United States District Court, M.D. Alabama, Northern Division
WESLEY WAYNE AUSTIN, Reg. No. 09352-073, Petitioner,
WALTER WOODS, Respondent.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE
case is before the court on a 28 U.S.C. § 2241 petition
for writ of habeas corpus filed by Wesley Wayne Austin, a
federal inmate confined in the Maxwell Federal Prison Camp at
the time he filed this civil action. In this petition, Austin
contends he is entitled “[t]o serve the remaining part
of [his] imposed sentence in home confinement, less any good
time earned.” Doc. 1 at 7. Specifically, Austin alleges
that the Bureau of Prisons (“BOP”) has failed to
immediately recalculate his sentence and correct his Good
Conduct Time (“GCT”) credit in accordance with
the provisions of the First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194, enacted on December 21, 2018. Austin
also asserts that the BOP is denying him his right to
placement on home confinement based on his age as mandated by
the Act. He requests that the court issue an order directing
the BOP to immediately calculate his GCT and place him on
home confinement in accordance with the First Step Act. Doc.
2 at 4.
response, the respondent argues that the petition is due to
be denied because Austin failed to exhaust his available
administrative remedies provided by the BOP prior to seeking
relief from this court. Doc. 16 at 4-6. He also denies any
violation of Austin's constitutional rights with respect
to either the calculation of his GCT or his lack of placement
on home confinement. Doc. 16 at 6-8.
support of his exhaustion defense, the respondent maintains
The Administrative Remedy Program [established by the BOP] is
described at 28 C.F.R. § 542.10, et seq., Administrative
Remedy Procedures for Inmates. In accordance with the
[formal] administrative remedy procedures, inmates must first
present their complaint to the Warden of the facility in
which the inmate is confined[.] . . . Administrative Remedy
Form BP-229(13) is the form to be utilized at the institution
level, which is commonly referred to as a “BP-9”
form. If the inmate is not satisfied with the response to the
BP-9 received from the Warden, the response may be appealed
to the Regional Director within 20 days of when the warden
signed the response. Administrative Remedy Form BP-230(13) is
the form to be utilized at the regional level, which is
commonly referred to as a “BP-10” form. If the
inmate is not satisfied with the response of the Regional
Director, that response may be appealed to the General
Counsel's Office within 30 days of when the Regional
Director signed the response. Appeal to BOP's Office of
General Counsel is the final step in the BOP's
administrative remedy process. Administrative Remedy Form
BP-231(13) is the form to be utilized at the final level,
which is commonly referred to as a “BP-11” form.
The response from the General Counsel's Office is
considered the final agency decision.
If the inmate does not receive a response within the time
allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that
level. 28 C.F.R. § 542.18.
. . . .
The Sentry Administrative Remedy Log for Petitioner reflects
that he has submitted eleven remedy requests; some of which
have been accepted. However, not one of these eleven remedy
requests has been regarding [the claims presented in this
Petitioner states in his filing there “are not
administrative remedies available to the Petitioner.”
But fails to say how or why he cannot use the [administrative
Thus, Petitioner has not exhausted the available
administrative remedies and his petition should be dismissed.
Doc. 16-2 at 2-4 (paragraph numbering omitted) (footnote
respondent further argues that even had Austin exhausted his
administrative remedies he is entitled to no relief on his
claims. Initially, with respect to Austin's claim seeking
an immediate award of GCT credit under the First Step Act,
the respondent argues that “[t]his particular change
does not become effective until the Attorney General
completes, within 210 days of the FSA's passage,
[sometime in July of 2019, ] a ‘risks and needs
assessment system.' See FSA, Sections 101(a)
& 102(b)(2).” Doc. 16 at 3. As such, this claim is
premature. The respondent next argues that Austin has no
right to home confinement as the BOP retains complete
discretion “as to whether and when a prisoner is
assigned home confinement” and claims alleging a right
to home confinement “are expressly insulated from
judicial review.” Doc. 16 at 6-7.
is well-settled that a 28 U.S.C. § 2241 petition for
writ of habeas corpus is the proper vehicle for a prisoner to
challenge the manner, location or execution of his sentence.
See Lopez v. Davis, 531 U.S. 230, 236 (2001);
Williams v. Pearson, 197 Fed.Appx. 872, 877 (11th
Cir. 2006); Stephens v. Herrera, 464 F.3d 895, 897
(9th Cir. 2006); United States v. Williams, 425 F.3d
987, 990 (11th Cir. 2005); Bishop v. Reno, 210 F.3d
1295, 1304 n.14 (11th Cir. 2005); Jiminian v. Nash,
245 F.3d 144, 146 (2d Cir. 2001); United States v.
Miller, 871 F.2d 488, 490 (4th Cir. 1989). Here, Austin
alleges the BOP has failed to calculate his good time ...