The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Hassan James, a prisoner confined at the Federal
Correctional Institution at Fort Dix, New Jersey, has submitted a
petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241.*fn1 I. BACKGROUND*fn2
On September 6, 2002, Petitioner was sentenced here in the
District of New Jersey to a term of imprisonment of 52 months
imprisonment to be followed by three years supervised release,
pursuant to his conviction for conspiracy to utter counterfeit
United States currency, in violation of 18 U.S.C. § 371, and
possession of counterfeit checks, in violation of
18 U.S.C. § 513(a).
Petitioner participated in the Residential Drug Abuse Treatment
at FCI Fort Dix. See 18 U.S.C. 3621(e). On November 7, 2002,
however, Petitioner was advised that he would not be eligible for
early release upon successful completion of the program because a
detainer had been lodged against him by the State of New Jersey,
based upon a New Jersey sentence he was serving concurrently to
the federal sentence. Petitioner successfully completed the
Residential Drug Abuse Treatment program on May 3, 2004.
Petitioner contends that the Respondent wardens and Bureau of
Prisons have abused their discretion and failed to follow written
procedures and policies by not considering him for early release in connection with his successful completion of the
Residential Drug Abuse Treatment program.
Respondents have answered that the Petition should be
dismissed, because Petitioner failed to exhaust his
administrative remedies, and they also have responded on the
merits. Petitioner has replied that exhaustion of his
administrative remedies would be futile.
II. STANDARDS FOR A PRO SE PETITION
United States Code Title 28, Section 2243 provides in relevant
part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97
, 106 (1976); Haines v. Kerner, 404 U.S. 519
(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). III. ANALYSIS
A. Exhaustion of Administrative Remedies
All parties are in agreement that Petitioner has not exhausted
his administrative remedies.*fn3
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, a federal prisoner ordinarily may not bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the execution of his sentence, until he has exhausted
all available administrative remedies. See, e.g., Callwood
v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United
States Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka
v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). The exhaustion
doctrine promotes a number of 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. 2000)
(exhaustion not required where delay would subject petitioner to
Similarly, exhaustion of administrative remedies is not
required where the issue presented involves only statutory
construction, because there is no need for an administrative
agency to develop a factual record or to apply its expertise with
respect to the circumstances presented. See Bradshaw v.
Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981) (citing U.S. ex re.
Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656, 659 (3d Cir.
1973), rev'd on other grounds, 417 U.S. 653 (1974)).
Here, there is no dispute or uncertainty as to the operative
facts. Petitioner was denied early release pursuant to
established Bureau of Prisons policies. Respondents do not
suggest that those policies left open the possibility of the
exercise of discretion that would have permitted Petitioner to be
granted early release. To the contrary, the sole issue is the
validity of the policy categorically excluding Petitioner from
consideration for early release, as described more fully below.
Accordingly, it does not appear that the goals of the exhaustion
policy would be ...