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Austin v. Woods

United States District Court, M.D. Alabama, Northern Division

May 17, 2019

WESLEY WAYNE AUSTIN, Reg. No. 09352-073, Petitioner,
v.
WALTER WOODS, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This 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.

         In his 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.

         In support of his exhaustion defense, the respondent maintains that

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.[1]
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 case].
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 remedy] program.
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 added).

         The 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.

         II. DISCUSSION

         A. Jurisdiction

         The law 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 ...


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