United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
Mateo Perez ("Perez"), who is housed at the D. Ray
James Correctional Facility in Folkston, Georgia, filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1.) Respondent filed a Response. (Doc. 8.)
For the reasons which follow, I RECOMMEND
that the Court DISMISS Perez's Petition
WITHOUT PREJUDICE, DIRECT the Clerk of Court
to CLOSE this case, and
DENY Perez in forma pauperis status
pleaded guilty in the United States District Court for the
Northern District of Georgia to illegal reentry of deported
alien, in violation of 8 U.S.C. §§ 1326(a) and
(b)(2). Order, United States v. Perez-Maldonado,
2:11-cr-9 (N.D.Ga. Apr. 15, 2011), ECF. No. 18. On June 14,
2011, the Honorable William C. O'Kelley sentenced Perez
to 54 months' imprisonment. J., United States v.
Perez-Maldonado, 2:11-cr-9 (N.D.Ga. June 20, 2011), ECF.
No. 27, p. 2. Subsequently, Perez pleaded guilty in the same
District to aiding and abetting a conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841 (b)(1)(A)(ii), 846, and 18 U.S.C. § 2.
Plea, United States v. Perez, 1:11-cr-264 (N.D.Ga.
Mar. 28, 2013), ECF No. 398-1. On August 23, 2013, the
Honorable Amy Totenberg sentenced Perez to 135 months'
imprisonment. 1, United States v. Perez, 1:11-cr-264
(N.D.Ga. Sep. 6, 2013), ECF No. 499, p. 2. Judge Totenberg
made clear that the Bureau of Prisons ("BOP") must
give Perez credit towards this sentence for all time Perez
served beginning with his arrest on January 26, 2011.
Id. Additionally, Judge Totenberg ordered that the
sentence should run concurrent with any sentence Perez was
already serving. Id. On July 1, 2016, Judge
Totenberg amended Perez's sentence, reducing the term of
imprisonment from 135 months to 121 months' imprisonment.
Order, United States v. Perez, 1:11-cr-264 (N.D.Ga.
July 5, 2016), ECF No. 674. However, Judge Totenberg ordered
that all other provisions of the September 6, 2013 judgment
shall remain in full force and effect.
filed his Petition on June 19, 2017. (Doc. 1.) Perez asserts
that the BOP improperly calculated the service of his August
23, 2013 sentence. Id. Specifically, he contends
that the BOP failed to give him credit for time he spent in
custody on his federal charges from June 14, 2011, to August
23, 2013. (Id. at p. 8.)
September 7, 2017, Respondent filed his Response, arguing
that Perez failed to exhaust his administrative remedies
prior to filing his Petition. (Doc. 12, pp. 4-6.) Moreover,
Respondent contends that Perez is not entitled to the credit
he requests in his Petition as the BOP properly calculated
his sentence and gave him credit in that calculation for the
time he now seeks. (Id. at p. 7.)
Whether Perez Exhausted his Administrative Remedies
Legal Requirements for Exhaustion
Eleventh Circuit 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] 224l'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
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 prisoner who
is still awaiting a response from the warden regarding his
grievance is still in the process of exhausting his
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 ...