MADDOX v. FEDERAL BUREAU OF PRISONS, No. 1:2010cv00039 - Document 5 (D.N.J. 2010)
Court Description: OPINION. Signed by Judge Jerome B. Simandle on 7/12/2010. (TH, )
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MADDOX v. FEDERAL BUREAU OF PRISONS Doc. 5 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY DERRICK MADDOX, : Civil Action No. 10-0039 (JBS) Petitioner, : v. : DONNA ZICKEFOOSE, et al., Respondents. OPINION : : APPEARANCES: Petitioner pro se Derrick Maddox F.C.I. Fort Dix P.O. Box 2000 Fort Dix, NJ 08640 SIMANDLE, District Judge Petitioner Derrick Maddox, a prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey, has submitted an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 22411 and an application for leave to proceed in forma pauperis. 1 The respondents are Warden Donna Section 2241 provides in relevant part: (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. (c) The writ of habeas corpus shall not extend to a prisoner unless-- ... (3) He is in custody in violation of the Constitution or laws or treaties of the United States .... Dockets.Justia.com Zickefoose and the Federal Bureau of Prisons. Petitioner's initial petition had been filed in this docket and, due to numerous deficiencies, Petitioner was granted leave to amend his Petition by Opinion and Order filed January 13, 2010 [Docket Item 2]. This amendment is timely. Petitioner has requested that the $5.00 filing fee be assessed from his institutional account. Because it appears that Petitioner is not entitled to relief, the Petition will be dismissed. See 28 U.S.C. § 2243. I. A. BACKGROUND The Second Chance Act Residential Re-Entry Center ( RRC ) assignments are governed by 18 U.S.C. § 3624(c)(1), which was amended in 2007 by the Second Chance Act, Pub. L. No. 110-199, effective April 9, 2008. In essence, the Act extended the maximum amount of time that the Bureau of Prisons, in its discretion, may place an inmate in an RRC to twelve months. The Second Chance Act provides, in pertinent part: (1) In General.--The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility. (2) Home confinement authority.--The authority under this subsection may be used to place a prisoner in home 2 confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. ... (4) No limitations.--Nothing in this subsection shall be construed to limit or restrict the authority of the Director of the Bureau of Prisons under section 3621. ... (6) Issuance of regulations.--The Director of the Bureau of Prisons shall issue regulations pursuant to this subsection not later than 90 days after the date of the enactment of the Second Chance Act of 2007, which shall ensure that placement in a community correctional facility by the Bureau of Prisons is-(A) conducted in a manner consistent with section 3621(b) of this title; (B) determined on an individual basis; and (C) of sufficient duration to provide the greatest likelihood of successful reintegration into the community. 18 U.S.C. § 3624(c). As noted in the statute, the BOP was directed to issue regulations not later than 90 days after the date of the enactment of the Second Chance Act, to ensure that placement determinations would be conducted consistently with 18 U.S.C. § 3621(b), that the determinations would be individualized, and that the duration of placements would be sufficient. Section 3621(b) provides: (b) Place of imprisonment. The Bureau of Prisons shall designate the place of the prisoner s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by 3 the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering(1) (2) (3) (4) (5) the resources of the facility contemplated; the nature ad circumstances of the offense; the history and characteristics of the prisoner; any statement by the court that imposed the sentence - (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and any pertinent policy statement issued by the Sentencing Commission pursuant to Section 994(a)(2) title 28 ... . ... Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the Bureau under this section to determine or change the place of imprisonment. On April 14, 2008, the BOP issued a Memorandum for Chief Executive Officers, providing staff guidance for implementing the Second Chance Act. The memorandum indicated that the BOP s then-existing time frame on pre-release community confinement placement was no longer applicable and should not be followed, that certain adjustments were necessary to the Program Statement 7310.04, concerning review of inmates for pre-release RRC placement, and that each inmate s pre-release RRC decision must be analyzed and supported under the § 3621(b) factors, cited above. Among other guidelines, the memorandum provided: While the Act makes inmates eligible for a maximum of 12 months pre-release RRC placements, Bureau experience 4 reflects inmates pre-release RRC needs can usually be accommodated by a placement of six months or less. Should staff determine an inmate s pre-release RRC placement may require greater than six months, the Warden must obtain the Regional Director s written concurrence before submitting the placement to the Community Corrections Manager. BOP Memo, April 14, 2008, as cited in Strong v. Schultz, 559 F.Supp.2d 556, 562 (D.N.J. 2009). Subsequently, the BOP issued the required regulations, effective October 21, 2008, setting forth procedures for evaluating inmates placement decisions to RRCs or home detention. See 28 C.F.R. §§ 570.20-570.22. The regulations do not include the requirement in the April 14, 2008 memo for approval from the Regional Director for pre-release RRC placement beyond six months.2 2 Title 28 of the Code of Federal Regulations, section 570.22 states: Inmates will be considered for pre-release community confinement in a manner consistent with 18 U.S.C. section 3621(b), determined on an individual basis, and of sufficient duration to provide the greatest likelihood of successful reintegration into the community, within the timeframes set forth in this part. The time frames noted are set forth in section 570.21, which provides: (a) Community confinement. Inmates may b designated to community confinement as a condition of pre-release custody and programming during the final months of the inmate s term of imprisonment, not to exceed twelve months. (b) Home detention. Inmates may be designated to home detention as a condition of pre-release custody and programming during the final months of the inmate s term of imprisonment, not to exceed the shorter of ten percent of the inmate s term of imprisonment or six 5 B. Petitioner s Claims and Application of the Act 1. Factual Background of Petitioner s Case Petitioner is a federal prisoner serving an 84-month sentence imposed pursuant to his conviction of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). See United States v. Maddox, Crim. No. 04-6129 (W.D.N.Y.). Petitioner asserts that his case manager recommended that Petitioner be assigned six months pre-release placement in a Residential Re-entry Center ( RRC ), but that the request was denied on December 7, 2009.3 Petitioner then filed an Inmate Remedy requesting placement in home confinement, instead. Petitioner asserts the request for home confinement was denied on December 10, 2009, and that he received a copy of the denial on December 28, 2009. The denial is reflected on the Inmate Remedy form attached to the Petition, which states that months. (c) Exceeding time-frames. These time-frames may be exceeded when separate statutory authority allows greater periods of community confinement as a condition of pre-release custody. 28 C.F.R. § 570.21. 3 The Inmate Remedy form attached to the Petition, in which Petitioner requested home confinement instead of RRC placement, reflects that the RRC referral was denied by the proposed RRC Community Corrections Manager. 6 Home confinement is not practical as this would have been considered once in the halfway house. There will be no further consideration for home confinement placement. Petitioner asserts that on December 28, 2009, he requested an administrative remedy form from his Unit Manager, but that his Unit Manager gave him the wrong form. Petitioner asserts that he then drafted this Petition, which is dated December 30, 2009, and which was received by this Court on January 4, 2010. Petitioner alleges that the Unit Manager has denied him home confinement placement in retaliation for a civil action he filed alleging that an unidentified mail room staffer had improperly opened his legal mail. 08-3715 (D.N.J.). See Maddox v. United States, Civil No. Plaintiff also alleges he is not a public safety risk. Plaintiff asks this Court to order the Bureau of Prisons to reconsider him for RRC or home confinement placement. II. STANDARDS FOR A SUA SPONTE DISMISSAL 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 thereto. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. 7 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. III. ANALYSIS 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) 8 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 ). In general, the BOP Administrative Remedy Program is a multi-tier process that is available to inmates confined in institutions operated by the BOP for review of an issue which relates to any aspect of their confinement. 4 § 542.10. 28 C.F.R. An inmate must initially attempt to informally resolve 4 This rule does not require the inmate to file under the Administrative Remedy Program before filing under statutorilymandated procedures for tort claims (see 28 CFR 543, subpart C), Inmate Accident Compensation claims(28 CFR 301), and Freedom of Information Act or Privacy Act requests (28 CFR 513, subpart D),[ or other statutorily-mandated administrative procedures]. 67 F.R. 50804-01, 2002 WL 1789480 (August 6, 2002). 9 the issue with institutional staff. 28 C.F.R. § 542.13(a). If informal resolution fails or is waived, an inmate may submit a BP-9 Request to the institution staff member designated to receive such Requests (ordinarily a correctional counsel) within 20 days of the date on which the basis for the Request occurred, or within any extension permitted. 28 C.F.R. § 542.14. An inmate who is dissatisfied with the Warden s response to his BP-9 Request may submit a BP-10 Appeal to the Regional Director of the BOP within 20 days of the date the Warden signed the response. 28 C.F.R. § 542.15(a). The inmate may appeal to the BOP s General Counsel on a BP-11 form within 30 days of the day the Regional Director signed the response.5 Id. Appeal to the General Counsel is the final administrative appeal. 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. Here, Petitioner asserts that this Court should excuse the failure to exhaust administrative remedies because his Unit Manager gave him the wrong form on December 28, 2009, two days before he submitted this Petition. 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 5 Response times for each level of review are set forth in 28 C.F.R. § 542.18. 10 Petitioner to irreparable injury. Petitioner received a prompt response to his first administrative remedy request. He has alleged no facts explaining why he did not point out to his Unit Manager his error with the forms and request the proper form. Moreover, by characterizing the process as futile, Petitioner presupposes that his grievance will be denied. Notably, this is precisely the type of situation in which a federal agency should be given the first opportunity to review its decisions and create a comprehensive administrative record regarding the reasons for its pre-release decisions. 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). IV. CONCLUSION For the reasons set forth above, the Petition will be dismissed without prejudice for failure to exhaust administrative remedies. An appropriate order follows. s/ Jerome B. Simandle Jerome B. Simandle United States District Judge Dated: July 12, 2010 11
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