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KELLY v. NASH

October 18, 2005.

HOWARD DENNIS KELLY, Petitioner,
v.
WARDEN JOHN NASH, et al., Respondents.



The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

OPINION

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.

  BACKGROUND

  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.

  DISCUSSION

  A. Jurisdiction

  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) (exhaustion ...

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