United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
Ahmed Fernandez (“Fernandez”), who is currently
incarcerated at D. Ray James Correctional Facility in
Folkston, Georgia, filed a 28 U.S.C. § 2241 Petition for
Writ of Habeas Corpus. Doc. 1. Respondent filed a Motion to
Dismiss, and Fernandez filed a Response. Docs. 8, 12.
Respondent filed a Reply, and Fernandez filed a Surreply.
Docs. 14, 15. For the reasons which follow, I
RECOMMEND the Court GRANT in
part and DENY in part
Respondent's Motion to Dismiss, DENY
Fernandez's Petition, DIRECT the Clerk
of Court to CLOSE this case and enter the
appropriate judgment of dismissal, and DENY
Fernandez in forma pauperis status on appeal.
Southern District of Florida convicted Fernandez after he
entered a plea of guilty to breaking and entering into
carrier facilities, in violation of 18 U.S.C. § 2117(f).
Doc. 1 at 1, 27; Doc. 1-1 at 1. The Southern District of
Florida sentenced Fernandez to 60 months' imprisonment on
February 9, 2016. Doc. 1 at 29. Fernandez has a projected
release date of June 13, 2021, via good conduct time release.
Id. at 30. Fernandez filed a motion for
clarification regarding the Southern District of
Florida's judgment and requested to receive credit for
time served, which the trial court denied on January 9, 2018.
Id. at 33. Immigration and Customs Enforcement
(“ICE”) issued a detainer against Fernandez on
April 24, 2018. Doc. 8-2 at 27.
Petition, Fernandez states he was arrested by Florida
authorities on October 1, 2015, and was taken into federal
custody on October 2, 2015. Doc. 1 at 7. Fernandez also
states he has not been given credit toward his federal
sentence from October 2, 2015, through February 6, 2017, and
from September 17, 2017, through October 19, 2017. Doc. 1-1
at 6. Fernandez seeks to have all this time credited against
his federal sentence.
states Fernandez failed to exhaust his administrative
remedies before filing his Petition. In the alternative,
Respondent asserts Fernandez's sentence has been properly
calculated, and he is not entitled to any credit against his
federal sentence. Doc. 8.
Whether Fernandez Exhausted his Administrative
Legal Requirements for Exhaustion
Eleventh Circuit Court of Appeals has held that a § 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). Additionally, the United States Supreme
Court has “held that the PLRA's [“Prison
Litigation Reform Act's”] text suggests no limits
on an inmate's obligation to exhaust- irrespective of any
‘special circumstances.' And that mandatory
language means a court may not excuse a failure to exhaust,
even to take such circumstances into account.” Ross
v. Blake, 136 S.Ct. 1850, 1856 (2016).
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.
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,
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
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 Fernandez's Efforts at Exhaustion
Petition, Fernandez asserts he exhausted his administrative
remedies by filing the first and second steps of the
grievance process at D. Ray James. Doc. 1-1 at 2. In
addition, Fernandez states in response to the Motion to
Dismiss he filed the last of the required administrative
remedies on March 19, 2018, it was mailed certified on March
21, 2018, and it was delivered on March 23, 2018. Doc. 12 at
2; Doc. 12-1 at 2-5. While it appears Fernandez exhausted his
administrative remedies at the first Turner step,
out of ...