compean with committing: conspiracy to
smuggle goods from the United States (Count One); giving a
false statement in the acquisition of a firearm (Counts Four,
Six, Seven, Eight, Nine, and Ten); and aggravated identity
theft (Counts Five and Seven). Id. On December 26,
2017, Judge Counts entered an Order of Temporary Detention
ordering that Compean be held without bond until January 9,
2013. Order, United States v. Compean, et al.,
7:12-cr-340 (W.D. Tex. Dec. 26, 2012), ECF No. 16. Judge
Counts ordered “the attorney for the Government to
notify the appropriate court, probation or parole official,
or state or local law enforcement official, or the
appropriate official of the Immigration and Naturalization
Service so that the custody of the Defendant can be
transferred[.]” Id. On January 9, 2013, after
Compean waived his right to a detention hearing, Judge Counts
granted the Government's motion for detention and ordered
that Compean be detained. Order, United States v.
Compean, et al., 7:12-cr-340 (W.D. Tex. Jan. 9, 2013),
ECF No. 30.
to a negotiated plea agreement, on February 11, 2013, Compean
pled guilty to Counts One, Four, and Five of the federal
Indictment, and the Government dismissed Counts Six through
Ten. On May 16, 2013, the Honorable Robert Junell, United
States District Judge for the Western District of Texas,
sentenced Compean to terms of imprisonment of sixty months on
Count One and ninety-seven months on Count Four, to be served
concurrently, as well as twenty-four months imprisonment on
Count Five, to be served consecutively to Counts One and
Four. (Doc. 9-2, pp. 32-38.) Thus, Compean received a
sentence with an aggregate term of imprisonment of 121
months. Judge Junell ordered that Compean remain in custody
pending service of his sentence. (Id.) Compean is
currently serving this sentence at D. Ray James, and he has a
projected release date of March 15, 2022.
time of his December 7, 2012, arrest on and throughout his
federal case, Compean also had additional state traffic
citation warrants outstanding in Justice Court, Precinct 2,
Collin County, Texas. These warrants were filed in Justice
Court Case Numbers 02-TR-12-00497 (expired driver's
license) and 02-TR-12-00796 (violation of promise for failure
to appear). (Id. at pp. 20-27.) Though these
misdemeanor warrants were issued on March 12, 2012, they were
not executed when Compean was arrested on December 6, 2012.
(Id.) Though the Court does not have complete
records for these misdemeanor cases, it appears that Compean
was never actually arrested on these warrants. (Id.)
On June 3, 2013, approximately two weeks after Compean was
sentenced in his federal case, he entered pleas of nolo
contendere in Case Numbers 02-TR-12-00497 and 02-TR-12-00796.
(Id. at pp. 21, 25.) Compean received a fine of
$55.00 in Case Number 02-TR-12-00497 and $140.00 in Case
Number 02-TR-12-00796. (Id.) It appears Compean paid
these fines by some method, as the docket sheets list his
fine amount balance as “$0.00.” (Id.)
The Justice Court did not sentence Compean to any time in
custody on these charges. However, the case dockets list his
warrant status as “Time Served”, and his release
is noted as “Time Served” on a document signed by
Judge Terry L. Douglas, the Justice of the Peace for Precinct
2 of the Collin County Justice Court. (Id. at pp.
21, 25, 40.)
Section 2241 Petition, Compean generally argues that he
should be awarded credit toward his federal sentence for the
time he was in custody after his arrest on December 7,
2012.(Doc. 2.) He contends that he was able to
obtain a bond on the state traffic charges, and he only
remained in custody after his arrest so that he could be
turned over to federal authorities. (Id. at pp.
3-4.) Further, in his Reply, Compean argues that any time he
spent in custody could not have been credited toward any
state sentences, because those sentences were for Class C
misdemeanors, which are only punishable by a fine under Texas
law. (Doc. 12, pp. 2-3.) Thus, Compean reasons, the Collin
County Justice Court did not impose (and could not have
imposed) a sentence of detention. (Id.)
maintains that this Court should not reach the merits of
Compean's arguments because he failed to exhaust his
administrative remedies concerning his sentence calculation.
(Doc. 9, pp. 5-8.) Respondent offers the Affidavit of Glenda
Dykes, an Administrative Remedy Clerk with the BOP, in
support of this argument. (Doc. 9-1.) Respondent also
contends that Compean cannot receive the months of credit he
seeks toward his federal sentence because he already received
credit for that time toward state sentences. (Doc. 9, pp.
8-10.) For this argument, Respondent primarily relies upon
the Affidavit of Forest Kelly, a Correctional Programs
Specialist at the BOP's Designation and Sentence
Computation Center. (Doc. 9-2.)
Whether Compean Exhausted his Administrative
Legal Requirements for Exhaustion
Eleventh Circuit Court of Appeals has held that a Section
2241 petitioner's failure to exhaust administrative
remedies is not a jurisdictional defect. Santiago-Lugo v.
Warden, 785 F.3d 467, 474 (11th Cir. 2015); see also
Fleming v. Warden of FCI Tallahassee, 631 F. App'x
840, 842 (11th Cir. 2015) (“[Section] 2241's
exhaustion requirement was judicially imposed, not
congressionally mandated, and . . . nothing in the statute
itself support[s] the conclusion that the requirement [is]
jurisdictional.”). Nevertheless, the Eleventh Circuit
has noted “that the exhaustion requirement is still a
requirement and that courts cannot ‘disregard a failure
to exhaust . . . if the respondent properly asserts the
defense.'” Id. (citing
Santiago-Lugo, 785 F.3d at 475). Failure to exhaust
administrative remedies is an affirmative defense and inmates
are not required to specially plead or demonstrate exhaustion
in their complaint. Jones v. Bock, 549 U.S. 199, 216
(2007). However, the normal pleading rules still apply, and
dismissal is appropriate when an affirmative defense appears
on the face of a complaint-making it clear that a prisoner
cannot state a claim for relief. Id. at 214-15.
Thus, when a party admits in his complaint or petition that
he has not exhausted the grievance process, dismissal is
warranted. See Okpala v. Drew, 248 F. App'x 72
(11th Cir. 2007); Cole v. Ellis, No.
5:10-CV-00316-RS-GRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec.
28, 2010); Rashid v. Liberty Cty. Jail, CV410-092,
2010 WL 3239241, at *1 n.1 (S.D. Ga. May 3, 2010)
(“Nothing in Jones . . . forbids the Court
from dismissing a complaint pursuant to [42 U.S.C.] §
1997e(a) if it is clear from the face of the complaint that
the prisoner has not exhausted all administrative remedies
available to him.”).
requirement that the exhaustion of remedies occur
“first in an agency setting allows ‘the agency
[to] develop the necessary factual background upon which
decisions should be based' and giv[es] ‘the agency
a chance to discover and correct its own errors.'”
Green v. Sec'y for Dep't of Corr., 212 F.
App'x 869, 871 (11th Cir. 2006) (quoting Alexander v.
Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998) (first
alteration in original)). Furthermore, requiring exhaustion
in the prison setting “eliminate[s] unwarranted
federal-court interference with the administration of
prisons” and allows “corrections officials time
and opportunity to address complaints internally before
allowing the initiation of a federal case.”
Woodford v. Ngo, 548 U.S. 81, 93
United States Supreme Court has noted exhaustion must be
“proper.” Id. at 92. “Proper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules because no adjudicative
system can function effectively without imposing some orderly
structure on the course of its proceedings.”
Id. at 90-91. In other words, an institution's
requirements define what is considered exhaustion.
Jones, 549 U.S. at 218. It is not the role of the
court to consider the adequacy or futility of the
administrative remedies afforded to the inmate.
Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th
Cir. 2000). The court's focus should be on what remedies
are available and whether the inmate pursued these remedies
prior to filing suit. Id.
under the law, prisoners must do more than simply initiate
grievances; they must also appeal any denial of relief
through all levels of review that comprise the agency's
administrative grievance process. Bryant v. Rich,
530 F.3d 1368, 1378 (11th Cir. 2008) (“To exhaust
administrative remedies in accordance with the PLRA [Prison
Litigation Reform Act], prisoners must ‘properly take
each step within the administrative process.'”)
(quoting Johnson v. Meadows, 418 F.3d 1152, 1157
(11th Cir. 2005)); Sewell v. Ramsey, No. CV406-159,
2007 WL 201269 (S.D. Ga. Jan. 27, 2007) ...