United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
J. PAUL OETKEN, District Judge.
Petitioner Jeromee Wade Greenough brings this petition pro se under 28 U.S.C. § 2241 arguing that the Federal Bureau of Prisons (the "BOP") miscalculated prior custody credit to be applied to his federal sentence. After reviewing the pleadings and record, Magistrate Judge Sarah Netburn concluded that because the time Greenough seeks to have credited toward his federal sentence has already been credited to his state sentence, his petition should be denied. Greenough objects to Judge Netburn's recommendation on two grounds: first, he argues that his failure to exhaust his administrative remedies should be excused, and second, he argues that the BOP's recomputation of his sentence deprived him of his constitutional rights. This Court adopts Judge Netburn's thorough report and recommendation as set forth below.
I. Standard of Review
A district court reviewing a report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When parties object to any portion of a report and recommendation, that portion is reviewed de novo; otherwise, it is reviewed for clear error. Thomas v. Arn, 474 U.S. 140, 149-50 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."). Because Greenough is appearing pro se, the Court must construe his petition and other filings to raise the strongest claims they suggest. Matias v. Artuz, 8 Fed.App'x 9, 11 (2d Cir. 2001) (citing Williams v. Kaufman, 722 F.2d 1048, 1050-51 (2d Cir. 1983)).
The following analysis assumes familiarity with the background facts and legal conclusions in Judge Netburn's Report and Recommendation.
A. De Novo Review
Greenough objects to Judge Netburn's findings and recommendations in two respects. First, he argues that he should be excused from exhausting the BOP's administrative remedies because the BOP misled him about those remedies. Second, he argues that by recalculating his prior custody credit after this petition was filed, the BOP violated his right to due process and effectively suspended his right to petition for a writ of habeas corpus.  The Court considers these arguments de novo.
Greenough first argues that the Court should excuse his failure to exhaust the BOP's administrative remedies. Because the BOP computes sentences in the first instance, United States v. Wilson, 503 U.S. 329, 334-35 (1992), prisoners must ask the BOP to correct its own errors before challenging those errors in the district court. United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998). This requires a prisoner to exhaust any administrative remedies that the BOP makes available, including timely appeals to any office capable of granting the prisoner relief. See Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 633-34 (2d Cir. 2001) ("The principles articulated in ... our other procedural default precedents control" for purposes of § 2241 petitions); Wedra v. Lefevre, 988 F.2d 334, 338-40 (2d Cir. 1993) (holding claims dismissed due to late appeal were procedurally defaulted). If the BOP rejects a claim on a procedural basis (such as late filing), the prisoner has not exhausted his administrative remedies with respect to that claim, because the BOP did not have the chance to review the claim on the merits. Carmona, 243 F.3d at 633 (citing Edwards v. Carpenter, 529 U.S. 446, 451 (2000)). But if a prisoner can establish "cause" for his failure to exhaust and resulting "prejudice, " the Court will excuse his failure to exhaust. Id. at 634. "Cause" is an objective factor out of the prisoner's control which impeded his effort to use the administrative remedy program. See Coleman v. Thompson, 501 U.S. 722, 753 (1991) (discussing cause for procedural default of claims raised under 28 U.S.C. § 2254).
The BOP administrative remedy program is codified at 28 C.F.R. § 542.10 et seq. In general, the first step in the program is to use a prison's informal procedure for resolving complaints, 28 C.F.R. § 542.13, and then to file a formal complaint with prison staff within twenty days of the event giving rise to the complaint, 28 C.F.R. § 542.14(a). But if a prisoner's complaint is about the decision of a BOP office outside of his prison-for example, a decision about the computation of his sentence-the prisoner may skip the informal resolution procedure and send his formal complaint directly to the relevant BOP office. §§ 542.13(b), 542.14(d)(5). The twenty-day deadline still applies to complaints sent directly to an outside office. § 542.14(a).
Greenough's objection is that prison officials misinformed him about the operation of the BOP's administrative remedy program. He claims that the prison officials responsible for providing prisoners with information about the program derive all of their information from a BOP policy statement. The policy statement omits any reference to § 542.14(d)(5), which is the exception allowing prisoners to send complaints to outside offices in the first instance. Because prison officials did not know about this exception, they did not tell Greenough about it, so he improperly filed his complaint about his sentence computation with officials in his prison rather than with the relevant BOP office. Greenough argues that (1) he cannot be penalized for untimely appeal of his warden's decision, because it was not proper for him to file a complaint in his prison in the first place; and (2) any delay attributable to his improper filing should be excused, because that delay was ultimately caused by misinformation distributed by prison officials.
Greenough's arguments overlook a crucial point. Whether a prisoner files his complaint within his prison or with an outside BOP office, the complaint must be filed within twenty days of the event giving rise to the complaint. Greenough's sentence was computed on December 30, 2010 and certified on May 23, 2011. (Johnson Decl. Ex. 2 (Response to Request for Informal Resolution), Dkt. No. 21-2.) He did not attempt to file any complaint about the computation- with the proper office or otherwise-until approximately February 2, 2012. (Johnson Decl. ¶ 11 & Ex. 1. (Informal Resolution Form), Dkt. Nos. 20, 21-1.) Greenough's complaint would have been more than a year and a half late regardless of whether he filed it with the proper office. He does not suggest that prison officials misled him about the time limit for filing a complaint, and therefore, he cannot attribute his late filing to prison authorities. Moreover, when prison authorities responded to his complaint on the merits (despite the fact that it was late and filed in the wrong venue), Greenough did not file a timely appeal from that decision. The BOP gave Greenough an opportunity to explain why his appeal was late, but he failed to respond; instead, he filed a new complaint with the proper office. The proper office reviewed Greenough's complaint and gave him an opportunity to explain why that complaint was late. Again, he failed to respond. These facts do not constitute cause for excusing Greenough's failure to exhaust. The Court therefore overrules Greenough's first objection and holds that he failed to exhaust his administrative remedies.
Greenough's second argument is that, by recomputing his sentence more than ten years after he was transferred to federal custody, the BOP has violated his right to due process and suspended his right to file a writ of habeas corpus.  After Greenough filed this action, the BOP reconsidered its original sentence computation and determined that he should receive only 194 days of prior custody credit, not 735 days as initially calculated. Greenough does not explain why this recomputation violated his right to due process, and the record contains no basis for such an argument. "The core of due process is the right to notice and a meaningful opportunity to be heard." LaChance v. Erickson, 522 U.S. 262, 266 (1998). While "due process is flexible and calls for such procedural protections as the situation demands, " Mathews v. Eldridge, 424 U.S. 319, 334 (1976), Greenough has not pleaded any facts suggesting that the BOP's administrative remedy program is an insufficient procedural protection in this case. The BOP revoked more than 500 days of prior custody credit-credit that had been granted in error-well before Greenough was expecting to be released from prison (his release date was moved from July 5, 2019 to December 26, 2020). Greenough has had ample notice to challenge the revocation, but it appears that he did not choose to avail himself of the BOP's administrative remedy program, which would have been a fair opportunity to explain his arguments in support of the BOP's original calculation. At any rate, Greenough has made those arguments here, and the Court ultimately finds them to be without merit.
Greenough also argues that, if he had known that the BOP would grant only 194 days of prior custody credit, he would have filed a motion to vacate his sentence under 28 U.S.C. § 2255. The BOP's late recomputation ...