United States District Court, D. New Jersey
September 14, 2005.
HASSAN JAMES, Petitioner,
WARDEN C.J. DeROSA, et al., Respondents.
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 served by requiring Petitioner to proceed with
his administrative remedies. This Court, therefore, will proceed
to the merits of Petitioner's claim.
B. Petitioner's Claim
United States Code Title 18 Section 3621(b) requires the Bureau
of Prisons to "make available appropriate substance abuse
treatment for each prisoner the Bureau determines has a treatable
condition of substance addiction or abuse." 18 U.S.C. § 3621(b).
As an incentive for prisoners to successfully complete the
program, "[t]he period a prisoner convicted of a nonviolent
offense remains in custody after successfully completing a
treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the
prisoner must otherwise serve." 18 U.S.C. § 3621(e)(2)(B).
The BOP's residential drug abuse treatment program consists of
three components: (1) a unit-based residential program lasting
between six and 12 months, (2) an institution transition phase,
and (3) a community transitional services component during which
the inmate is transferred to a community corrections center or to
home confinement for up to six months. BOP Program Statement
5330.10, Drug Abuse Programs Manual, § 5.2.1. In order to be
eligible for early release consideration under § 3621(e), "an
inmate must be able to participate in community-based programs so
as to complete the transitional services component of treatment
in a Community Corrections Center or on home confinement." BOP
Program Statement 5330.10, § 6.1.1(5).
Pursuant to the governing statutory sections, and in an
exercise of the discretion vested in the Director of the Federal
Bureau of Prisons, the Bureau has promulgated regulations
prescribing certain additional early release criteria, inter
(v) Inmates who are not eligible for participation in
a community-based program as determined by the Warden
on the basis of his or her professional discretion;
. . .
28 C.F.R. § 550.58(a)(v). BOP Program Statement 7310.04,
Community Corrections Center (CCC) Utilization and Transfer
Procedure, ¶ 10(f), provides that "[i]nmates with unresolved pending charges, or detainers, which will likely lead to arrest,
conviction, or confinement" shall not ordinarily participate in
CCC programs. Thus, inmates with pending detainers are prohibited
from participating in the community-based component of the Drug
Abuse Treatment Program and from consideration for early release.
In Lopez v. Davis, 531 U.S. 230 (2001), the Supreme Court
held that it was a proper exercise of discretion by the Bureau of
Prisons to categorically deny eligibility for early release to
prisoners with "a prior felony or misdemeanor conviction for
homicide, forcible rape, robbery, or aggravated assault, or child
sexual abuse offenses," 28 C.F.R. § 550.58(a)(1)(iv), or to
prisoners whose current offense is one of certain enumerated
felonies involving the use or attempted use of force, or
involving the carrying, possession, or use of a firearm or other
dangerous weapon, or involving sexual abuse upon children,
28 U.S.C. § 550.58(a)(1)(vi). In reaching this conclusion, the Court
first noted that the language of § 3621(e)(2)(B) grants the
Bureau discretion to reduce a prisoner's sentence for successful
completion of a substance abuse treatment program, but fails to
define any parameters by which the Bureau should exercise that
In this familiar situation, where Congress has
enacted a law that does not answer "the precise
question at issue," all we must decide is whether the
Bureau, the agency empowered to administer the early
release program, has filled the statutory gap "in a way that
is reasonable in light of the legislature's revealed
design." We think the agency's interpretation is
reasonable both in taking account of preconviction
conduct and in making categorical exclusions.
Lopez, 531 U.S. at 242 (citing, inter alia, Chevron,
U.S.A., Inc. v. National Resources Defense Council, Inc.,
467 U.S. 837
, 842 (1984)) (other citations omitted). Thus, "the
statute's restriction of early release eligibility to nonviolent
offenders does not cut short the considerations that may guide
the Bureau." Lopez, 531 U.S. at 242. See also Magnin v.
Beeler, 110 F.Supp.2d 338 (D.N.J. 2000) (upholding
28 C.F.R. § 550.58(a)(1)(vi), before Lopez, as a valid exercise of the
The Court of Appeals for the Eighth Circuit has stated that it
sees no difference between the categorical exclusion examined by
the Supreme Court in Lopez v. Davis and the categorical
exclusion of prisoners subject to an immigration detainer in
28 C.F.R. § 550.58(a)(1)(I), holding that the latter is also within
the Bureau's discretion. United States v. Lopez-Salas,
266 F.3d 842, 848 (8th Cir. 2001). See also McLean v. Crabtree,
173 F.3d 1176 (9th Cir. 1999) (upholding immigration detainer
provision before Lopez); Rublee v. Fleming, 160 F.3d 213 (5th
Cir. 1998) (holding pre-Lopez that exclusion of prisoners who
cannot complete community-based component of program is not a
violation of due process). Here, the regulation and policy challenged by Petitioner, which
prohibits early release of prisoners subject to detainers, is one
in which "custody" is a rational consideration, and Petitioner
has not suggested any reason why it is unreasonable for the
Bureau to take into account such status in determining
eligibility for the program or for early release. This Court
finds that the existence of a detainer related to an unserved
state sentence is a legitimate factor to consider in determining
eligibility for custody-related programming. Accordingly,
Petitioner has failed to establish any due process violation, or
any violation of BOP policy, in his exclusion from consideration
for early release.
For the reasons set forth above, Petitioner's claim challenging
his exclusion from consideration for early release under
18 U.S.C. § 3621(e) will be denied. An appropriate order follows.
© 1992-2005 VersusLaw Inc.