United States District Court, E.D. Kentucky, Central Division, Lexington
JULIO A. LLANESSA, Petitioner,
FRANCISCO QUINTANA, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
inmate Julio A. Llanessa has filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
in which he seeks to challenge the imposition of disciplinary
sanctions for possessing a cell phone within the prison.
[Record No. 1] The matter is pending for an initial review of
the petition as required by 28 U.S.C. §
prison guard found a cell phone in the inmates' shower
area of the federal prison in Yazoo City, Mississippi, in
January 2018. The Bureau of Prisons treats cell phones as
“hazardous tools, ” a form of contraband, and an
inmate's possession of one constitutes a Code 108
prohibited act. Bureau of Prisons Program Statement 5270.09
Table 1 (July 8, 2011). After the phone was unlocked, prison
officials found a photograph taken in November 2017 of
Llanessa posing with seven other inmates for a
“selfie” inside the prison. The Bureau of Prisons
(“BOP”) issued an Incident Report on January 29,
2018, charging Llanessa with a Code 108 offense for
Possession of a Hazardous Tool. [Record No. 1-2] A
Disciplinary Hearing Officer held a hearing on the charge one
admitted during the hearing that he was in the picture, which
the DHO treated as an admission of guilt. The DHO noted that
BOP regulations require every inmate to “keep [his or
her] area free of contraband, ” citing Program
Statement 5270.09 Appx. C at pg. 39. The DHO imposed various
sanctions which included the loss of 41 days of good conduct
time. [Record No. 1-3]
appealed the disciplinary sanction to the BOP's Southeast
Regional Office (“SERO”), complaining that: (1)
the Incident Report was not properly completed because it did
not contain an Incident Report number or the typed name of
the officer who delivered it; (2) the Incident Report was not
timely delivered to him; and (3) a hearing before the Unit
Disciplinary Hearing was never held. [Record No. 1-4]
Llanessa states that, sometime in March 2018, a BOP official
asked him to sign the appeal form again so that his signature
could be seen through all the copies. [Record No. 1 at Page
ID #5] When Llanessa received no response to his appeal from
SERO in April or May, he sent letters enquiring about the
status of his appeal in June and again in July. [Record Nos.
1-5, 1-6] He states that he received no response to either
letter. [Record No. 1 at Page ID #5]
regulations afford the Regional Office thirty days to respond
to an inmate's appeal, which the Regional Director may
extend by an additional thirty days. If the BOP does not
respond within the time permitted, the prisoner may treat
that silence as a denial. 28 C.F.R. § 542.18. That
deadline having apparently passed, on August 28, 2018
Llanessa filed an appeal to the BOP's Central Office
incorporating his arguments to SERO by reference. [Record No.
1-7, 1-8] The Central Office rejected the appeal, indicating
that Llanessa had not followed the steps indicated by SERO
which led to the rejection of his initial appeal.
sent a letter to the Central Office in early October 2018,
stating that he had re-signed his appeal form as directed by
SERO and asserting that his appeal was therefore proper.
[Record Nos. 1-9, 1-10] The Central Office responded on
October 30, 2018, indicating that SERO “rejected both
of your appeals with instructions on what to correct before
resubmitting at that level. You did not follow those
instructions.” [Record No. 1-11] Llanessa filed his
petition in this matter one month later.
argues that he has exhausted his administrative remedies, and
complains at length that that the BOP's inmate grievance
program is a “foggy maze” which has become a
“farce” through administrative delay by
“unaccountable bureaucrats.” [Record No. 1 at
Page ID #2-6] Next, he contends that his conviction is not
supported by “some evidence” because “there
is no evidence that [he] ever possessed a phone, only that
one was used to take his picture.” [Record No. 1 at
Page ID #6-9]
Court will deny Llanessa's petition without prejudice
because he did not exhaust his administrative remedies with
respect to his “some evidence” claim. Before a
federal prisoner may file a § 2241 petition to challenge
the execution of his sentence, the prisoner must first
exhaust any administrative remedies available under the
prison's grievance system. Luedtke v. Berkebile,
704 F.3d 465, 466 (6th Cir. 2013); Fazzini v. Northeast
Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir. 2006).
Requiring exhaustion of remedies available within the agency
whose actions are being challenged preserves the agency's
administrative authority by providing it with “an
opportunity to correct its own mistakes with respect to the
programs it administers before it is haled into federal
court.” Woodford v. Ngo, 548 U.S. 81, 89
(2006). Thus, a prospective litigant must present his or her
administrative grievance in such a manner as to “give
the agency a fair and full opportunity to adjudicate their
claims ...” Id. at 90.
Court need not decide whether Llanessa has adequately cure
the deficiencies which led SERO to reject his initial appeal.
Instead, Llanessa plainly did not exhaust his administrative
remedies because his appeals to SERO and the Central Office
asserted only procedural deficiencies in the creation and
delivery of the Incident Report and the absence of a UDC
hearing. At no time did Llanessa present his “some
evidence” claim (i.e., the only claim he now presents
to this Court as the basis for relief) to the BOP for
consideration. To properly exhaust a claim, an inmate must
identify the issue with sufficient particularity to permit
prison officials a reasonable opportunity to address it.
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.
2004). An inmate may not assert a claim in litigation that is
wholly distinct, factually or legally, from the one presented
to prison officials during the grievance process. Johnson
v. Woodford, No. CV 04-05995-GHK, 2010 WL 4007308, at *4
(C.D. Cal. April 20, 2010) (“Where one set of facts and
circumstances gives rise to more than one potential claim,
the plaintiff cannot exhaust all of the potential claims by
merely exhausting one such claim.”); Watson-El v.
Wilson, No. 08-C-7036, 2010 WL 3732127, at *9 (N.D. Ill.
Sept. 15, 2010) (where prisoner filed grievance challenging
BOP's placement of administrative hold on his trust
account as violation of due process, subsequent claim that
hold was placed to coerce him to provide information on
contraband “cannot [be pursued] in federal court having
never given the prison the opportunity to investigate and
correct the situation. The plaintiff's grievance was
insufficient to alert prison officials to the ‘nature
of the wrong.'”); Pruitt v. Holland, No.
10-CV-111-HRW, 2011 WL 13653, at *4-6 (E.D. Ky. Jan. 4, 2011)
(collecting cases). See generally Overcoming
Administrative Silence in Prisoner Litigation: Grievance
Specificity and the “Object Intelligibly”
Standard, 114 Columbia L. Rev. 1209 (June 2014).
summary, because Llanessa has not presented his argument
regarding the sufficiency of the evidence to the BOP, the
claim in his habeas corpus petition is unexhausted and will
be denied without prejudice. Accordingly, it is hereby
Petitioner Julio A. Llanessa's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 [Record No.
1] is DENIED, without prejudice.
action is DISMISSED and