United States District Court, D. Colorado
RECOMMENDATION REGARDING DISMISSAL
P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Applicant Rossahn
Black's Petition for Issuance of a Writ of Habeas Corpus
Pursuant to 28 U.S.C. 2241 (ECF No. 1). The matter has
been referred to this Magistrate Judge for recommendation
(ECF No. 15).
Court must construe Applicant's filings liberally because
he is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520- 21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
Court has reviewed the filings to date. The Court has
considered the case file and the applicable law, and is
sufficiently advised in the premises. This Magistrate Judge
respectfully recommends that the Petition be dismissed
without prejudice for failure to exhaust available
Factual and Procedural Background
is in the custody of the federal Bureau of Prisons in
Florence, Colorado. On January 31, 2019, he filed pro
se a Petition for Issuance of a Writ of Habeas Corpus
Pursuant to 28 U.S.C. 2241 (ECF No. 1). He paid the filing
fee (ECF No. 4).
Petition, Applicant argues that the Bureau of Prisons
“is not crediting the petitioner in its computation of
his sentence for the time he served from October
4th, 2012 to January 17th, 2017.”
(ECF No. 1 at 3). He attached administrative grievances and
responses to the Petition. (See ECF No. 1-1).
of the preliminary consideration of the Petition and
attachments, the Court directed Respondent to file a
Preliminary Response limited to addressing the affirmative
defense of exhaustion of administrative remedies. (ECF No.
filed a Preliminary Response arguing that Applicant failed to
exhaust administrative remedies. (ECF No. 11). In summary,
Respondent asserts “Applicant never filed a BP-10 or
BP-11 appeal of his first formal complaint related to his
habeas claim, Remedy ID 895089-F1 . . . And
Applicant never filed a BP-11 appeal of Remedy ID 914556-R4,
the Regional Director's latest adjudication of
Applicant's second formal complaint related to his habeas
claim.” (Id. at 7).
filed a “Traverse of Government's Response.”
(ECF No. 12). In the Traverse, Applicant states,
“[w]hat the Government has strategically omitted from
its response is that Mr. Black again filed another BP-11 at
the National Level and received absolutely no
response.” (Id. at 2). Applicant argues that
additional attempts at exhaustion would be futile because the
BOP's position is “crystal clear.”
filed a Reply in support of Preliminary Response. (ECF No.
13). In the Reply, Respondent addresses Applicant's
allegation that he filed another BP-11. Respondent states
that the database report of Applicant's administrative
complaints does not show that Applicant filed a BP-11 appeal
for the claim at issue here. (Id. at 2). Respondent
argues that the futility exception does not apply.
(Id. at 3).
Exhaustion of Administrative Remedies
of administrative remedies is a prerequisite to federal
habeas corpus relief pursuant to 28 U.S.C. § 2241.
See Williams v. O'Brien, 792 F.2d 986, 987 (10th
Cir. 1986). The exhaustion requirement is satisfied only
through proper use of the available administrative
procedures. See Woodford v. Ngo, 548 U.S. 81, 90
(2006). “Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules
because no adjudicative system can function properly without
imposing some orderly structure on the course of its
proceedings.” Id. at 90-91. Inmates may not
exhaust their administrative remedies by failing to employ
them. Jernigan v. Stuchell, 304 F.3d 1030, 1033
(10th Cir. 2002).
administrative remedy procedure allows an inmate to
"seek formal review of an issue relating to any aspect
of his/her own confinement." 28 C.F.R. § 542.10(a).
Generally, an inmate first presents an issue of concern
informally to prison staff in an attempt to resolve the
issue. § 542.13. If an inmate is not able to resolve the
issue informally he files a formal administrative remedy
request, usually with the warden of the facility where he is
incarcerated. § 542.14. If the inmate is not satisfied
with the warden's response he may file an appeal with the
appropriate regional director, and if he is not satisfied
with the ...