The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge
This matter is before the court on pro se petitioner Robert Treglia's petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Treglia, who on August 28, 1998 successfully completed the 500 hour Residential Drug Abuse Program ("RDAP") operated by the federal Bureau of Prisons ("BOP"), alleges that the BOP has improperly denied him eligibility for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B), which provides that prisoners "convicted of a nonviolent offense" shall be eligible for a sentence reduction of up to one year upon completion of the RDAP. The court finds that the BOP has improperly based its decision to deny Treglia eligibility for a sentence reduction under § 3621(e)(2)(B) on facts other than those that form the basis for the elements of the offenses for which Treglia was convicted, in violation of the holding of the U.S. Court of Appeals in Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997), and that Treglia has established his threshold eligibility for a sentence reduction under § 3621(e)(2)(B). Accordingly, the court remands this matter to the BOP for consideration of whether Treglia, as a person eligible for a sentence reduction under § 3621(e)(2)(b), should actually be granted a sentence reduction, and for further proceedings consistent with this Opinion and the accompanying Order.
Treglia is presently incarcerated at FCI Fort Dix serving a sentence of 110 months imprisonment, to be followed by five years supervised release, imposed by the U.S. District Court for the District of Connecticut on January 21, 1993, upon his conviction for distribution and possession with intent to distribute cocaine and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Treglia's sentence was enhanced under U.S.S.G. 2D1.1 because a loaded .25 caliber semi-automatic pistol was found in his car at the time of his arrest. Treglia's projected release date is December 31, 1999.
On October 5, 1995, the BOP determined that Treglia was qualified to participate in the RDAP, and he signed an agreement to participate in the RDAP on that date, although he did not actually enroll until October 31, 1997. Treglia signed a second agreement to participate in the RDAP on November 13, 1997.
On several occasions, however, the BOP informed Treglia that although he qualified to participate in the RDAP, he was not eligible for early release under § 3621(e)(2)(b). On July 16, 1997, the BOP advised Treglia that it did not appear that he was eligible for early release because his "instant offense is violent." (Wills Decl., Ex. I.) On November 7, 1997, the BOP again informed Treglia that he was not eligible for early release because his offense was a "[c]rime listed in the Director's Discretion as contained in the Categorization of Offenses Program Statement." (Wills Decl., Ex. J.) On November 12, 1997, the BOP again advised Treglia that he was not eligible for early release because his offense was a "[c]rime listed under the Director's Discretion as contained in the Categorization of Offenses Program Statement." (Wills Decl., Ex. K.)
Treglia filed an administrative appeal on December 3, 1997. Treglia argued that the BOP's consideration of sentencing enhancements to deny eligibility for early release was beyond the authority granted to the BOP by Congress. On December 23, 1997, the respondent denied Treglia's request for administrative relief, noting that Treglia was not eligible for early release under § 3621(e)(2)(B) because his "offense is listed in Program Statement 6162.04, Categorization of Offenses, dated October 7, 1997, as one that `in the Director's discretion shall preclude an inmate's receiving certain Bureau program benefits" including early release under § 3621(e)(2)(B). (Wills Decl., Ex. L.)
Treglia appealed to the Regional Director on January 8, 1998. On February 4, 1998, the Regional Director remanded the matter to FCI Fort Dix for reconsideration in light of the decision by the U.S. Court of Appeals for the Third Circuit in Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997). The Regional Director also advised Treglia of his right to appeal to the General Counsel of the BOP within 30 days if he was "dissatisfied with this response." (Wills Decl., Ex. M.)
On March 5, 1998, having received no ruling on reconsideration by the authorities at FCI Fort Dix, Treglia appealed the Regional Director's decision to the National Appeals Administrator. On March 25, 1998, the National Appeals Administrator declined to address the merits of Treglia's appeal, noting that it was still under review on reconsideration by the authorities at FCI Fort Dix. (Wills Decl., Ex. N.) On March 10, 1998, the authorities at FCI Fort Dix advised Treglia of their determination that he remained ineligible for early release "based on having an instant offense which precludes early release based on the Discretion of the Director of the Bureau of Prisons as outlined in the Categorization of Offenses program statement." (Wills Decl., Ex. O.) Treglia filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2241 on June 10, 1998.
A. Exhaustion of Administrative Remedies
As a threshold matter, the court must address respondent's argument that Treglia has not exhausted available administrative remedies. Applicable BOP regulations provide for a three-level administrative process: (1) filing a complaint or grievance with institution staff; (2) appeal to the Regional Director if dissatisfied with the result at the institution level; and (3) appeal to the National Appeals Administrator in the Central Office of the BOP if dissatisfied with the result at the Regional Director level. See 28 C.F.R. § 542.10. This three-step exhaustion of administrative remedies generally is a prerequisite to filing suit and failure to exhaust may result in dismissal. See Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir. 1996).
In the present case, Treglia prosecuted his appeal up the administrative ladder to the National Appeals Administrator, which declined to reach the merits of his appeal because the authorities at FCI Fort Dix were still in the process of reconsidering their initial determination that Treglia was ineligible for early release on remand from the Regional Director. Respondent maintains that Treglia should have started the administrative appeals process over again once the authorities at FCI Fort Dix issued their determination on reconsideration on March 10, 1998, instead of filing the instant petition for writ of habeas corpus. Technically, ...