UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION

EDUARD FERNANDEZ DOCKET NO. 2:24-cv-01156 REG. # 78001-054 SECTION P

VERSUS JUDGE JAMES D. CAIN, JR.

WARDEN MARTINEZ MAGISTRATE JUDGE LEBLANC

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to

by pro se petitioner Eduardo Fernandez (“Petitioner”). Doc. 1. Petitioner is an inmate in the custody of the Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional Center at Oakdale, Louisiana (“FCIO”). This matter has been referred to the undersigned for review, report, and recommendation in accordance with

and the standing orders of this Court. For the following reasons IT IS RECOMMEDED that the petition be DENIED and DISMISSED WITHOUT PREJUDICE. I. BACKGROUND

Petitioner is currently serving a sentence imposed by the United States District Court for the Southern District of New York. Doc. 1, p. 1, ¶ 4. He challenges the calculation of time credits.

. Petitioner states that he appealed the decision to deny his request for a “year off [his] sentence” to the FCIO Warden but has not filed a second appeal.

. II. LAW & ANALYSIS

A. Screening of Habeas Corpus Petitions A district court may apply any or all the rules governing habeas petitions filed under

to those filed under § 2241. See Rule 1(b), Rules Governing § 2254 Cases in the United States District Courts. Rule 4 of the Rules Governing § 2254 Cases authorizes preliminary review of such petitions, and states that they must be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Id. at Rule 4. To avoid summary dismissal under Rule 4, the petition must contain factual allegations pointing to a “real possibility of constitutional error.” Id. at Rule 4, advisory committee note (quoting Aubut v. Maine,

(1st Cir. 1970)). Accordingly, we review the pleadings and exhibits before us to determine whether any right to relief is indicated, or whether the petition must be dismissed. B. Application

1. Exhaustion

A petitioner seeking relief under § 2241 “must first exhaust his administrative remedies through the Bureau of Prisons.” Rourke v. Thompson,

(5th Cir. 1993) (citing United States v. Gabor,

, 78 n. 2 (5th Cir. 1990)); Gallegos-Hernandez v. United States,

(5th Cir. 2012) (holding that exhaustion of administrative remedies is a prerequisite to § 2241 relief); United States v. Cleto,

(5th Cir. 1992). The BOP has a four-step administrative process for resolving complaints by prisoners. Initially, a prisoner must attempt to informally resolve the complaint with staff. See

(a). If informal attempts are unsuccessful, the prisoner must submit a written complaint to the warden on a prescribed form (BP-9).

. If the prisoner is not satisfied with the warden’s response, he may appeal to the Regional Director within twenty days after the warden’s response (BP-10).

. If still unsatisfied, the prisoner may appeal to the Central Office (BP-11).

There are time limits for BOP officials to respond at each level of the administrative remedy process.

Petitioner admittedly did not file any appeal of the refusal to take time off his sentence. Exceptions to the exhaustion requirement apply only in extraordinary circumstances, such as when the petitioner proves that exhaustion would be futile. Fuller v. Rich,

(5th Cir. 1994) (per curiam). The petitioner bears the burden of proving futility.

He points to no extraordinary circumstances that would warrant an exemption from the exhaustion requirement. Petitioner must give the BOP an opportunity to review his claim before pursuing a § 2241 claim in this Court. III. CONCLUSION

For the reasons stated above, IT IS RECOMMENDED that the instant petition be DENIED and DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. Pursuant to

(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days from receipt of this Report and Recommendation to file written objections with the Clerk of Court. Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days of receipt shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass’n,

(Sth Cir. 1996). THUS DONE AND SIGNED in chambers this 13th day of January, 2025. a AS LEBLANC UNITED STA¥PES MAGISTRATE JUDGE

-4-