Akili v. Cole ( 2022 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Muntu Akili, No. CV 21-02200-PHX-DLR (MTM) 10 Petitioner, 11 v. ORDER 12 Warden Cole, 13 Respondent. 14 15 16 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 17 Michael T. Morrissey (Doc. 33) regarding Petitioner’s First Amended Petition for Writ of 18 Habeas Corpus filed pursuant to 28 U.S.C. § 2241. (Doc. 18.) The Magistrate Judge found 19 that Petitioner failed to exhaust his administrative remedies and recommends that the 20 Petition be denied and dismissed without prejudice. Petitioner filed an objection to the 21 R&R and a “Motion for In Chambers Demonstration of BOP Stationary to Test Non- 22 Legibility Claim of General Counsel Clerk.” (Docs. 35, 36.) Respondents filed a response. 23 (Doc. 38.) The Court has considered the objections and reviewed the Report and 24 Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). 25 I. BACKGROUND 26 While incarnated at the Federal Correctional Complex in Lompoc, California, on 27 March 11, 2021, an incident report was filed charging Petitioner with a “High” severity 28 1 offense. After a hearing on the incident report, the Disciplinary Hearing Officer (“DHO”) 2 found Petitioner guilty and among other sanctions, revoked 27 days of good time. 3 Petitioner appealed the DHO’s decision to the Regional Director of the Western 4 Regional Office. The appeal was rejected because he did not comply with the formatting 5 rules. He re-formatted his appeal and resubmitted it. It was accepted, but the appeal was 6 denied on the merits. After submitting two additional appeals with the wrong level of 7 review, Petitioner filed an appeal to the Office of General Counsel. This appeal was 8 rejected because of noncompliance with the formatting rules. The rejection notice gave 9 Petitioner 15 days to resubmit his appeal in the proper form. Petitioner did not resubmit 10 his appeal. 11 II. OBJECTIONS TO THE R&R 12 Petitioner brought this writ to challenge the loss of his 27 days of good time. His 13 Petition alleges three grounds for relief. Two are substantive, challenging the sufficiency 14 of the evidence and the process of disciplinary hearing before the DHO. However, the 15 R&R did not address the merits of the Petition, finding that the Petition should be dismissed 16 because Petitioner “has not exhausted his administrative remedies because the appeal he 17 filed with the Office of General Counsel was not in compliance with BOP’s procedural 18 rules.” (Doc. 33 at 8.) 19 Petitioner’s germane objection to the R&R argues that he did not fail to exhaust his 20 administrative remedies. He first takes umbrage with the R&R’s finding that he could have 21 exhausted his administrative remedies by re-filing his appeal in the proper format within 22 15 days after he was notified that his appeal was rejected for not complying with the 23 procedural rules. Petitioner argues that re-submitting the appeal in compliance with the 24 procedural rules would have been futile because the Western Regional Office had thwarted 25 his appeal when it detached the continuation page of his BP-10. He claims that it is the 26 practice of the Western Regional Office to disregard continuation pages. 27 Petitioner then argues that the 27-day sanction is unenforceable because the Western 28 Regional Office obstructed his appeal in violation of the Constitution. He argues that he 1 had newly discovered evidence that was unconditionally excluded from his appeal because 2 the Western Regional Office wrongfully refused to allow him to add this new claim 3 because it incorrectly concluded that he had filed the appeal at the wrong level. 4 However, after Petitioner’s appeal was rejected at the Western Regional Office for 5 failing to follow the required format, he was allowed to refile it, which he did. The 6 Regional Director considered the appeal and issued a decision on the merits. In exhausting 7 his administrative remedies, Petitioner’s next required step was to appeal the Regional 8 Director’s decision to the Office of General Counsel. But when his first effort at filing that 9 appeal was rejected because his forms were not legible, did not contain the same wording 10 and included photocopies, Petitioner did not try to cure those procedural deficiencies. He 11 was informed that he had fifteen days to fix the forms and resubmit his appeal but instead, 12 he gave up and did not refile. He then brought his habeas petition. 13 III. MOTION FOR IN CHAMBERS DEMONSTRATION 14 Petitioner requests the opportunity to show the Court that the carbon copies 15 available with the BOP stationary (Form BP-11) creates non-legible copies. Such a 16 demonstration is not relevant to the issue of exhausting administrative remedies before the 17 Regional Director. Petitioner was able to correct the formatting problems with legibility 18 in his appeal before the Regional Director. Petitioner had the opportunity to attempt to 19 correct the deficiencies with his appeal format in his appeal before the General Counsel 20 but chose not to try. The Court finds that the R&R correctly determined that allowing 21 Petitioner to bypass the administrative process by not re-submitting his appeal in a legible 22 format would encourage deliberate bypass of the administrative scheme. (Doc. 33 at 8-9); 23 see Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990). 24 IV. FINDINGS 25 Petitioner has not exhausted his administrative remedies, nor has he shown good 26 cause for his failure to do so. 27 IT IS ORDERED that Petitioner’s Objections to the R&R (Doc. 36) are 28 OVERRULED. 1 IT IS ORDERED that Petitioner’s Motion for In Chambers Demonstration of BOP 2| Stationary to Test Non-Legibility Claim of General Counsel Clerk (Doc. 35) is DENIED. 3 IT IS ORDERED that the R&R (Doc.33) is ACCEPTED. 4 IT IS ORDERED that Petitioner’s First Amended Petition for Writ of Habeas 5 | Corpus filed pursuant to 28 U.S.C. § 2241 (Doc. 18) is DISMISSED without prejudice. 6 IT IS ORDERED that a Certificate of Appealability and leave to proceed in forma 7 | pauperis on appeal are DENIED because the dismissal of the Petition is justified because 8 | reasonable jurists would not find the ruling debatable, and because Petitioner has not made 9| a substantial showing of the denial of a constitutional right. The Clerk of the Court shall 10 | enter judgment denying and dismissing Petitioner’s First Amended Petition for Writ of 11 | Habeas Corpus filed pursuant to 28 U.S.C. § 2241 (Doc. 18) without prejudice and shall 12 | terminate this action. 13 Dated this 7th day of December, 2022. 14 15 16 {Z, 17 _- Ch 18 Upited States Dictric Judge 19 20 21 22 23 24 25 26 27 28 _4-