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Gundy v. United States

United States District Court, D. Minnesota

November 7, 2017

Robert Earl Gundy, Petitioner,
v.
United States of America, Respondent.

          Robert Earl Gundy, No. 182060-041, (pro se Petitioner)

          Ana H. Voss, Bahram Samie, D. Gerald Wilhelm, and Erin M. Secord, Assistant United States Attorneys, (for Respondent).

          REPORT & RECOMMENDATION

          TONY N. LEUNG, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This matter comes before the Court on Petitioner Robert Earl Gundy's petition for a writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”). (Pet., ECF No. 1.) This matter has been referred to the undersigned for a report and recommendation to the Honorable Michael J. Davis, District Judge for the United States District Court for the District of Minnesota, pursuant to 28 U.S.C. § 636 and D. Minn. LR 72.1. For the reasons discussed below, this Court recommends that the Petition be denied.

         II. BACKGROUND

         In 2014, Petitioner appeared in the United States District Court for the District of Minnesota and pleaded guilty to mail fraud in violation of 18 U.S.C. § 1341. See United States v. Gundy, No. 14-cr-279 (PJS) (D. Minn.). (Decl. of Deborah Colston ¶ 5, ECF No. 11; Ex. B to Colston Decl., ECF No. 11-2.) Petitioner was conditionally released on bond the same day. (Colston Decl. ¶ 6; Ex. D to Colston Decl., ECF No. 11-4.)[1]

         Petitioner was ultimately sentenced to 41 months' imprisonment on November 24, 2015. (Colston Decl. ¶ 9; Ex. I to Colston Decl., ECF No. 11-9.) Petitioner was released the following day on a new bond requiring him to reside in a halfway house. (Colston Decl. ¶ 8; Ex. H to Colston Decl., ECF No. 11-8.) Petitioner voluntarily surrendered to the Federal Bureau of Prisons (“BOP”) on January 7, 2016. (Colston Decl. ¶ 15; Ex. A to Colston Decl., ECF No. 11-1.) His projected release date is November 7, 2018 via good conduct time release. (Colston Decl. ¶ 18; Ex. A to Colston Decl.)

         Petitioner submitted an informal “Inmate Request to Staff” form seeking credit for the 43 days he spent in the halfway house prior to voluntarily surrendering himself. (Attach. 2 to Pet.; Colston Decl. ¶ 17.) BOP staff responded that “time spent under restrictive conditions of release (including community treatment center . . . or similar facility) was not official detention entitling an inmate to prior custody time credit.” (Attach. 2 to Pet.)

         III. ANALYSIS

         Petitioner now brings the instant Petition, seeking 43 days' credit to his federal sentence for time spent at the halfway house. Respondent requests that the Petition be denied because Petitioner failed to exhaust administrative remedies and is not entitled to receive credit for time when he was not in official detention.

         A. Administrative Exhaustion

         Administrative remedies must be exhausted prior to seeking habeas corpus relief regarding computation of custody credit. United States v. Tindall, 455 F.3d 885, 888 (8th Cir. 2006); United States v. Chappel, 208 F.3d 1069, 1069 (8th Cir. 2000) (per curiam). Attached to the Petition is a January 2017 letter from the BOP's Designation and Sentence Computation Center in Grand Prairie, Texas, denying a nunc pro tunc designation for Petitioner. (Attach. 1 to Pet.; see Resp. to Pet. at 8, ECF No. 9.) Petitioner relies on this letter as proof that he has exhausted his administrative remedies. (Pet. at 5.) It is unclear, however, whether this letter concerned credit for the 43 days Petitioner spent at the halfway house at issue here or credit for a related state case that Petitioner also believed was not accurately included in his sentence computation. (See Attach. 2 to Petition (referencing “state case-felony charge directly related to the case I am serving now”).) Petitioner appears to believe that there are no further administrative remedies for him to pursue.

         The BOP, however, has an established, three-tier administrative process. Simon v. La Riva, No. 16-cv-00146 (ADM/TNL), 2016 WL 1626819, at *3 (D. Minn. Mar. 10, 2016), adopting report and recommendation, 2016 WL 1610603 (D. Minn. Apr. 21, 2016); see 28 C.F.R. §§ 542.13-.15. “This program is designed to allow inmates to voice their grievances and provide the BOP an opportunity to resolve issues inhouse prior to an inmate seeking judicial relief.” Lopez v. Fisher, No. 10-cv-3928 (PJS/SER), 2011 WL 3438861, at *3 (D. Minn. July 18, 2011), adopting report and recommendation, 2011 WL 3438720 (D. Minn. Aug. 5, 2011). The first tier of the process requires an inmate to seek informal resolution of the grievance and then, if unsatisfied with the response, send a formal written Administrative Remedy Request (“BP-9”) to the warden of the facility where the inmate is confined. 28 C.F.R. §§ 542.13(a), 542.14(a). At the second tier, an inmate who is not satisfied with the warden's response may appeal to the appropriate BOP Regional Director on a BP-10 form. 28 C.F.R. § 542.15(a), (b)(1). Lastly, at the third tier, an inmate may appeal an unsatisfactory response from the BOP Regional Director to the ...


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