United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
C. CARLSON UNITED STATES MAGISTRATE JUDGE
Statement of Facts and of the Case
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
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.)
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.
these facts, for the reasons set forth below, it is
recommended that this petition be denied as unexhausted .
The Exhaustion Doctrine Bars Consideration of This Habeas
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. Â§ 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).
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.
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).
court has previously explained when dismissing a federal
prisoner's habeas petition for failure to exhaust
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.