The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
This matter is before the Court on petitioner's three separate
motions to (1) re-open this matter, (Docket Entry No. 11); (2) to
hold respondent Warden John Nash in contempt, (Docket Entry No.
12); and (3) to cite respondents for deliberate obstruction of
justice, (Docket Entry No. 13). Respondents have filed an
opposition to all three motions (Docket Entry No. 14), and
petitioner filed a reply (Docket Entry No. 15). The Court will consider all moving, opposition, and reply papers respecting
the three motions pursuant to Fed.R.Civ.P. 78.
Petitioner, Howard Dennis Kelly ("Kelly"), first asks the Court
to re-open this case, which was closed pursuant to an Order of
Dismissal entered on May 12, 2005. (Docket Entry No. 10). In his
initial petition, Kelly challenged the respondents' decision to
limit Kelly to 4½ months of placement in a Community Corrections
Center ("CCC") for transitional purposes before the end of his
sentence. Kelly argued that he is serving consecutive sentences
for a total prison term exceeding 11 years, thus entitling him to
the full six months CCC placement under 18 U.S.C. § 3264(c).
On April 12, 2005, the respondents filed a motion to dismiss on
the grounds that the petition was moot because petitioner has
been afforded the relief he seeks in the petition. Namely, the
respondents recalculated Kelly's pre-release preparation date at
July 14, 2005, a full six months before his projected release
date of January 14, 2006. Based on respondents' declaration, the
Court dismissed the petition as moot.
On June 17, 2005, Kelly filed a motion to re-open the case. In
his motion, Kelly asserts that shortly after the petition was
dismissed, the respondents reduced his CCC placement by 90 days.
Kelly further contends that he has an exemplary behavior record during his incarceration, with outstanding work performance
evaluations and superior program participation for 10½ years.
Kelly notes that he was given a commendation letter for
preventing an assault of a female Bureau of Prisons ("BOP")
employee, and a superior achievement award.
On June 21, 2005, Kelly filed a second motion to hold
respondent Warden John Nash in contempt for reducing Kelly's CCC
placement by 90 days in violation of the representation to this
Court that petitioner would be afforded 180 days in CCC
placement. On June 28, 2005, Kelly filed his third motion asking
the Court to cite respondents for deliberate obstruction of
justice. In particular, Kelly argues that respondents have
disregarded their own administrative recommendations, after Kelly
filed for an administrative remedy in February 2005. By response
dated March 14, 2005, respondent Nash advised Kelly that he would
be considered for CCC placement on July 14, 2005. Respondent
failed to comply with this recommendation.
Respondents filed a letter in opposition to Kelly's motions on
July 1, 2005. First, the Government states that Kelly's
grievances about the duration of his end-of-sentence CCC
placement is an individual challenge to the conditions of his
confinement, and is not cognizable under a § 2241 habeas
petition, citing Richmond v. Scibana, 387 F.3d 602, 605-06
(7th Cir. 2004). Second, the respondents argue that Kelly is
not entitled to six months CCC placement because inmates have no
protected liberty interest in the assignment to a particular
institution, facility, or rehabilitation program. See Olim v.
Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano,
427 U.S. 215, 224-26 (1976); Young v. Quinlan, 960 F.2d 351, 358 n.
16 (3d Cir. 1992); Gambino v. Gerlinski, 96 F. Supp.2d 456,
458-60 (M.D.Pa. 2000), aff'd, 216 F.3d 1075 (3d Cir. 2000).
Third, respondents "split hairs" with Kelly's contention that
Warden Nash "promised" that Kelly would receive a full six months
CCC placement. Instead, the Government contends that Nash meant
only that Kelly would be considered for CCC placement on or after
July 14, 2005. Finally, the Government argues that Kelly's
recourse if dissatisfied with the result of the CCC review and
referral process is through the administrative remedy process,
which Kelly has not done.
Preliminarily, the Court disagrees with the respondents'
contention that a § 2241 habeas petition is not the proper
vehicle in which to present petitioner's claims. "Section 2241 is
the only statute that confers habeas jurisdiction to hear the
petition of a federal prisoner who is challenging not the
validity but the execution of his sentence." Coady v. Vaughn,
251 F.3d 480, 485-86 (3d Cir. 2001). An action under § 2241 "generally challenges the execution of a federal prisoner's
sentence, including such matters as the administration of parole,
computation of a prisoner's sentence by prison officials, prison
disciplinary actions, prison transfers, types of detention and
prison conditions." Jiminian v. Nash, 245 F.3d 144, 146 (2d
Cir. 2001) (emphasis in original).*fn1 See also
Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000)
("petitions that challenge the manner, location, or conditions of
a sentence's execution must be brought pursuant to § 2241
. . ."); Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) ("A
section 2241 petition on behalf of a sentenced prisoner attacks
the manner in which the sentence is being carried out or the
prison authorities' determination of its duration . . .");
Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991)
("challenges to the length, appropriateness or conditions of confinement are properly brought under
28 U.S.C. § 2241"); United States v. Ferri, 686 F.2d 147, 158 (3d Cir.
1982), cert. denied, 459 U.S. 1211 (1983) (claims attacking
the execution of a petitioner's sentence are properly brought
under 28 U.S.C. § 2241). A petition under § 2241 in the district
where the federal inmate is confined provides a remedy "where
petitioner challenges the effects of events `subsequent' to his
sentence." Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir. 1976),
cert. denied, 429 U.S. 851 (1976).
Indeed, "Section 2241 of title 28 has long been recognized as
the basis for challenging the execution of the sentence of a
person in federal custody or a person sentenced for violating a
federal criminal statute." Zucker v. Menifee, 2004 WL 102779,
*3 (S.D.N.Y. January 21, 2004) (citing Maleng v. Cook,
490 U.S. 488, 493 (1989) (per curiam)). Additionally, this Court has the
authority to compel the BOP to exercise its discretion in
selecting and designating a place for service of sentence. See
McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998). Habeas corpus
relief under 28 U.S.C. § 2241 is available to effectuate this
authority to the extent that the prisoner is in any form of
"custody" in this district. See Hensley v. Municipal Court,
411 U.S. 345 (1973). B. Exhaustion of Administrative Remedies
Next, respondents argue that Kelly's proper recourse if
dissatisfied with the result of the CCC review and referral
decision is through the BOP's administrative remedy process.
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)