Cross v. Warden

Background

Petitioner DeAngelo Cross is a federal prisoner currently incarcerated at FPC Duluth. In 2000, he was convicted of four counts of Armed Bank Robbery and one count of Use of a Firearm During a Crime of Violence and sentenced to 304 months' imprisonment. That sentence was reduced to time served in 2018, and he was released on September 24, 2018, to a five-year term of supervised release.

Cross subsequently reoffended. He was sentenced to 20 months for violating the conditions of his supervised release, and to a concurrent 60-month term for a new conviction of Felon in Possession of a Firearm.

Cross filed a petition for a writ of habeas corpus — a legal mechanism allowing a prisoner to challenge the lawfulness of his confinement — asking the court to order the BOP to award him time credits under the First Step Act of 2018 (FSA), 18 U.S.C. § 3632(d)(4). The FSA permits eligible prisoners to earn time credits toward prerelease custody or early release by participating in evidence-based recidivism reduction (EBRR) programming. Cross claimed he had actively participated in such programs but was not receiving credit.

BOP's Position and Administrative Record

The BOP's position, communicated to Cross in a written response from the Warden on January 23, 2025, was that multiple terms of imprisonment are treated as a single aggregate term, and if any one sentence makes a prisoner ineligible to earn time credits, all sentences are ineligible. Under 18 U.S.C. § 3632(d)(4)(D)(xxii), a prisoner serving a sentence for unlawful possession or use of a firearm during a crime of violence is not eligible to receive FSA time credits.

Cross submitted one administrative remedy request (Administrative Remedy 1225085-F1) to the Warden on approximately January 13, 2025. After receiving the Warden's denial, he did not appeal to the Regional or Central Offices, which are the next steps in the BOP's administrative remedy process.

Legal Standard: Exhaustion of Administrative Remedies

Although 28 U.S.C. § 2241 (the federal habeas corpus statute) does not expressly require exhaustion of administrative remedies, the Eighth Circuit Court of Appeals has long required prisoners to complete available BOP administrative remedies before seeking habeas relief. See Mathena v. United States, 577 F.3d 943, 946 (8th Cir. 2009); United States v. Chappel, 208 F.3d 1069, 1069 (8th Cir. 2000). The rationale is twofold: (1) the BOP may correct the error before litigation becomes necessary, and (2) the administrative process develops the factual and legal record before the case reaches a federal court.

A court may excuse exhaustion due to time constraints or where pursuing administrative remedies would obviously be futile. Henderson v. Eischen, No. 23-CV-1336, 2023 WL 4422535, at *1 (D. Minn. June 7, 2023).

Cross's Arguments for Excusing Exhaustion

Futility

Cross argued that appealing within the BOP would be futile because the agency would categorically reject his claim. The court rejected this argument. Citing Abieanga v. Eischen, No. 24-CV-3131, 2024 WL 4557612, at *2 (D. Minn. Sept. 18, 2024), the court held that a prisoner's belief that the BOP is unlikely to agree with him does not render administrative remedies futile. The court also observed that, as FSA litigation continues to develop nationally, the BOP's position on any given issue is not necessarily fixed.

Irreparable Harm

Cross argued that every month of delay in judicial review irretrievably deprives him of liberty. The court rejected this argument on two grounds. First, Cross is not scheduled for release until September 2028, giving him substantial time to complete the administrative process before his claim would become moot. Second, the court noted that a prisoner cannot evade the exhaustion requirement by delaying pursuit of administrative remedies and then seeking emergency judicial relief at the last moment.

Recommendation and Disposition

Magistrate Judge Docherty recommends that Cross's petition for a writ of habeas corpus be denied without prejudice for failure to exhaust administrative remedies, and that the matter be dismissed. A denial without prejudice means Cross is not barred from refiling if and when he completes the BOP's full administrative remedy process.

This is a Report and Recommendation from a Magistrate Judge, not a final order of the District Court. The parties have 14 days after service to file written objections under District of Minnesota Local Rule 72.2(b)(1). The District Court judge assigned to the case will have the final word.