United States District Court, D. New Jersey
MICHAEL C. HEYWARD, Petitioner,
WARDEN FCI FAIRTON, Respondent.
B. KUGLER United States District Judge
about September 11, 2017, Petitioner, an inmate incarcerated
at FCI Fairton in New Jersey, filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2241 claiming that the
Bureau of Prisons (“BOP”) staff abused their
discretion under the Second Chance Act by granting him only a
seven-to-eight-month placement in a community corrections
center (“CCC”), also known as a residential
reentry center (“RRC”). (ECF No. 1 at p. 2).
Specifically, Petitioner argues that the BOP staff failed to
base the pre-release placement decision on Petitioner's
individual accomplishments and needs. (See Id. at
23, 2017, Petitioner was advised that his Unit Team had
recommended a seven-to-eight-month pre-release placement in a
RRC. (See id. at pp. 12, 56). On June 26, 2017,
Petitioner initiated grievance proceedings under the BOP
Administrative Remedy Program. (See ECF No. 1 at p.
2). Petitioner alleges that he has completed the informal
resolution request, appeal to the Warden, and appeal to the
Regional Director. (See id. at pp. 2-3). After
completion of the Regional Director level of appeal, the
Administrative Remedy Program includes a final appeal to the
General Counsel. Petitioner admits that he has not fully
exhausted his administrative remedies by appealing to the
General Counsel and requests that the Court grant him
“circumvention of the administrative remedy
process” as the process is fraudulent and ineffective.
(See id. at pp.10-16). United States Code Title 28,
Section 2243 provides in relevant part as follows:
A court, justice or judge entertaining an application for a
writ of habeas corpus shall forthwith award the writ or issue
an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application
that the applicant or person detained is not entitled
pro se pleading is held to less stringent standards
than more formal pleadings drafted by lawyers. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Haines v.
Kerner, 404 U.S. 519, 520 (1972). A pro
se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);
Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d
Cir. 1989); United States v. Brierley, 414 F.2d 552,
555 (3d Cir. 1969), cert. denied, 399 U.S. 912
(1970). Nevertheless, a federal district court can dismiss a
habeas corpus petition if it appears from the face of the
petition that the petitioner is not entitled to relief.
See Lonchar v. Thomas, 517 U.S. 314, 320 (1996);
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985),
cert. denied, 490 U.S. 1025 (1989); see
also 28 U.S.C. §§ 2243, 2255.
Second Chance Act modified the pre-release custody placement
statute by (1) doubling the pre-release placement period from
six to 12 months, (2) requiring the BOP to make CCC placement
decisions on an individual basis, and (3) requiring the BOP
to ensure that, consistent with the factors in 18 U.S.C.
§ 3621(b), the duration of the placement period gives
the inmate the greatest likelihood of successful community
reintegration. See 18 U.S.C. § 3624(c).
BOP's Administrative Remedy Program is a three-tier
process available to inmates confined in institutions
operated by the BOP 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. 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
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, e.g., 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: “(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.” 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).
exhaustion of administrative remedies is not required where
exhaustion would not promote these goals. See, e.g.,
Gambino, 134 F.3d at 171 (exhaustion not required where
petitioner demonstrates futility); Lyons, 840 F.2d
at 205 (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, No. 00-2958, 2000 WL 1022959, *2 (E.D. Pa.
2000) (exhaustion not required where delay would subject
petitioner to “irreparable injury”).
Petitioner admits that he did not fully exhaust
administrative remedies. He maintains, however, that he
should be excused from fully pursuing administrative relief
because the BOP staff has committed fraud and compromised the
administrative remedy process by altering documents and
rejecting his grievances. (See ECF No. 1 at pp.
11-12). Petitioner has not alleged any facts that would
permit this Court to find that exhaustion of his
administrative remedies would be futile or that requiring
exhaustion would subject Petitioner to “irreparable
injury.” Without a full administrative record regarding
the claim asserted here, this Court cannot determine whether
the decision was made in accordance with law. See,
e.g., Gamble v. Schultz, No. 09-3949, 2009 WL
2634874 (D.N.J. Aug. 24, 2009); Harrell v. Schultz,
No. 09-2532, 2009 WL 1586934 (D.N.J. June 2, 2009).
the face of the Petition establishes that Petitioner failed
to exhaust administrative remedies regarding his CCC
placement under the Second Chance Act and because Petitioner
has not shown that the failure to exhaust should be excused,
this Court will dismiss the Petition without prejudice for
failure to exhaust administrative remedies. The dismissal is
without prejudice to the filing of a new § 2241 petition
after Petitioner exhausts administrative relief. See
Lindsay v. Williamson, 271 Fed.Appx.. 158, 160 (3d Cir.
2008) (affirming summary dismissal of § 2241 petition
challenging BOP's execution of sentence ...