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Abbott v. Bureau of Prisons

April 13, 2010

EDWARD ABBOTT, PETITIONER,
v.
BUREAU OF PRISONS, RESPONDENT.



The opinion of the court was delivered by: Robert B. Kugler, U.S.D.J.

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon an application titled by Petitioner "Rule 60(B) and the Fairness in Cocaine Sentencing Act," see Docket Entry No. 10, and it appearing that:

1. On December 20, 2004, the Clerk received transfer papers of Petitioner's § 2241 petition and accompanying docket from the United States District Court for the Northern District of Florida. See Docket Entry No. 7 (encompassing prior Docket Entries Nos. 1 to 6).

2. In his § 2241 petition, Petitioner challenged Respondent's model of calculation of good conduct credits. See id., see also Docket Entry No. 8, at 2 (detailing Petitioner's challenges). Specifically, Petitioner focused on Respondent's construction of 18 U.S.C. § 3624(b). See id.

3. On March 11, 2005, this Court issued an order and accompanying opinion denying the petition. See Docket Entries Nos. 8 and 9. In its opinion, the Court detailed to Petitioner the reasons for denial of Petitioner's challenges. See Docket Entry No. 8, at 3-5, 7-11.

4. Consequently, this matter was terminated on March 11, 2005. On February 8, 2010, that is, almost five years after the termination of this matter, the Clerk received Petitioner's instant application titled "Rule 60(B) and the Fairness in Cocaine Sentencing Act." See Docket Entry No. 10. The application, a thirteen-page document, largely replicates Petitioner's original § 2241 petition, challenging, once again, Respondent's construction of § 3624(b). See id. at 1-2, and 5. In addition, Petitioner asserts that this Court's decision dismissing his prior § 2241 petition (i.e., the decision rendered in 2005) was made in order for the Court to gain employment promotion, for itself and for unspecified United States Attorney, and also in order to ensure increase of value for the publically traded shares of Respondent. See id. at 3. Petitioner continues by asserting that Respondent does not provide sufficient health care (to unspecified inmates, that might or might not include Petitioner), and the diet provided by Respondent caused malnutrition (also to unspecified inmates, that might or might not include Petitioner). Petitioner concludes by stating that, in light of "the Fairness in Cocaine Sentencing Act, which is before the Senate at the present time, Petitioner qualifies for immediate release." Id. at 7 and 11 (offering, in addition to that statement, Petitioner's assurances that the Fairness in Cocaine Sentencing Act would necessarily be enacted into law but not detailing how such enactment, if it takes place, would affect Petitioner's term of imprisonment).

5. To the degree Petitioner wishes to make a Rule 60(b) motion, this motion must be denied. Federal Rule of Civil Procedure 60(b) provides that the Court may, in its discretion, provide relief from a final judgment for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under rule 59(b); (c) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (d) the judgment is void; (e) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is not longer equitable; or (f) any other reason that justifies relief, A motion under Rule 60(b) must be made within a reasonable time -- and for reasons (a), (b), and (c) no more than a year after the entry of the judgment or order or the date of the proceeding. See Fed. R. Civ. Pro. 60(c). None of the criteria set forth in Rule 60(b) are present here. Nor has Petitioner filed this motion within a reasonable time, and he certainly did not file it within a year after the Court's March 11, 2005 decision. Accordingly, his Rule 60(b) motion must be denied.

6. To the degree Petitioner wishes to re-raise the challenges already addressed and dismissed by this Court in 2005, the application at hand presents abuse of writ. The Court of Appeals clarified the workings of the doctrine of abuse of writ as follows:

When a prisoner files multiple petitions [seeking] relief [in the form of a writ], the abuse of the writ doctrine as set forth in 28 U.S.C. § 2244(a) may bar his claims: No circuit or district judge shall be required to entertain an application for [another writ] to inquire into the detention of a person . . . if it appears that the [same issue was resolved] by a judge or court of the United States on a prior application for a writ of habeas corpus . . . .

Furnari v. United States Parole Comm'n, 531 F.3d 241, 2008 U.S. App. LEXIS 14512, at *6-8 (3d Cir. July 9, 2008) (relying on Sanders v. United States, 373 U.S. 1, 9 (1963)). "The Court in Sanders explained that a court may grant controlling weight to a denial of a prior application for [a writ] when three criteria are met: ([a]) the same ground presented in the successive application was determined adversely to the applicant on the previous application; ([b]) the previous determination was made on the merits; and ([c]) 'the ends of justice' would not be served by reaching the merits of the subsequent application." Id. at 21 (citing Sanders 373 U.S. at 11). Therefore, such repeated challenges will be dismissed on the grounds already articulated by this Court in Docket Entry No. 8. In addition, the Court strongly cautions Petitioner against future filing of pleadings raising already dismissed claims, since Petitioner's persistence at that endeavor could earn Petitioner an abuse-of-writ bar and other sanctions, if appropriate.

7. To the degree Petitioner wishes to raise challenges under the Fairness in Cocaine Sentencing Act, that is, a proposed bill H.R. 3245, which -- thus far -- has been referred to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, and which had no activity reported upon since July 29, 2009, Petitioner's challenges must be dismissed, since Petitioner's reliance on a non-enacted provision presents, by definition, a speculative claim. Section 2241 of Title 28 of the United States Code provides, in relevant part, that "[t]he writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2241(c) (3), and does not confer upon this Court jurisdiction to grant a writ for violation of the Constitution or laws "that Petitioner believes would or should be enacted." Consequently, this challenges will be dismissed for failure to state a cognizable federal claim and without examination of the apparent impossibility of administrative exhaustion of such hypothetical challenges.

8. Moreover, even if Petitioner wished to attack Respondent's calculation of his prison term on the grounds other than those dismissed by this Court in 2005 and other than those based on the Fairness in Cocaine Sentencing Act, Petitioner would have to do so in an action other than this matter, i.e., by initiating a new and separate § 2241 proceedings. The rationale of this requirement is two-fold.

a. At the outset, Petitioner has to administratively exhaust these different challenges. Respondent's Administrative Remedy Program is a three-tier process available to inmates confined in institutions operated by respondent who "seek formal review of an issue relating to any aspect of his/her confinement." 28 C.F.R. § 542.10(a). An inmate must generally attempt to informally resolve the issue by presenting it to staff in a BP-8 form. See 28 C.F.R. § 542.13. If the issue is not informally resolved, then the inmate may submit a request for administrative remedy (BP-9) to the Warden. See 28 C.F.R. § 542.14. An inmate who is dissatisfied with the Warden's response may appeal to the Regional Director (BP-10), and an inmate dissatisfied with the Regional Director's decision may appeal to the General Counsel in the Central Office (BP-11). See 28 C.F.R. § 542.15(a). Appeal to the General Counsel is the final administrative appeal. See id. The regulations further provide that the Warden shall respond within 20 calendar days; the Regional Director shall respond within 30 calendar days; and the General Counsel shall respond within 40 calendar days. See 28 C.F.R. § 542.18. And the regulation provides that if the inmate does not receive a response within the time allotted for reply, then the inmate may consider the absence of a response to be a denial at that level. See id. A § 2241 petition is deemed unexhausted unless the inmate did not have his application either expressly or constructively denied by the General Counsel. Although 28 U.S.C. § 2241 contains no exhaustion requirement, "[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241." Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998); see also, Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). The United States Court of Appeals for the Third Circuit requires administrative exhaustion of a claim raised under § 2241 for three reasons: "([i]) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; ([ii]) permitting agencies to grant the relief requested conserves judicial resources; and ([iii]) providing agencies the opportunity to correct their own errors fosters administrative autonomy." Moscato v. Federal Bureau of Prisons, 98 F. 3d 757, 761-62 (3d Cir. 1996); see also Gambino, 134 F.3d at 171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988). Since, here, Petitioner's challenges other than those dismissed by this Court in 2005 (that is, if such challenges were intended) are so poorly fleshed out that the Court cannot discern them from the face of the instant application. Therefore, with respect to these hypothetically-possible challenges, the process of administrative exhaustion appears nothing short of indispensable. Consequently, if Petitioner administratively exhausts (or already exhausted) his non-speculative claims other than those dismissed by this Court in 2005 and other than those based on the Fairness in Cocaine Sentencing Act, the decision of Respondent denying such claims would be the very one that Petitioner would be able to challenge by the means of § 2241 petition.

b. However, since this particular decision of Respondent would present a determination qualitatively different from that addressed by this Court in 2005, Petitioner would be obligated -- pursuant to Habeas Rule 2(e) -- to submit a separate application challenging this particular determination. See Habeas Rule 2(e). Petitioner, ...


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