Keslinke v. Salazar, No. 3:2018cv01684 - Document 11 (D. Or. 2019)
Court Description: OPINION AND ORDER: The Court DENIES the Petition for Writ of Habeas Corpus 1 and DISMISSES this action. (See 6-page opinion and order for more information.) Signed on 1/16/19 by Judge Anna J. Brown. (Mailed order to petitioner) (dsg)
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Keslinke v. Salazar Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ANTHONY G. KESLINKE, Civil No. 3:18-cv-01684-BR Petitioner, OPINION AND ORDER v. JOSIAS SALAZAR, Warden, Sheridan - Federal Prison Camp, Respondent. ANTHONY G. KESLINKE 19491-111 Sheridan - Federal Prison Camp Inmate Mail/Parcels P.O. Box 6000 Sheridan, OR 97378 Petitioner Pro Se BILLY J. WILLIAMS United States Attorney JARED HAGER Assistant United States Attorney 1000 SW Third Avenue Suite 600 Portland, OR 97204 1 - OPINION AND ORDER - Dockets.Justia.com BROWN, Senior Judge. Petitioner, an inmate at FPC Sheridan, corpus action pursuant to 28 U.S.C. § 2241. follow, brings this habeas For the reasons that the Court DENIES the Petition for Writ of Habeas Corpus (ECF No. 1) . BACKGROUND Petitioner was convicted in the United States District Court for the Northern District of California on charges of Conspiracy to Commit Bank Fraud and Conspiracy to Launder Monetary Instruments, and was sentenced to 48 months of imprisonment and three years of post-prison supervised release. ("BOP") Reentry The Federal Bureau of Prisons approved Petitioner for early release to a Residential Center ( "RRC") for 126 Petitioner days. additional six weeks for a total of 179 days. wants an Petitioner alleges the BOP violated his due process and equal protection rights by refusing to allow the additional six weeks of placement at a RRC. Respondent contends Petitioner is not entitled to habeas corpus relief because Petitioner failed to exhaust his available administrative remedies, because this Court lacks subject matter jurisdiction to review the BOP's RRC placement decisions under 18 U.S.C. § 3625, and because, in any event, the BOP did not violate Petitioner's due process or equal protection rights. Although he was given the opportunity to do so, Petitioner did not file a reply brief addressing Respondent's arguments. 2 - OPINION AND ORDER - LEGAL STANDARDS Under 28 U.S.C. relief when a § 2241, petitioner a district court may grant habeas "is in custody in violation Constitution or laws or treaties of the United States." § 2241 (c) (3). of the 28 U.S.C. "A necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination by the federal court that [his] custody violates treaties of the United States." (1975) the Constitution, Rose v. Hodges, laws, or 423 U.S. 19, 21 (citing 28 U.S.C. § 2241). DISCUSSION I. Exhaustion of Administrative Remedies A federal prisoner bringing a§ 2241 claim to challenge the execution of his sentence must first exhaust his administrative remedies. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). "As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under 28 U.S.C. § 2241." 1042, 1045 (9th Cir. 2012) Ward v. Chavez, (citations omitted). Exhaustion under § 2241 is not, however, a jurisdictional requisite. The exhaustion requirement may be 678 F.3d Id. waived when pursuit of administrative remedies would be futile. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993). Exhaustion has been held to be futile when the request for relief was denied based on an official policy or when administrative remedies are inadequate or 3 - OPINION AND ORDER - ineffective, injury irreparable result, would See, administrative proceedings would be void. or e.g., when Ward, 678 F.3d at 1045-46; Laing v. Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2 0 04) . contends Respondent administrative remedies Petitioner because administrative appeal process. he did has exhaust his completed the not not Petitioner concedes he did not exhaust his administrative remedies before filing his Petition, but alleges that exhaustion would be Respondent counters that futile exhaustion is and should be waived. not futile because the highest reviewing official clearly would not be precluded by policy from reviewing and reversing the decisions Regional Direct to deny additional RRC time. of the Warden and This Court agrees. Notwithstanding Petitioner's failure to exhaust, however, in the interest of justice the Court addresses Petitioner's claims on the merits. II. Review of the BOP Decision In 18 U.S.C. § 3625, Congress barred federal courts from reviewing the BOP's individualized decision to designate an inmate for RRC placement. See 18 U.S.C. § 3625; Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). In Reeb, the Ninth Circuit explained the effect of§ 3625: There is no ambiguity in the meaning of 18 U.S.C. § 3625. The plain language of this statute specifies that the judicial review provisions of the APA, 5 U.S.C. §§ 701706, do not apply to "any determination, decision, or 4 - OPINION AND ORDER - order" made pursuant to 18 U.S.C. §§ 3621-3624. Accordingly, any substantive decision by the BOP to admit a particular prisoner into RDAP, or to grant or deny a sentence reduction for completion of the program, is not reviewable by the district court. Reeb, 636 F.3d at 1227 The BOP's decision to (emphasis added). approve Petitioner for less time in a RRC than Petitioner sought is a decision pursuant to 18 U.S.C. § 3621(b) and 18 U.S.C. § 3624(c), and, accordingly, is not subject to judicial review. In any event, Petitioner has no due process right to early release or placement See Ingram v. sentence. 1791234, at *4 U.S. of Neb. Finally, RRC prior to Thomas, Reeb, 636 Penal Corr. Petitioner offers F.3d at expiration of his (citing Meachum v. Fano, 427 1229, Complex, no the Case No. CV 10-0320-MA, 2011 WL (D. Or. May 10, 2011) (1976); 215 Inmates in a factual 442 n. 4. ' U.S. support Greenhol tz v. 1, for 7 (1979)). his equal protection claim, i.e., that he was denied a longer placement in a RRC because of intentional discrimination based on Petitioner's membership in a protected class, or that he was treated differently than similarly situated individuals and there was no rational basis for doing so. See Marigny v. Ives, Case No. 3:16-cv-01921-PK, 2017 WL 1423949, at *3 (D. Or. Jan. 17, 2017) (citing Reeb, 636 F.3d at 1224, n.4; N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 1429191 2008)), report and recommendation adopted by 2017 WL (D. Or. Apr. 20, 2017). entitled to habeas corpus relief. 5 - OPINION AND ORDER - Accordingly, Petitioner is not CONCLUSION For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus (ECF No. 1) and DISMISSES this action. IT IS SO ORDERED. DATED this day of January, 2019. United States Senior District Judge 6 - OPINION AND ORDER -
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