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Gholson v. Flournoy

United States District Court, S.D. Georgia, Brunswick Division

October 20, 2017

JEFFREY CURTIS GHOLSON, Petitioner,
v.
VICTOR FLOURNOY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Petitioner Jeffrey Gholson (“Gholson”), who is housed at the Federal Correctional Institution in Jesup, Georgia (“FCI Jesup”), filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response, (doc. 12), and Gholson filed a Reply, (doc. 14). Gholson also filed a Motion for Judgment on the Pleadings, or in the alternative, a Motion for Hearing and Motion for Appointment of Counsel. (Doc. 15.) For the reasons which follow, I RECOMMEND that the Court DISMISS without prejudice Gholson's Petition due to his failure to exhaust his available administrative remedies prior to filing this Petition and DISMISS as moot all pending Motions. I further RECOMMEND that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Gholson leave to proceed in forma pauperis.

         Alternatively, as explained below, if the Court finds that Gholson has exhausted his available administrative remedies and reaches the merits of his Petition, the Court should DENY the overwhelming majority of Gholson's arguments. Gholson essentially seeks credit toward his federal sentence for over twenty-three (23) years of detention he spent incarcerated in state institutions. Because Gholson served that time before his federal sentence commenced and nearly all of that time was unquestionably credited toward his state sentences, Gholson cannot receive federal credit for those years of incarceration. Additionally, the Federal Bureau of Prisons (“BOP”) did not abuse its discretion when it denied Gholson's request to have his state facility of incarceration designated as the place where his federal sentence would be served. However, as explained below, the record is not clear if six (6) days of Gholson's prior custody was credited toward his state sentence.[1] Thus, should the Court reach the merits of Gholson's Petition, it will need to receive additional briefing to resolve his claims as to those six (6) days.

         BACKGROUND

         On February 4, 1993, Gholson was convicted in the United States District Court for the Middle District of Florida of bank robbery. (Doc. 12-1, pp. 11-15.) The Middle District of Florida sentenced Gholson to 188 months' imprisonment. (Id.) As explained in more detail below, subsequent to his federal sentencing, Gholson was returned to the custody of the State of Florida to answer pending state charges. (Id. at p. 2.) The state court imposed sentences totaling thirty-two (32) years of incarceration. (Id. at p. 72.) Gholson served those sentences in state facilities and entered federal custody on November 10, 2016, when he was paroled from his Florida state sentences. (Doc. 12, p. 2.) The BOP calculates his projected release date as July 3, 2030, via good conduct time release. (Doc. 12-1, p. 2.)

         In his Petition, Gholson contends that the BOP has miscalculated his sentence. (Doc. 1.) Specifically, he contends that his federal sentence should have commenced either when he was arrested on August 3, 1992, or when he was sentenced in the Middle District of Florida on February 4, 1993. (Id.) Gholson also contends that the BOP has improperly denied him credit toward his federal sentence for the time spent in local and state facilities prior to November 10, 2016. Additionally, he alleges the BOP wrongly denied his request to designate his State of Florida facility for the service of his federal sentence, which would have allowed his federal and state sentences to run concurrently.

         Respondent contends Gholson has received all of the credit against his federal sentence to which he is entitled. (Doc. 12, pp. 7-9.) Respondent posits that 18 U.S.C. § 3585(b) and BOP Program Statement 5880.28, Sentence Computation Manual (CCA of 1984), prohibit the application of the requested prior custody credit Gholson seeks because the time at issue was already applied toward the service of his state sentences. (Id. at p. 12.) Respondent also maintains that the BOP properly computed Petitioner's federal sentence to run consecutively to his state sentence and that the BOP properly reviewed and denied, in the exercise of its discretion, Gholson's request for a nunc pro tunc designation. (Id. at pp. 9-12.) Finally, Respondent maintains that Gholson failed to exhaust his available administrative remedies before bringing this Petition.

         DISCUSSION

         I. Whether Gholson Exhausted his Administrative Remedies

         A. Legal Requirements for Exhaustion

         The 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 Fed.Appx. 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 Fed.Appx. 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.”).

         The 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 Fed.Appx. 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 (2006).[2]

         The 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.

         Thus, 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) (finding that a plaintiff who is still awaiting a response from the warden regarding his grievance is still in the process of exhausting his administrative remedies).

         B. Standard of Review for Exhaustion

         “Even though a failure-to-exhaust defense is non-jurisdictional, it is like” a jurisdictional defense because such a determination “ordinarily does not deal with the merits” of a particular cause of action. Bryant, 530 F.3d at 1374 (internal punctuation and citation omitted). Further, a judge “may resolve factual questions” in instances where exhaustion of administrative remedies is a defense before the court. Id. In these instances, “it is proper for a judge to consider facts outside of the pleadings and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Id. at 1376.

         In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit set forth a “two-step process” that lower courts must employ when examining the issue of exhaustion of administrative remedies. First, the court is to take the plaintiff's version of the facts regarding exhaustion as true. Id. at 1082. If, even under the plaintiff's version of the facts, the plaintiff has not exhausted, the complaint must be dismissed. Id. However, if the parties' conflicting facts leave a dispute as to whether plaintiff has exhausted, the court need not accept all of plaintiff's facts as true. Id. Rather, “the court then proceeds to make specific findings in order to resolve the disputed factual issues[.]” Id. “Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies.” Id. at 1083. The Eleventh Circuit has held that a district court may consider materials outside of the pleadings and resolve factual disputes regarding exhaustion in conjunction with a Rule 12(b)(6) motion to dismiss so long as the factual disputes do not decide the merits of the case. See Bryant, 530 F.3d at 1376-77.

         C. Analysis of Gholson's Efforts at Exhaustion

         Inmates at FCI Jesup may grieve disputes through the BOP's multi-level administrative remedy procedure. This procedure is codified in 28 C.F.R. §542.10, et seq., and provides for the formal review of any complaint which relates to any aspect of the inmate's confinement, including disputes of sentence computations. (Doc. 12-1, p. 6.) This procedure generally commences with an attempt at informal resolution at the local level, which, if unsuccessful, is followed by filing a formal complaint with the Warden using a BP-9 form. (Id.) An inmate may appeal the Warden's response to the inmate's complaint by filing a BP-10 form with the Regional Director. (Id.) If the Regional Director denies the appeal, the inmate may then file a final appeal with the Office of General Counsel in Washington, D.C., by submitting a BP-11 form. (Id.); 28 C.F.R. § 542.15. An inmate must appeal through all three levels of the process to exhaust his administrative remedies.

         The evidence before the Court establishes that, though Gholson pursued some administrative remedies related to the allegations raised in his Petition, he did not exhaust all available remedies. (Doc. 12-1, pp. 6, 114-15.) He filed two grievances with the warden at FCI Jesup and two appeals with the Southeast Regional Office. (Id.) However, he did not appeal any of these filings to the Office of the General Counsel, the final step in the BOP's administrative remedy procedure. (Id.) Gholson's claims concern BOP-related matters, which must be appealed through the above-described process, and Gholson failed to do so. To achieve exhaustion, Gholson cannot merely take only the initial steps in the administrative process; he must pursue all available remedies, including a final appeal. See Bryant v. Rich, 530 F.3d at 1378. Additionally, based on Respondent's submissions, it appears that the BOP's administrative remedies were available to Gholson, and he has raised no contentions to the contrary.

         In his Reply, Gholson does not deny that he failed to pursue the BOP's administrative remedies or argue that those remedies were unavailable to him. To the contrary, he admits that he “has not exhausted his administrative remedies in this case, because Petitioner is suffering irreparable harm from each day of his continued illegal incarceration.” (Doc. 14, p. 5.) However, faced with similar arguments, the United States Supreme Court rejected any “special circumstances” exception to exhaustion requirements. Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1856-58 (June 6, 2016).

         Thus, even accepting Gholson's account as true, under the first Turner step, he failed to exhaust the prison's available administrative remedies prior to filing his Petition. Moreover, if the Court were to proceed to the second Turner step, the Court finds that Respondent's account of Gholson's exhaustion to be reliable and accurate. Ms. Kneyse Martin's affidavit and supporting materials reveal that administrative processes were available to Gholson to raise the claims regarding his sentence calculation, but he failed to fully pursue those remedies.

         Gholson failed to properly exhaust his available administrative remedies prior to filing this Petition. Consequently, the Court should DISMISS without prejudice Gholson's Petition.

         II. Merits of Gholson's Claims

         The Court need not address the merits of Gholson's claims due to his failure to exhaust his available administrative remedies. However, if the Court does reach the substance of his arguments, it should deny the overwhelming majority of Gholson's Petition for the following reasons. The only potentially viable claim Gholson makes is his entitlement to six (6) days' credit for custody served prior to the commencement of his federal sentence. To resolve this claim, the Court would need additional briefing and perhaps evidence from the parties.

         A. Whether the BOP Miscalculated ...


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