United States District Court, D. Minnesota
Earl Gundy, No. 182060-041, (pro se Petitioner)
Voss, Bahram Samie, D. Gerald Wilhelm, and Erin M. Secord,
Assistant United States Attorneys, (for Respondent).
REPORT & RECOMMENDATION
N. LEUNG, UNITED STATES MAGISTRATE JUDGE
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.
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.)
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
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.)
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
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
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 ...