United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
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.
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. 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.
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.)
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.
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
Whether Gholson 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 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.”).
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
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) (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).
Standard of Review for Exhaustion
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.
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.
Analysis of Gholson's Efforts at Exhaustion
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
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.
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).
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
failed to properly exhaust his available administrative
remedies prior to filing this Petition. Consequently, the
Court should DISMISS without prejudice
Merits of Gholson's Claims
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.
Whether the BOP Miscalculated ...