United States District Court, D. New Jersey
Jerrard A. Gonzalez BASTARRIKA, SOTO, GONZALEZ & SOMOHANO
LLP and Thomas E. Moseley LAW OFFICE OF TOM MOSELEY One
Gateway Center, Suite 2600 Newark, N.J. 07102-5397 Counsel
Caroline A. Sadlowski U.S. Attorney's Office and Jessica
Rose O'Neill U.S. Attorney's Office 401 Market
Street, 4th Floor Camden, N.J. 08101 Counsel for Respondents
L. HILLMAN, U.S.D.J.
Giuseppe Giudice files this writ of habeas corpus under 28
U.S.C. § 2241, to challenge the alleged failure of the
U.S. Bureau of Prisons to provide Petitioner with access to
the Residential Drug Abuse Program (“RDAP”) as
well as the inability of Petitioner to contest his removal
proceedings while incarcerated at the Federal Correctional
Institution at Fort Dix (“FCI Ft. Dix”).
See ECF No. 1. For the reasons discussed below,
Petitioner will be ordered to show cause why the Petition
should not be dismissed as moot or for failure to exhaust
October 2, 2014, Petitioner was sentenced to a forty-one
month (41) term of imprisonment with two years of supervised
release for various federal offenses including conspiracy to
commit mail and wire fraud; bankruptcy fraud-concealment;
false declarations; and failure to file tax returns.
Petitioner's sentence recommended that Petitioner
participate in an alcohol program. On March 25, 2016, the
Department of Homeland Security lodged a detainer on the
Petitioner for investigation for removal proceedings.
was initially incarcerated at the Federal Correctional
Institution at Fort Dix, in Fort Dix, New Jersey.
See ECF No. 1 at 1. According to Petitioner, the
Petitioner was unable to participate in the RDAP program at
FCI Ft. Dix because Petitioner has an ICE detainer.
Id. at 6. Petitioner also alleges that he was unable
to challenge the ICE detainer at FCI Ft. Dix, which does not
have the facilities for its inmates to appear before an
immigration judge. Id. at 7. Finally, Petitioner
alleges that he should not be denied entry to the RDAP
program because he is not an ICE detainee, and that even if
he were, he should still have access to the RDAP program.
Id. at 7-8. Petitioner has since been transferred to
the Federal Correctional Institution at Allenwood (“FCI
Allenwood”), in Allenwood, Pennsylvania.
argue that this Petition appears to be moot because the
Petitioner has been transferred to FCI Allenwood, which
provides inmates an opportunity to appear before an
immigration judge and also offers the RDAP program. ECF No. 4
at 6. In support of their argument, Respondents cite
Capozzi v. Bledsoe, 560 F. App'x 157, 159 (3d
Cir. 2014), in which the Court of Appeals for the Third
Circuit held that an inmate's transfer to a new unit
rendered moot the inmate's petition for writ of habeas
corpus requesting transfer out of the special management
unit, where the inmate was housed prior to his transfer. ECF
No. 4 at 7. The same sort of circumstances appear here:
Petitioner has already been transferred to a facility where
he may appear before an immigration judge and have access to
participation in the RDAP program.
also argue that, aside from the issue of mootness, the
Petition should be dismissed because Petitioner failed to
exhaust his administrative remedies as required for a
petition arising under 28 U.S.C. § 2241. Id. In
support of this argument, Respondents cite both Bradshaw
v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981), which
holds that a prisoner may not ordinarily seek habeas relief
until he has exhausted administrative remedies, and
Moscato v. Federal Bureau of Prisons, 98 F.3d 757,
761 (3d Cir. 1996), which holds that a failure to exhaust
prior to bringing a § 2241 petition constitutes a
procedural default and bars review on the merits. ECF No. 4
at 8. Here, Petitioner admits in the Petition that he has not
attempted to exhaust his administrative remedies.
See ECF No. 1 at 7.
these reasons, it appears that the Petition should be
dismissed. Indeed, counsel for Petitioner indicated that
Petitioner may choose to voluntarily dismiss the Petition by
letter dated January 5, 2018. ECF No. 10 at 1. Petitioner,
however, has failed to file either a request for voluntary
dismissal or a reply addressing the mootness and exhaustion
issues, despite being ordered to do so by January 18, 2018.
See ECF No. 11 (“Petitioner's reply shall
be filed on or before January 18, 2018.”).
dismissing the Petition as moot or unexhausted, the Court
will grant Petitioner fourteen (14) days in which to show
cause why the Petition should not be dismissed.
upon the foregoing, the Court will require Petitioner to show
cause why the Petition should not be dismissed as moot or