United States District Court, D. New Jersey
August 17, 2005.
LOUIS PALACIO, Petitioner,
JOHN NASH, Warden, Respondent.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Petitioner, Louis Palacio, has submitted to the Court the
instant petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2241. The respondent has filed a Motion to Dismiss for
Lack of Jurisdiction. For the reasons set forth below, the
respondent's motion will be denied. Respondents will be ordered
to Answer the petition. BACKGROUND
Petitioner states that he is being denied credit on his federal
sentence for time served in state custody. According to
Petitioner, if the relief he seeks is granted, he would have been
eligible for halfway house placement in December 2004, at the
earliest. Petitioner sought to remedy his credit issue while
incarcerated in state custody. On May 16, 2002, the Federal
Bureau of Prisons ("BOP") sent him a letter telling him that his
request for jail credit would be reviewed when he was received in
federal custody. The letter also informed Petitioner that if he
wished to have his case reviewed for nunc pro tunc
designation, he could forward copies of his criminal judgment to
the BOP regional office. See Petition, Exhibit 1.
Petitioner requested nunc pro tunc designation to the BOP
Northeast Regional Office. The request was denied by letter dated
July 31, 2002. The letter reviewed the merits of Petitioner's
request and definitively stated: ". . . your request for a nunc
pro tunc designation is denied." See Petition, Exhibit 3.
Petitioner filed the instant petition on November 22, 2004,
after payment of the filing fee. On March 10, 2005, this Court
granted Respondent permission to file a motion to dismiss in lieu
of an Answer. On March 21, 2005, Respondent filed the instant motion to
dismiss, arguing that the case should be dismissed, without
prejudice, for failure to exhaust administrative remedies.
Respondent argues that Petitioner has not utilized the formal,
three-step administrative remedy process to address his
On April 25, 2005, Petitioner responded to the motion to
dismiss, asking this Court to proceed to the merits of the
petition and arguing that formal exhaustion of administrative
remedies should not bar consideration of the merits in his case.
He also attached to the response an Informal Resolution Form,
dated March 20, 2005, setting forth his concerns. He received a
response from his correctional counselor stating that he had
already filed a "BP 9" on this matter. See Petitioner's
Response to Motion, Exhibit 1.
Before seeking habeas relief pursuant to § 2241, inmates must
exhaust available administrative remedies. See Moscato v.
Federal Bureau of Prisons, 98 F.3d 757 (3d Cir. 1996). To
exhaust administrative remedies before the Bureau of Prisons, a
federal inmate seeking review of an aspect of his confinement
must first seek to resolve the dispute informally. See
28 C.F.R. § 542.13. If the inmate does not receive a favorable
termination, he may submit a formal written Administrative Remedy Request for response by the warden of the facility. See
28 C.F.R. § 542.14. If the inmate is not satisfied with the warden's
response, he may appeal the warden's decision to the Regional
Director within 20 days of the date of the decision. If he is not
satisfied with the Regional Director's response, he may submit an
appeal of the Regional Director's decision to the Central Office
within 30 days of the date of the decision. See C.F.R. §
542.15. If these responses are not received by the inmate within
the time allotted for reply, "the inmate may consider the absence
of a response to be a denial at that level." 28 C.F.R. § 542.18.
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 "unequivocally" would 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 were 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.
First, Petitioner has, under the guidance of the Administrator of
the BOP's Inmate Systems Management, requested nunc pro
tunc designation. The Northeast Regional Office considered the
merits of Petitioner's claim, wrote its findings, and denied the
request. Further, Petitioner states that if his claims were to
succeed on habeas review, his release date from federal custody
could have been as early as December 2004. Thus, considering the
potential time restraints, it would be futile to require
Petitioner to request again the same relief from the same
regional office, to presumably, receive the same response.
Therefore, Respondent's Motion to Dismiss for Lack of
Jurisdiction is denied. CONCLUSION
Based on the foregoing, Respondent's motion to dismiss for lack
of jurisdiction is hereby denied. Respondent will be ordered to
Answer the claims presented in the Petition. An appropriate Order
accompanies this Opinion.
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