United States District Court, D. New Jersey
August 15, 2005.
LUIS CARBARCAS, Petitioner,
FEDERAL BUREAU OF PRISONS, et al., Respondent.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
This matter is before the Court on petitioner Luis Carbarcas'
("Carbarcas") application for habeas corpus relief under
28 U.S.C. § 2241. Respondent filed an answer to the petition on or
about July 18, 2005. The Court has reviewed all documents
submitted and, for reasons now discussed, will deny the petition
for lack of merit. BACKGROUND
Carbarcas is presently in custody at F.C.I. Fort Dix in Fort
Dix, New Jersey. He was sentenced on August 19, 1991, in the
United States District Court for the Western District of North
Carolina, to a 30-year prison term with no parole for criminal
violations under 21 U.S.C. §§ 848 and 841(a)(1), and
18 U.S.C. § 2.*fn1 Carbarcas' projected release date is July 17, 2007,
via mandatory release. See Declaration of Diana Jacobs Lee
("Lee Decl.") at ¶ 3, and Exhibit A at pp. 3-5 ("SENTRY Public
Inmate Information sheets).
In his petition, Carbarcas alleges that he began serving his
federal sentence on September 29, 1991 at F.C.I. Fairton in New
Jersey. Carbarcas claims that the only good time credit he can
earn is the industrial good time credits and lump sum awards
under 28 C.F.R. § 523.16, as an "old law" prisoner. It is with
the BOP's allocation of lump sum awards that petitioner takes
Carbarcas alleges that FCI Fairton is a cable factory, and that
they make cable products for the military for use in tanks,
ships, and airplanes. In 1991, when the Gulf War was underway,
the military increased its demand for cable products forcing FCI
Fairton to institute a second shift (from 4:00 p.m. to midnight). The inmates were needed to work both shifts, 7 days a week. The
"old law" inmates were told that they would receive additional
lump sum awards for work above and beyond their normal UNICOR
service. Carbarcas claims he has never received his lump sum
award for this work. Further, in agreeing to receive lump sum
awards of extra work credits, Carbarcas states that he declined
to seek a higher pay grade level other than grade level two.
Carbarcas estimates that his lump sum awards would have
computed at 990 days in contrast to the 60 days actually awarded
by the Bureau of Prisons ("BOP"). As a result, if these lump sum
awards were subtracted from his prison term, Carbarcas alleges
that he was eligible for release on October 18, 2004. He is 75
years old and has worked for the Federal Prison Industries for
more than 132 months without incident. He claims that he is 10
years past the national standard for receiving Social Security
In a counter-statement of facts, the BOP records indicate that
Carbarcas was designated to FCI Fairton on October 29, 1991. He
allegedly earned one year meritorious good time pursuant to
28 C.F.R. § 523.11. In early 1992, Carbarcas began working in the
Federal Prison Industries, Inc. (UNICOR),*fn2 and received industrial good time credit pursuant to 28 C.F.R. § 523.14.
Respondents state that, from late 1991 to August 1992, Carbarcas
was assigned to work various details at FCI Fairton, but outside
the ambit of UNICOR. Carbarcas' first UNICOR assignment at FCI
Fairton occurred from August 3, 1992 to September 15, 1992.
Thereafter, Carbarcas was transferred to a BOP medical facility
in Rochester, Minnesota, and was not assigned to any work detail
for medical reasons. Carbarcas returned to FCI Fairton on October
29, 1993 and received a UNICOR assignment in February 1994. He
continued to work various UNICOR jobs at FCI Fairton until
January 27, 2000, when Carbarcas was transferred to FCI Fort Dix.
At FCI Fort Dix, Carbarcas was assigned non-UNICOR job details
until July 10, 2000. At that point, until the present time,
Carbarcas has worked various UNICOR job assignments. His present
position is Sorter in the Computer Recycling Factory. See Lee
Decl. At Ex. F (SENTRY Inmate History Work Detail printout), and
Declaration of Jeff Eobstell, Factory Manager at ¶ 9.
Respondents also disagree with petitioner's calculation of
"earned" extra good time credits. Respondents calculate that
Carbarcas is entitled to earn statutory good time (SGT) credit at
a rate of 10 days per month on his 30-year prison term without parole, for a total of 3600 days SGT.*fn3 Carbarcas also
earned meritorious good time (MGT) credit from October 29, 1991
through August 2, 1992 for a total of 278 days MGT.*fn4
Next, respondents show that Carbarcas earned industrial good time
(IGT) credit for his two periods of UNICOR job assignments at FCI
Fairton (from August 3, 1992 through October 29, 1993, and from
February 11, 1994 through January 27, 2000).*fn5 He also
earned IGT during his UNICOR job assignments at FCI Fort Dix,
from July 10, 2000 and continuing to the present at a rate of 5
days per month. Thus, adding his MGT and his IGT, respondents
contend that Carbarcas has a total of 760 days of "earned" extra
good time credit (EGT).*fn6 In addition, Carbarcas has received two Lump Sum
Awards (LSA) while incarcerated at FCI Fort Dix.*fn7 The
first LSA was effective July 24, 2002 and the second on July 7,
2004. Each LSA was for 30 days credit, for a total of 60 days LSA
credit and 820 days total of all EGT credit. This 820 day total
does not include the continuing 5 days per month of IGT that
Carbarcas is expected to earn if he continues with UNICOR job
assignments. Respondents also report that Carbarcas has not had
any forfeitures or withholdings of good time credits. See
Declaration of Fernando J. Messer ("Messer Decl.") at ¶¶ 3-5;
Eobstell Decl. at Ex. 1, pp. 2-4 (SENTRY Sentence Monitoring Computation Date printout); and Lee Decl. at Ex. E (SENTRY
Sentence Monitoring Good Time Data printout) and Ex. F.
Thus, respondents have calculated Carbarcas' credits and
mandatory release date, based on his 30-year prison sentence with
out parole, as follows:
Date Computation Began ("DCB") August 19, 1991 [the date
sentence was imposed]
Total Jail Credit of 607 days [December 20, 1989 through
August 18, 1991]
Expiration Full Term ("EFT") Date December 20, 2019 [the
DCB plus the 30-year term minus the 607 days jail credit]
SGT 3600 days [rate of 10 days/month for 30 years]
Statutory Release Date February 10, 2010 [the EFT (December
20, 2019) minus projected SGT (3600 days)]
Projected Satisfaction Date July 17, 2007 [the EFT
(December 20, 2019) minus the SGT (3600 days) minus projected
earned EGT (760 days to date, plus 5 days per month going
forward) minus LSA (60 days) via mandatory release].*fn8 Carbarcas contends that he should have been released from
prison on October 18, 2004, and that he should be compensated for
every day he remains incarcerated before his projected release
date on July 17, 2007. He filed his habeas petition on or about
June 7, 2005. Respondents answered the petition on July 18,2005.
A. Standard of Review
Carbarcas seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2241(c)(3). That section states that the writ will not be
extended to a prisoner unless "he is in custody in violation of
the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3).
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. See Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis
v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
B. Exhaustion of Administrative Remedies
Respondents argue that Carbarcas has not exhausted his
administrative remedies as required. The records provided by the BOP show that Carbarcas filed an Administrative Remedy Request
form on April 11, 2005, asking that his EGT be recognized. The
remedy request was rejected by the Institutional Administrative
Remedy Coordinator that same date. The rejection notice informed
Carbarcas that he needed to provide more specific information in
proper form within five days. See Lee Decl. at ¶ 9, Ex. B, p.
1, and Ex. C. Carbarcas did not respond as directed; instead, he
filed another Administrative Remedy Request, on April 21, 2005,
with more specific information. In his new request, Carbarcas
asserted that he has not received all of the MGT, IGT and LSA to
which he is entitled. He contends that his total EGT is 742 days,
his total LSA is 802 days, and he has 607 days jail credit,
giving him a mandatory release date of February 12,
Warden John Nash responded to this remedy request on May 3,
2005, stating that Carbarcas' mandatory release date of July 17,
2007 was computed correctly. The response also informed Carbarcas
of the time period and address for filing an appeal from the
denial of his request. Carbarcas did not file an appeal. See
Lee Decl. At ¶¶ 10, 11, Ex. B at p. 2, and Ex. D.
In his petition, Carbarcas contends that exhaustion of
administrative remedies in a § 2241 petition is not a jurisdictional requirement, and that it would be futile since he
is now serving beyond his mandatory release date. He acknowledges
that he filed a BP-9 Administrative Remedy Request, which was
denied, but he argues that further appeal would be futile because
the Warden's denial "merely parrots dictates from the BOP central
office." (Pet. Mem. Of Law at p. 3).
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, the Court of Appeals for the Third Circuit has
typically required § 2241 petitioners to exhaust their
administrative remedies before applying to a federal court for
relief. See Callwood v. Enos, 230 F.3d 627, 634 (3d Cir.
2000). This policy promotes three goals:
(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.
Goldberg v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J. 1999),
aff'd, 248 F.3d 1130 (3d Cir. 2000). See also Moscato v.
Federal Bureau of Prisons, 98 F.3d 757
, 761 (3d Cir. 1996).
Nevertheless, exhaustion of administrative remedies is not
required where exhaustion would not promote these goals. See,
e.g., Gambino v. Morris, 134 F.3d 156
, 171 (3d Cir. 1998)
(exhaustion not required where petitioner demonstrates futility);
Lyons v. U.S. Marshals, 840 F.2d 202
, 205 (3d Cir. 1988)
(exhaustion may be excused where it "would be futile, if the
actions of the agency clearly and unambiguously violate statutory or constitutional rights, or if
the administrative procedure is clearly shown to be inadequate to
prevent irreparable harm"); Carling v. Peters, 2000 WL 1022959,
*2 (E.D. Pa. July 10, 2000) (exhaustion not required where delay
would subject petitioner to "irreparable injury").
Further, in Snisky v. Pugh, the petitioner did not deny his
failure to exhaust; however, the Court excused exhaustion because
the petitioner was scheduled to be released, and his claim was
clearly without merit. See 974 F. Supp. 817, 819 (M.D. Pa.
1997), rev'd on other grounds, 159 F.3d 1353 (3d Cir. 1998).
The court recognized that exhaustion could be excused where it
would be futile. See id. In Snisky, the court found that
the BOP would "unequivocally" deny the petitioner's relief, and
he would return to the district court after the denial. Thus, the
court addressed the claims on the merits.
Likewise, in Ferrante v. Bureau of Prisons, the court found
that if the petitioner's claim was meritorious, he would be
released to a halfway house relatively soon; therefore,
dismissing the petition for lack of exhaustion would be futile.
See 990 F. Supp. 367, 370 (D.N.J. 1998) (citing Snisky,
974 F. Supp. at 819-20). Further, the court held that the
petitioner's claim was clearly without merit, so that the
exhaustion issue need not be reached. See id. See also
Fraley v. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993)
(stating that exhaustion was not required because it was futile, as Regional Director
would "almost certainly" have denied request, and term of
imprisonment was completed).
In this case, the Court will excuse the exhaustion requirement,
as Carbarcas' claims are clearly without merit to warrant habeas
C. Carbarcas' Claims Are Not Supported by the Record or Law
The most glaring defect in Carbarcas' petition is his claim
that he is entitled to an estimated 990 days of additional EGT
credit against his sentence pursuant to alleged LSAs purportedly
given for National Security Defense work at FCI Fairton in 1991.
As the regulations provide, LSAs are reserved for extraordinary
or exceptional conduct (such as heroism, voluntary acceptance of
hazardous assignments and protection of life and property) that
is not part of a regularly assigned duty. 28 C.F.R. § 523.16.
Moreover, only the Warden has the authority to make an LSA
limited to 30 days. The Regional Director must approve an LSA in
an amount greater than 30 days. Id.
Here, there is no record that Carbarcas was recommended for
LSAs in the amount he contends while at FCI Fairton. The record
does show, however, that Carbarcas was recommended for a total of
60 days LSA while at FCI Fort Dix in July 2002 and July 2004.
Moreover, Carbarcas was not incarcerated at FCI Fairton during
the Gulf War in 1991, when the FCI Fairton supervisor allegedly told workers that LSAs would be awarded over and above the IGT
that they were earning for working two shifts, seven days a week
in the cable factory at FCI Fairton. Operation Desert Storm
occurred in mid-January 1991 and ran through February 28, 1991,
when hostilities ceased.*fn10 Iraq officially negotiated a
cease-fire in April 1991. Carbarcas was not sentenced until
August 19, 1991, and was first designated to FCI Fairton on
October 29, 1991, long after the Gulf War had ended. Thus, there
is absolutely no factual or legal basis for Carbarcas' claim that
he was entitled to receive a Lump Sum Award in the amount of 990
Further, there is no provision in the § 523.16 or in the BOP
Program Statement for an LSA to be recommended to an inmate in
exchange for foregoing a performance pay increase or sacrificing
a promotion to a higher pay grade. Carbarcas cannot identify any
supervisor who allegedly made this promise to him. Moreover,
while a staff member may make a recommendation, only the Warden
may authorize such an award, and approval must be obtained from
the Regional Director for any amount exceeding 30 days. There is
no documented evidence to show that any such recommendation was
made, authorized, or approved in accordance with the regulations. See Eobstell Decl. at ¶¶ 6, 10. Consequently, there is simply
no support in the law or in the factual record for Carbarcas'
claim that he is entitled to 990 days LSA, and his claim for
immediate release on this ground will be denied for lack of
Finally, after careful scrutiny of the record, and application
of the relevant law, the Court finds that the calculation of
petitioner's available SGT and EGT, including MGT, IGT, and two
LSAs in the amount of 30 days each, are accurate. The mandatory
release date of July 17, 2007, as projected by the BOP, is
supported by the record. Therefore, the petition for habeas
relief seeking immediate release from custody is denied.
Based upon the foregoing, the instant petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2241 will be denied. An
appropriate Order accompanies this Opinion.