United States District Court, D. New Jersey
October 18, 2005.
HOWARD DENNIS KELLY, Petitioner,
WARDEN JOHN NASH, et al., Respondents.
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)
(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 "irreparable injury").
Here, the administrative remedy process would have been futile
for Kelly. He has already passed the initial CCC placement date
recommended, and it is unlikely that the BOP would have reversed
its recalculated decision for a shorter CCC placement period,
given the BOP's justifications for recomputing Kelly's CCC
placement date. 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); 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).
Therefore, in this case, the Court will excuse the exhaustion
requirement, as it would be futile to require petitioner to
administratively exhaust his claim respecting the BOP's CCC
placement review and referral process. C. The Recalculated CCC Placement Date Is Justified
The Court had dismissed this matter as moot based on the
Government's representation that petitioner's pre-release
preparation date was recomputed for July 14, 2005, six months
before Kelly's projected release date of January 14, 2006. In
moving papers submitted to this Court on April 12, 2005, the
Government stated to this Court that "[t]he BOP has afforded
Kelly the sentence computation correction that he had sought, and
there is no longer any live controversy for this Court to
adjudicate under the habeas statute." (Respondents' Memorandum of
Law, pg. 8, Docket Entry No. 8-2). However, the Government noted
that not every inmate is eligible for CCC placement. For
instance, those inmates with unresolved pending charges or
detainers; those designated as deportable aliens; those needing
in-patient medical care; and those inmate who pose a significant
threat to the community may be deemed ineligible for
participation. BOP Program Statement 7310.04, Community
Corrections Center (CCC) Utilization and Transfer Procedure,
Section 10. (Resp. Mem. Of Law, (Doc. Entry No. 8-2), dated April
12, 2005, at pg. 7).
In response to Kelly's motions, the Government asserts that
Kelly's CCC placement date was reviewed by his Unit Team at FCI
Fort Dix, considering Kelly's transition needs and individual
circumstances. The Unit Team initially recommended a CCC placement date for July 19, 2005. A referral packet was forwarded
for further internal review. The Case Management Coordinator
(CMC) Donahue reviewed the referral packet*fn2 and expressed concern that a six-month CCC placement was not
appropriate for Kelly given his current and prior history, which
included escape and violence.*fn3 Based on Donahue's
concern, the Unit Team reconsidered Kelly's CCC placement date
and determined that a three month placement was reasonable to
accommodate Kelly's transitional needs. (Resp. Mem. Of Law, Doc.
Entry No. 14, at pp. 4-5).
Based on these representations, the Court does not find the
respondents' recalculation of a shorter CCC placement period to
be a "deliberate obstruction of justice" or an act of contempt.
The BOP had justifiable concerns against a longer CCC placement
given Kelly's past parole violations, escape charge, and
potential risk of harm to the community in light of his criminal
history involving violence. However, the Court is somewhat vexed
by the Government's belated justifications for reconsidering
Kelly's CCC placement, based on Kelly's prior history of escape
and violence, after its initial representation to the Court in
April 2005 that a pre-release preparation date would occur in July 2005. These issues regarding Kelly's current and prior
history, which clearly affect decisions on CCC placement, should
have been presented to the Court in the Government's initial
motion to dismiss the petition. Kelly's history of escape and
parole violations, and his violent criminal record, are not new
information. This information was plainly part of Kelly's record
when the respondents made their representation to the Court in
April 2005. In fact, the Government alluded to Kelly's prior
history in its statement of the case, but did not argue that
these factors would serve to preclude a full six months CCC
placement, the very issue in controversy in Kelly's petition.
Nevertheless, it appears that the representation was made to the
Court before the CCC review and referral process was actually
completed. Thus, at worst, the respondents' representation in
April 2005 was premature, and not purposefully misleading, as
suggested by petitioner.
Further, the respondents' revised CCC placement date for Kelly
is consistent with the applicable federal statutes and BOP
policies respecting CCC referral decisions.
Federal law provides that prisoners shall, to the extent
practicable, serve the last portion of their imprisonment under
conditions that will facilitate their transition from prison life
to the community. (c) Pre-release custody. The Bureau of Prisons
shall, to the extent practicable, assure that a
prisoner serving a term of imprisonment spends a
reasonable part, not to exceed six months, of the
last 10 per centum of the term to be served under
conditions that will afford the prisoner a reasonable
opportunity to adjust to and prepare for the
prisoner's re-entry into the community. . . .
18 U.S.C. § 3624(c).
However, as stated above, not every inmate is eligible for CCC
placement. Inmates with unresolved pending charges, detainers or
designated as deportable aliens, and those inmate who pose a
significant threat to the community may be deemed ineligible for
participation. BOP Program Statement 7310.04, Community
Corrections Center (CCC) Utilization and Transfer Procedure,
Section 10. Here, Kelly's CCC placement was ultimately determined
based on considerations affecting Kelly's potential threat to the
community as evidenced by his documented history of escape,
parole violations, and violence.
Thus, it is clear that the BOP's ultimate decision in this
regard was within the agency's discretionary authority under §
3621(b), and the requirements of § 3624(c), based on its
consideration of numerous factors, including Kelly's stated
transitional needs and special supervision concerns.
There is no indication from the facts and circumstances
considered in the CCC referral process in this case that Kelly
was denied due process, or that the respondents' actions were in
contempt of this Court or the law. In general, an inmate does not have a liberty interest in assignment to a particular
institution or to a particular security classification. See
Wilkinson v. Austin, 125 S.Ct. 2384, 2393 (2005) (the
Constitution does not give rise to a liberty interest in avoiding
transfers to more adverse conditions of confinement); Olim v.
Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano,
427 U.S. 215, 224-25 (1976); Montayne v. Haymes, 427 U.S. 236, 243
(1976); Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976) (noting
that prison classification and eligibility for rehabilitative
programs in the federal prison system are matters delegated by
Congress to the "full discretion" of federal prison officials and
thus implicate "no legitimate statutory or constitutional
entitlement sufficient to invoke due process"). See also
Sandin v. Connor, 515 U.S. 472, 484-86 (1995) (holding that a
liberty interest is implicated only where the action creates
"atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life" or creates a "major
disruption in his environment").
Moreover, the placement of prisoners within the federal prison
system is among the "wide spectrum of discretionary actions that
traditionally have been the business of prison administrators
rather than of the federal courts." Id., 427 U.S. at 225.
Therefore, it appears that Kelly received all the process he was
due in the BOP's discretionary decision as to his transitional
CCC placement date. Kelly's motion to re-open this matter will be denied and the motions for an Order of contempt
against the respondents for their alleged "deliberate obstruction
of justice" will be denied for lack of merit.
Therefore, for the reasons expressed above, Kelly's motions to
re-open this case, and to find respondents in contempt and
obstruction of justice will be denied. An appropriate Order
© 1992-2005 VersusLaw Inc.