January 7, 2014
FRANCISCO RIVERA NAVARRO, Petitioner,
J.T. SHARTLE, Respondent.
MEMORANDUM OPINION AND ORDER
RENÉE MARIE BUMB, District Judge.
This matter comes before the Court upon Petitioner's submission of a habeas corpus petition, executed pursuant to 28 U.S.C. §2241, and the applicable filing fee of $5.00. See Docket Entry No. 1 and Docket Entry dated Dec. 23, 2013.
Petitioner, a federal inmate currently confined at the FCI Fairton, Fairton, New Jersey, is scheduled to be released on December 3, 2014. See http://www.bop.gov/Locate; see also Docket Entry No. 1, at 1. Petitioner asserts that his preliminary evaluation for transfer to a community correctional center ("CCC") resulted in a preliminary recommendation for a transfer nine-to-six months prior to his release. See Docket Entry No. 1, at 2. Petitioner appealed that preliminary recommendation to his warden and then to the Regional Office of the Bureau of Prisons ("BOP"). Shortly thereafter, for the reasons not entirely clear to this Court, Petitioner "submitted a letter... to [S]enator [Charles E.] Schumer, " which expressed Petitioner's displeasure with not being placed in a CCC for a full year. See id. at 2-4. Meanwhile, Petitioner's final evaluation (for transfer to a CCC) took place; it resulted in an administrative decision to transfer him to a CCC six-to-five months prior to his release. See id. at 3-5 (indicating Petitioner's opinion that the final determination had to be retaliatory). Around that time, Senator Schumer forwarded Petitioner's letter to his warden. See id. at 11. The warden's response indicated that the final determination was made under the statute, which directed consideration of the inmate's "individual needs, community resources, institutional adjustment, [his] length of sentence, history and characteristics... and the need to provide for the safety and security of the general public." Id . Petitioner's hand-written notation made on the warden's response to Senator Schumer indicated Petitioner's displeasure that the preliminary recommendation (as to the transfer to a CCC nine-to-six months prior to his release) was not included in the warden's response. See id. No statement in Petitioner's submission indicated that he duly exhausted his administrative remedies with regard to the final determination he is challenging here.
Moreover, no statement in Petitioner's submission suggested that the BOP failed to duly consider the applicable factors set forth in § 3621(b). Rather, he merely asserted his displeasure with the fact that the final determination yielded a result different and less palatable than the preliminary recommendation.
Correspondingly, at this juncture, Petitioner failed to state a viable claim. Section 2241 of Title 28 of the United States Code provides 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." Petitioner's displeasure cannot qualify as a "violation of the (Central Office) is the final administrative appeal. See id. If responses are not received by the inmate within the time allotted for reply, "the inmate may consider the absence of a response to be a denial at that level." 28 C.F.R. § 542.18 Constitution or laws or treaties of the United States." Thus, as drafted, Petitioner's submission should be dismissed either as unexhausted or as meritless.
However, mindful of Petitioner's pro se status, the Court finds a conclusive dismissal unwarranted at this juncture since the Court cannot rule out that Petitioner, if granted leave to amend, might submit a pleading detailing both the legal wrong underlying his challenges and verifying that they have been duly exhausted administratively.
IT IS, therefore, on this 7th day of January 2014,
ORDERED that the Petition is dismissed; and it is further
ORDERED that the Clerk shall administratively terminate this matter by making a new and separate entry on the docket reading, "CIVIL CASE TERMINATED"; and it is further
ORDERED that administrative termination is not a conclusive dismissal, and Petitioner may have this matter reopened in the event he submits, within thirty days from the date of entry of this Memorandum Opinion and Order, Petitioner's amended pleading detailing: (a) the legal wrongs Respondent allegedly committed in reaching the final determination as to Petitioner's placement in a CCC; and (b) Petitioner's proper exhaustion of his challenges to that final determination; and it is further
ORDERED that this Court retains jurisdiction over this matter for the period of 180 days; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion and Order upon Petitioner by regular U.S. mail and enclose in said mailing a blank § 2241 habeas petition form.