United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. WLLHOIT, JR. UNITED STATES DISTRICT JUDGE
Edward Lee Thompson previously filed a. pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. [D.E. No. 1] However, Thompson did not pay the
$5.00 filing fee required by 28 U.S.C. § 1914, nor was
the petition-filed on a form approved for use by this Court
as required by Local Rule 5.2. Thus, pursuant to an Order
entered on July 31, 2018 [D.E. No. 5], Thompson was provided
with the appropriate forms and directed to complete and file
them within the time provided by the Order.
has now both paid the filing fee [D.E. No. 6] and filed a
motion to proceed in forma pauperis. [D.E. No. 9]
However, because he has paid the filing fee, his motion to
proceed in forma pauperis will be denied as moot.
has also now filed his petition on an appropriate form. [D.E.
No. 7]. In his petition, Thompson seeks to challenge the
calculation of his prior custody credits by the Bureau of
Prisons ("BOP"). [Id.] This matter is
before the Court to conduct the screening required by 28
U.S.C. § 2243. Alexander v. Northern Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011). A
petition will be denied "if it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief." Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Courts
(applicable to § 2241 petitions pursuant to Rule 1(b)).
The Court evaluates Thompson's petition under a more
lenient standard because he is not represented by an
attorney. Erickson v. Pardus, 551 U.S. 89, 94
(2007). At this stage of the proceedings, the Court accepts
the petitioner's factual allegations as true and
liberally construes all legal claims in his favor. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
it is not entirely clear that Thompson fully exhausted his
administrative remedies prior to filing his petition. Before
a prisoner may seek habeas relief under Section 2241, he must
exhaust his administrative remedies within the BOP.
Fazzini v. Northeast Ohio Correctional Center, 473
F.3d 229, 231 (6th Cir. 2006); Campbell v. Barron,
87 Fed.Appx. 577, 577 (6th Cir. 2004). Administrative
remedies must be exhausted prior to filing suit and in full
conformity with the agency's claims processing rules.
Woodford v. Ngo, 548 U.S. 81, 92-94 (2006).
employs a multi-tiered administrative grievance process. If a
matter cannot be resolved informally, the prisoner must file
an Administrative Remedy Request Form (BP-9 Form) with the
Warden, who has 20 days to respond. See 28 U.S.C.
§§ 542.14(a) and 542.18. If the prisoner is not
satisfied with the Warden's response, he may use a BP-10
Form to appeal to the applicable Regional Director, who has
30 days to respond. See 28 U.S.C. §§
542.15 and 542.18. If the prisoner is not satisfied with the
Regional Director's response, he may use a BP-11 Form to
appeal to the General Counsel, who has 40 days to respond.
See 28 U.S.C. § § 542.15 and 542.18.
Thompson indicates that, after his BP-9 Form and BP-10 form
were both denied, he submitted his appeal to the General
Counsel on February 10, 2018, to which there was no response.
[D.E. No. 7 at p. 7] In such situations, the BOP regulation
governing responses to inmate grievances states that
"[i]f 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. Although Thompson's
claim would be fully exhausted at that point, he confusingly
re-submitted his BP-11 Form to the General Counsel on July
16, 2018, approximately 11 days before filing his petition in
this case. [D.E. No. 1; D.E. No. 7 at p. 7]
even assuming that Thompson's re-submission is
insufficient to "undo" his prior exhaustion, a
review of the merits of Thompson's petition shows that
his petition must be dismissed because he is clearly not
entitled to relief.
2009, Thompson was charged in an indictment issued by a
federal grand jury sitting in the United States District
Court for the Eastern District of Tennessee with one count of
being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924(e) (Count 1).
United States v. Thompson, No. 2:09-cr-67-JRG-MCLC-l
(E.D. Term.) at D.E. No. 1, Indictment. After a jury trial,
Thompson was found guilty on Count 1. On May 17, 2010, United
States District Judge J. Ronnie Greer sentenced him to a term
of imprisonment of 327 months, to run concurrently with
Thompson's sentence previously imposed by the Criminal
Court for Cocke County, Newport, Tennessee, related to that
Court's revocation of Thompson's state parole.
Id. at D.E. No. 30, Judgment.
the sentencing hearing, Judge Greer made several statements
regarding his recommendations to the BOP regarding the
commencement date of Thompson's federal sentence.
Specifically, Judge Greer stated that "I will recommend
to the Bureau of Prisons that you receive credit for all time
served since you were obtained on a writ by federal
authorities on July 28 of 2009." Id. at D.E.
No. 34, Official Transcript of Sentencing, at p. 24. After
noting that there was an undischarged state term of
imprisonment related to Thompson's parole revocation in
state court, Judge Greer later stated:
Primarily because of your age and because of the age you will
be at the time you complete this sentence, I'm going to
order that your sentence in this case be served concurrently
with the sentence imposed in the criminal court for Cocke
County, Tennessee in docket numbers, or at least for the
revocation of parole, not the sentence itself, but for the
revocation of parole.
It appears that the revocation occurred on.. .the revocation
occurred on December 15, 2008; so the effect of what I'm
doing is that this sentence will run concurrently with the
state sentence from the date of that revocation, which was
December 15, 2008.
Id. at p. 26. The Judgment entered by Judge Greer
further provides as follows: "The court makes the
following recommendations to the Bureau of Prisons: Credit
for time served since July 28, 2009." Id. at
D.E. No. 30 at p. 2.
these statements, according to the BOP's Sentence
Monitoring Computation Data Sheet submitted by Thompson with
his original petition [D.E. No. 1-3], the BOP commences
Thompson's federal sentence on May 17, 2010, the date it
was imposed. Thompson argues that this calculation of his
sentence is improper, as it ignores ...