United States District Court, N.D. Illinois, Eastern Division
October 18, 2004.
BRIAN BAFIA, Plaintiff,
JERRY GRABER, Warden, Defendant.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the petition of Brian
Bafia ("Bafia") for a writ of habeas corpus. For the reasons set
forth below, the petition is denied.
Bafia is currently in the custody of the Metropolitan
Correctional Center in Chicago, Illinois. Respondent Jerry Graber
("Warden Graber") is the facility's warden. Bafia was sentenced
on May 23, 1989, in the United States District Court for the
Northern District of Illinois, to a 188-month term of
imprisonment, with a consecutive 60-month sentence, for
conspiring to distribute cocaine in violation of 21 U.S.C. § 846
(Count Two of the indictment), extortion in violation of
18 U.S.C. § 894 (Count Eleven of the indictment), and use of a firearm, in relation to the
extortion and drug conspiracy, in violation of 18 U.S.C. § 924(c)
(Count Twelve of the indictment).
Count Two was a "guidelines" count, charging criminal activity
occurring both before and after the November 1, 1987 U.S.
Sentencing Guidelines Manual's effective date. The criminal
conduct charged in Count Eleven occurred over a period from
November 1986 until March 1987. The criminal conduct charged in
Count Twelve occurred on March 3, 1987; both crimes were
completed prior to the promulgation of the sentencing guidelines
on November 1, 1987. The 188-month sentence imposed on Counts Two
and Eleven were made concurrent to each other, a 60-month prison
term was imposed on Count Twelve, which was imposed consecutively
to the sentence on Counts Two and Eleven, as required by law.
Because Count Two was a "guidelines" sentence and Count Eleven
was an "old law" sentence, the sentence on Count Two was the
later of the two concurrent sentences to expire before the
mandatory 60-month sentence on Count Twelve began to run. The
sentence on Count Two was completed on May 24, 2002. Bafia
currently has a scheduled release date of July 21, 2005.
Bafia brings the present petition contending that the Bureau of
Prisons ("BOP") has not correctly calculated and awarded the good
conduct time ("GCT") credit he believes is due him pursuant to
18 U.S.C. § 3624(b). According to Bafia, he should be credited with 54 days of GCT rather than the 47 days GCT he
claims he has received, on the basis of the sentence imposed
rather than the time served under the sentence.
Challenges to the computation of a sentence must be brought
under 28 U.S.C. § 2241. Clemente v. Allen, 120 F.3d 703, 705
(7th Cir. 1997). The court starts with the general, though not
absolute, rule that parties must exhaust prescribed
administrative remedies before seeking relief from the federal
courts under § 2241. Gonzalez v. O'Connell, 355 F.3d 1010, 1016
(7th Cir. 2004). In limited circumstances, district courts have
discretion to excuse petitioners from using the administrative
process. Id. In exercising that discretion, the court must
balance the individual and institutional interests involved,
taking into account "the nature of the claim presented and the
characteristics of the particular administrative procedure
provided." McCarthy v. Madigan, 503 U.S. 140, 146,
112 S. Ct. 1081, 1087 (1992). Courts have recognized that individual
interests outweigh institutional concerns when: (1) requiring
exhaustion of administrative remedies causes prejudice, due to
unreasonable delay or an indefinite time frame for administrative
action; (2) the agency lacks the ability or competence to resolve
the issue or grant the relief requested; (3) appealing through
the administrative process would be futile because the agency is biased or has predetermined the issue; or (4) where
substantial constitutional questions are raised. Id.; see
Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002); see also
Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir. 1986). With
these considerations in mind, we now turn to Bafia's petition for
writ of habeas corpus.
Bafia argues that the BOP is not following the directives of
Congress when it computes GCT. Bafia's position is that the
amount of GCT to which he is entitled is 54 days for each year of
his sentence imposed under the "new law" and 120 days for each
year of his sentence imposed under the "old law." Thus, Bafia
contends, on a 188-month sentence, an "old law" prisoner must be
released after having served 126 months, and a "new law" prisoner
must be released after having served 156 months.
Warden Graber counters that the BOP computes GCT in a manner
consistent with the language of 18 U.S.C. § 3624. Warden Graber
contends that the BOP, pursuant to 18 U.S.C. § 3624(b), allows
each eligible federal inmate to earn up to 54 days GCT for each
year served, with the award of a prorated amount of GCT for time
served between the completion of an inmate's last full year of
incarceration and the inmate's release (subject to disallowance
for disciplinary infractions). 28 C.F.R. § 523.20. Warden Graber
contends that Bafia should first address his concerns through the
BOP's administrative remedy process, rather than seeking untimely
relief with his current petition. We agree with Warden Graber's assertion that
Bafia should first exhaust the BOP's administrative remedy
process, and therefore, we need not address at this time whether
the BOP computes GCT in a manner that is consistent with the
language of 18 U.S.C. § 3624.
The BOP has a three-level administrative remedy process. See
28 C.F.R. § 10-19. This process allows an inmate to seek formal
review of a complaint related to any aspect of the inmate's
imprisonment. The first step is to file a complaint at the
institutional level. Id. Should the institution deny the
complaint, the inmate may appeal the decision by filing a
complaint with the appropriate regional office of the BOP. Id.
If the regional office denies the complaint, the inmate can
appeal the decision to the BOP Office of the General Counsel in
Washington, D.C. Id. Only after the Office of the General
Counsel addresses the administrative remedy is the process
completely exhausted. Id.
Here, there is no dispute that Bafia chose not to exhaust his
available administrative remedies. In fact, Bafia chose to forego
the administrative process altogether and has instead sought
relief from this court via a habeas corpus petition. Bafia has
not, however, shown that he will be prejudiced in any way by
pursuing the administrative remedy process, or that his situation
is one that is addressed by any judicially recognized exception that would excuse exhaustion.
See Gonzalez, 355 F.3d at 1016; Iddir, 301 F.3d at 498;
Sanchez, 792 F.2d at 697.
While Bafia urges that progressing through the administrative
process would be a waste of time, he does not provide an adequate
rationale to explain why this would be the case. Bafia contends
that requiring the exhaustion of administrative remedies: (1)
causes him prejudice due to the indefinite time frame for
administrative action; (2) is not necessary in this case because
the BOP lacks the ability or competence to resolve the issue or
grant the relief requested in light of the Government's conduct
and arguments in this case and in White v. Scibana,
314 F. Supp. 2d 834 (W.D. Wis. 2004);*fn1 and (3) is also excused
because pursuing administrative remedies would be futile because
the outcome has been predetermined, as evidenced by the
Government's conduct and arguments in this case and in White.
Bafia's position is not well-served by blanket assertions of
prejudice, by his allegations of the BOP's inability or
incompetence, or by his argument of futility. An inmate must
offer more than unsupported predictions that the administrative
process will prove to be futile. It is well established that a
petitioner, with a statutory argument as the one here, "that has
a reasonable prospect of affording him relief may not skip the
administrative process and go straight to federal court by simply
reconstituting his claim as constitutional and claiming
futility." Gonzalez, 355 F.3d at 1018; see Mojsilovic v.
INS, 156 F.3d 743, 748 (7th Cir. 1998). The mere fact that
Warden Graber has asserted a certain position regarding the
present petition, or that the Government has proffered a similar
argument in a different case, does not unequivocally mean that
the administrative process will be a complete waste of time.
Because none of the judicially recognized exceptions apply in the
present situation, the exhaustion requirement remains intact.
Thus, it is premature to address the merits of Bafia's petition.
Based on the foregoing analysis, Bafia's petition for writ of
habeas corpus is dismissed, without prejudice.