Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Viserto v. Lane

United States District Court, M.D. Pennsylvania

April 1, 2019

ANTHONY VISERTO, Petitioner,
v.
WARDEN KATHY LANE, Respondent.

          Brann Judge

          REPORT AND RECOMMENDATION

          MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE

         I. Statement of Facts and of the Case

          This case presents a federal habeas corpus petition filed by the petitioner, Anthony Viserto, a federal inmate. In his petition, Viserto challenges the sentence credit calculation made by the Bureau of Prisons which allocated time which Viserto spent in custody between his various federal and state sentences. Yet, while Viserto advances these claims in federal court, he has failed to thoroughly pursue administrative grievances in the federal prison system before turning to the courts. On these facts, for the reasons set forth below, we recommend that this petition be denied as unexhausted.

         The pertinent facts can be simply stated: Anthony Viserto is currently serving a 180-month sentence that was imposed upon him by the United States District Court for the Northern District of New York, in April of 2009 following his guilty plea conviction for being an armed career criminal, in violation of 18 U.S.C. §§922(g) and 924(e). (Doc. 1-1.) This 180-month federal sentence represented the statutory mandatory minimum sentence for a violation of 18 U.S.C. §§922(g) and 924(e). According to the petitioner, Viserto had initially been arrested in January of 2008 on these charges, and had spent approximately 18 months in custody awaiting resolution of this federal case. While Viserto was in custody he was also the subject of a state parole detainer lodged by New York State parole officials. (Id.) According to Viserto he ultimately received a “thirty six month reincarceration hit” as a result of these parole violations. (Id., ¶ 13.)

         Given these overlapping federal and state sentences, when the Bureau of Prisons calculated Viserto's presumptive release date it appears that they allocated the 18 months Viserto spent in pretrial detention against his 36 month state parole violation sentence, rather than crediting this time against Viserto's mandatory minimum federal firearms sentence. Displeased with this sentence calculation Viserto has now filed the instant federal habeas corpus petition, challenging this sentence calculation. (Doc. 1.) However, a review of Viserto's administrative grievance history reveals that Viserto has never filed an administrative grievance while in BOP custody. (Doc. 5 Ex.1, Decl. of Matthew Lavelle; Attach. C Administrative Remedy Generalized Retrieval.) Thus, it is entirely undisputed that Viserto has never exhausted his administrative remedies with respect to this particular complaint, as he is required to do by law.

         On these facts, for the reasons set forth below, it is recommended that this petition be denied as unexhausted .

         II. Discussion

         A. The Exhaustion Doctrine Bars Consideration of This Habeas Petition.

         At the outset, this petition suffers from a fundamental procedural flaw, since the petitioner has failed to properly exhaust his administrative remedies within the federal prison system, despite being provided with explicit guidance regarding the steps he needed to take to fully exhaust an administrative appeal. Although 28 U.S.C. § 2241 contains no express exhaustion requirement, “[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241.” Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998); see also, e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). These exhaustion rules serve an important and salutary purpose. The United States Court of Appeals for the Third Circuit requires administrative exhaustion of a claim raised under' 2241 for three reasons: “(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy.” Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996); see also Gambino, 134 F.3d at 171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988).

         In order to facilitate this administrative exhaustion requirement, the Bureau of Prisons has established a clearly-defined procedure for addressing inmate grievances. See 28 C.F.R. § 542, et seq. Pursuant to this grievance process, an inmate must first attempt resolution of any issue on an informal level by presenting the matter to staff and allowing staff to attempt an informal resolution before an administrative remedy request is filed. See 28 C.F.R. § 542.13(a). If an inmate is unable to resolve his concerns informally with the staff, the prisoner may file a formal written complaint at the institution level with the Warden within 20 calendar days of the event which forms the basis of the grievance. § 542.14(a). For disciplinary hearing appeals, the process is slightly different as these appeals are submitted directly to the Regional Office level first rather than to the Warden. §§ 542.10, 542.15. If the Regional Director denies the appeal, and the inmate remains dissatisfied, the inmate can lodge a final appeal to the BOP's Central Office in Washington, D.C. within 20 days of the denial. § 542.15(a). If denied by the Central Office, the inmate may then file a civil action. §§ 542.10, 542.15.

         This case presents the very paradigm of an unexhausted petition. It is undisputed that Viserto has never submitted a grievance relating to this sentence calculation issue. This choice and procedural default now has substantive consequences for the petitioner. With respect to unexhausted habeas claims like those presented here, “[c]ourts in the Middle District of Pennsylvania have consistently held that ‘exhaustion of administrative remedies is not rendered futile simply because a prisoner anticipates he will be unsuccessful in his administrative appeals ..... '” Ross v. Martinez, No. 09-1770, 2009 WL 4573686, at *3 (M.D. Pa. Dec. 1, 2009) (quoting Malvestuto v. Martinez, No. CIV.A. 1:09-CV-1339, 2009 WL 2876883, at *3 (M.D. Pa. Sept. 1, 2009)). Quite the contrary, rigorously applying these exhaustion requirements, courts have consistently rejected habeas petitions where the inmate-petitioners have failed to fully exhaust their administrative remedies. See, e.g., Johnson v. Williamson, 350 Fed.Appx. 786 (3d Cir. 2009); Pinet v. Holt, 316 Fed.Appx. 169 (3d Cir. 2009); Moscato v. Federal Bureau of Prisons, 98 F.3d. 757 (3d Cir. 1996).

         As this court has previously explained when dismissing a federal prisoner's habeas petition for failure to exhaust administrative remedies:

In order for a federal prisoner to exhaust his administrative remedies, he must comply with 28 C.F.R.' 542. See 28 C.F.R.' 542.10, et seq.; Lindsay v. Williamson, No. 1:CV-07-0808, 2007 WL 2155544, at *2 (M.D. Pa. July 26, 2007). An inmate first must informally present his complaint to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R.' 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. 28 C.F.R.' 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. 28 C.F.R. '' 542.15(a), 542.18. No. administrative ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.