United States District Court, D. Kansas
February 26, 2015
BRIAN HANSEN, Petitioner,
CLAUDE MAYE, Warden, United States Penitentiary, Leavenworth, Kansas, et al., Respondents.
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary, Leavenworth, Kansas (USPL). Mr. Hansen seeks an order requiring reconsideration of the decision of prison officials to place him in a Residential Reentry Center (RRC) for 6 instead of 9 or 12 months. Having examined the petition and attachments together with the relevant legal authority, the court finds that this action is subject to dismissal because it is deficient in several ways. Petitioner is given time to cure the deficiencies and warned that this action will be dismissed if he fails to comply.
As the background for his petition, Mr. Hansen alleges the following. In 2004, he was convicted in the United States District Court for the Southern District of California of federal offenses including importation of marijuana and bank robbery and sentenced to "a total aggregated term of 157 months" in prison. He is serving this federal sentence and currently has a projected release date with good time credit of September 9, 2015.
On January 9, 2014, Mr. Hansen "initiated this process" when he made a written request to Mr. Johnson, his Unit Team Manager, that he be considered for RRC placement for a period of 12 months. This was 18 months prior to his projected release date. USPL officials "refused his request." In July 2014 during his "program review" Hansen "again requested consideration for RRC placement." His case manager Mr. Toot informed him that he "would not submit the request until September" and that Hansen "was second on the list to be put in for halfway house.'" On September 18, 2014, Toot "finally submitted Hansen for consideration of RRC placement." This date was "approximately less than 12 months before his release date." He was submitted for "6 months RRC placement" only. Hansen "address(ed) these issues with his unit team, counselor, and Unit Manager Mr. Johnson" but "was rejected."
Petitioner claims that "pursuant to the Second Chance Act of 2007 (SCA) codified at 18 U.S.C. § 3624, " prisoners are supposed "to be automatically reviewed for RRC placement 17-19 months before their projected release date." He then alleges that Bureau of Prisons (BOP) staff at the USPL "refused to comply with" the "directives" in the SCA "to automatically' initiate this process" 17 to 19 months in advance of his projected release date. He also claims that BOP staff at the USPL "failed to consider the five factors enumerated in § 3621(b)." In addition, he claims that the SCA "amended the statute to provide for the current eligibility time frame of twelve months" and takes issue with the decision to allow his RRC placement for only 6 months rather than the 9 to 12 months he requested and claims to need.
Petitioner seeks a court order directing BOP officials at the USPL to "conduct the individualized review of his application for transfer to a Residential Re-Entry Center (RRC) required by law, " to consider the five factors enumerated in 18 U.S.C. § 3621(b), and to "re-submit his request of 9-12 months" RRC placement.
PETITION NOT ON FORMS
Local court rule requires that habeas corpus applications be submitted upon court-approved forms. Petitioner has not utilized these forms. Instead, he has filed a memorandum that contains many unnecessary legal arguments and citations and not enough of the necessary facts describing the administrative process that took place in his particular case. Mr. Hansen is required to submit his application upon the proper forms. If he fails to comply within the prescribed time, this action may be dismissed without further notice.
FILING FEE NOT SATISFIED
The statutory fee for filing a federal habeas corpus petition is $5.00. Mr. Hansen has neither paid the fee nor submitted a motion to proceed in forma pauperis (IFP). This action may not proceed until the filing fee prerequisite is satisfied in one of these two ways. A prisoner seeking to proceed IFP must submit a proper motion upon court-approved forms containing an affidavit that includes a statement of the prisoner's assets. 28 U.S.C. § 1915(a)(1). In addition, the prisoner must submit a certified accounting of the funds available to him in his institutional account. D.Kan.Rule 9.1(g); see also Rule 3(a)(2) of the Rules Governing Section 2254 Cases in the United States District Courts (hereinafter "2254 Rules") (habeas petition must be accompanied by "a motion for leave to proceed in forma pauperis, the affidavit required by 28 U.S.C. § 1915, and a certificate from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution"). The clerk shall send the proper forms to Mr. Hansen. If he does not satisfy the filing fee within the prescribed time, this action may be dismissed without further notice.
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
This action is subject to dismissal because petitioner has not exhausted the available BOP administrative remedies. Even though § 2241 itself does not contain an express exhaustion requirement, the Tenth Circuit Court of Appeals and this court have repeatedly held that exhaustion of administrative remedies is a prerequisite for § 2241 habeas relief. Garza v. Davis, 596 F.3d 1198 (10th Cir. 2010); Samples v. Wiley, 349 Fed.Appx. 267, 269 (10th Cir. 2009); see also Ciocchetti v. Wiley, 358 Fed.Appx. 20, 23-24 (10th Cir. 2009); Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004)(citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2nd Cir. 2001); Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir. 1981)). Petitioner's contrary arguments based on citations that are not controlling in this Circuit do not convince the court otherwise. Administrative exhaustion is generally required for three valid reasons, not just one: (1) to allow the agency to develop a factual record and apply its expertise, which facilitates judicial review; (2) to permit the agency to grant the relief requested, which conserves judicial resources; and (3) to provide the agency the opportunity to correct its own errors, which "fosters administrative autonomy." See Moscato v. Federal BOP, 98 F.3d 757, 761-62 (3rd Cir. 1996); Marine Mammal Conservancy, Inc., v. Dep't of Agric, 134 F.3d 409, 414 (D.C.Cir. 1998). In order to have fully exhausted, the petitioner must have raised claims on administrative appeal that are identical to those he now presents in this federal habeas corpus petition.
There are "limited exceptions" to the exhaustion prerequisite, including "a narrow futility exception, " which the Tenth Circuit has "recognized in the context of petitions brought under 28 U.S.C. § 2254;" and "other circuits have recognized in the context of petitions brought under § 2241." See Ciocchetti, 358 Fed.Appx. at 24 (citing see Fairchild v. Workman, 579 F.3d 1134, 1155 (10th Cir. 2009); see e.g., Fazzini v. Northeast Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2006)). However, such exceptions "apply only in extraordinary circumstances, ' and [petitioner] bears the burden of demonstrating the futility of administrative review." See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994)(citations omitted).
Mr. Hansen admits that he has not fully exhausted administrative remedies. He generally argues that exhaustion in habeas corpus cases is not a statutory or jurisdictional prerequisite and may be waived by the court. He contends that exhaustion should be waived in this particular case because his pursuit of administrative remedies "would be futile and irreparable injury would result." In support of these arguments, he alleges that BOP officials at the USPL "believe they are complying with national policy"; he seeks 9 to 12 months of RRC placement when he only has 12 months left before his projected release date; the BOP "administrative remedy process takes 6 months to complete" and he "is expected to be released before completion of the administrative process."
Petitioner's statement that the BOP officials at the USPL believe they are following national policy does not prove futility. Relevant BOP memoranda "clearly indicate" that "the BOP recognizes its authority to place inmates in RRCs... for periods of time exceeding six months" and plainly "instruct BOP staff to individually consider each request for a transfer based on the factors set forth in § 3621(b)." Ciocchetti, 358 Fed.Appx. at 24; see 28 C.F.R. § 570.21(a), § 570.22. The BOP memoranda "do not reflect any policy of categorical denial." Garza v. Davis, 596 F.3d 1198, 1204 (10th Cir. 2010). Petitioner has not alleged any facts to suggest that appropriate BOP policies were not followed in determining his RRC placement term, or that the BOP would not have followed the statutes and proper policies in deciding any administrative appeal.
Exhaustion of administrative remedies is not rendered futile simply because a federal prisoner anticipates that he will be released to an RRC before he will have completed an administrative appeal from the decision as to his RRC placement. See Samples v. Wiley, 349 Fed.Appx. 267, 269 (10th Cir. 2009)(Futility argument not supported by contention that administrative process is too slow and it was unlikely the BOP procedure would be completed by the date on which petitioner would have needed to be transferred to an RRC in order to receive a twelve-month RRC placement). The Supreme Court has required even those inmates who may be entitled to immediate release to exhaust their administrative remedies. Preiser v. Rodriguez, 411 U.S. 475, 494-95 (1973). Given the time limits for responses in the BOP regulations, petitioner's statement that the review process may take six months appears to be pure speculation and is not supported by any facts. Had Mr. Hansen continued to pursue his administrative remedies at the appropriate time, he might have either "achieved a result in his favor or otherwise obtained a final determination concerning his RRC-placement request." See Samples, 349 Fed.Appx. at 269. Petitioner's "decision to put off engaging the BOP administrative process, and any delay or alleged futility that decision" may have "created, does not excuse his failure to exhaust." Id. at 270.
Petitioner does not explain why federal court is a better place to seek the reconsideration and longer RRC placement he desires than the agency review process. The administrative remedy process is a "particularly well-suited vehicle" by which he could have requested more expeditious consideration of his requests or reconsideration of his RRC placement for 6 months. By contrast, this court proceeding "is particularly ill-suited to make such a determination, given that the Court lacks the expertise possessed by the BOP in evaluating the § 3621(b) factors." See Waldroop v. Scibana, 2008 WL 1944801, *3 (W.D. Okla. 2008). The only things suggested by the sparse record presented by petitioner in this case are that USPL officials considered him for RRC placement and granted RRC placement for 6 months rather than the 9 to 12 months he sought. To the extent that petitioner believed USPL officials unreasonably delayed consideration of his initial request, or improperly exercised their discretion without considering all the requisite factors, he was free to invoke the administrative remedies available to him to obtain review of those claims, and that process would have generated a record susceptible to review. Id.
FAILURE TO STATE CLAIM FOR RELIEF UNDER § 2241
In addition, the court finds that Mr. Hansen has failed to state facts to support a claim for relief under 28 U.S.C. § 2241. 28 U.S.C. § 2241(c)(3) pertinently provides: "The writ of habeas corpus shall not extend to a prisoner unless... he is in custody in violation of the Constitution or laws or treaties of the United States." "Habeas corpus petitions must meet heightened pleading requirements, " and "federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856 (1994); Rule 2(c), 2254 Rules. Under Rule 2(c), "a petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified." Adams v. Armontrout, 807 F.2d 332, 334 (8th Cir. 1990). "These facts must consist of sufficient detail to enable the court to determine, from the face of the petition alone, whether the petition merits further habeas corpus review." Id.
Petitioner's claim that the BOP did not consider his application for placement on an individualized basis using the five factors in 18 U.S.C. § 3621(b) is completely conclusory. He does not summarize the substance or provide an exhibit of any agency decision made in his case, including that in response to his initial written request, that which resulted from any progress review at which his RRC placement was considered, or that which granted and notified him of his 6-month placement. Thus, Mr. Hansen fails to allege any facts whatsoever to support his claim that his Second Chance Act Consideration submitted on September 18, 2014, was decided without consideration of the requisite statutory factors or otherwise violated federal statutory or constitutional law.
The only exhibit provided by petitioner relating to his RRC placement is his written request, which included his laudable history of class and program participation during his confinement. His hard work and pursuit of education and training through such programs will hopefully assist Mr. Hansen in his reentry efforts. He also wrote that he has been confined for many years, needs time to locate employment and obtain a driver's license,  needs a job to pay living expenses, has to start from scratch to obtain clothes and tools, has no family, and is unfamiliar with the area in which he will be released. However, these circumstances are not shown to be unusual for one being released from a federal prison, and no facts are presented demonstrating that Mr. Hansen's personal situation presents a "peculiar urgency." In any event, the "history and characteristics of the prisoner" is but one of five factors to be considered under § 3621(b).
Petitioner's bare claim that the SCA "amended the statute to provide for the current eligibility time frame of twelve months" presented with his allegation that BOP officials at the USPL "rejected (his) request for consideration of 9-12 months RRC placement" evinces no federal constitutional or statutory violation during the consideration of his case or in the decision itself. The BOP is vested with broad authority to determine the length of a prisoner's placement in an RRC. See 18 U.S.C. § 3624(c). Under § 3621(b), the BOP has broad discretion to designate any appropriate and suitable place for the prisoner's confinement, after considering the statutory factors. Id. Nothing in the SCA indicates a Congressional intent to impose any limitations or restrictions upon the BOP's authority in making decisions with regard to RRC placement. Furthermore, the twelve-month mark in the Second Chance Act is an express statutory maximum and not a mandated minimum. See 18 U.S.C. § 3624(c)(1). Section 3624(c) "does not entitle prisoners to a twelve-month placement in an RRC." Atkins, 816 F.supp.2d at 1116. Thus, petitioner does not show that the six-month placement decision in his case was outside the statutory authority or accepted agency policy.
Petitioner's claim that the process to decide his RRC placement was not "automatically" initiated 17 to 19 months in advance of his projected release date" is somewhat called into question by his own allegations. Mr. Hansen alleges and shows that he first requested RRC placement on January 9, 2014. While he states that this was 18 months before his projected release date; January 9, 2014, was 20 months before that date. Thus, Mr. Hansen "initiated" his own RRC-placement process a month before the start of the two-month time period during which he claims it must have been automatically initiated by USPL officials. He does not provide any different date on which USPL officials later "initiated the process" and explain how that date violated the relevant statutes and regulations or resulted in any actual prejudice. The September 2014 date on which USPL officials actually forwarded their request for his six-month placement in an RRC can surely not be the date on which consideration of his correct placement was "initiated."
Even if petitioner presented sufficient facts to show that USPL officials failed to consider him for RRC placement in a timely manner and failed to consider the statutory factors, these are precisely the types of actions that must be presented in the first instance to the agency by way of the administrative review process.
For the reasons stated above, the court finds that this petition should be dismissed for failure to exhaust administrative remedies and failure to state sufficient facts to support a claim under § 2241. Petitioner is given twenty (20) in which to show good cause why this action should not be dismissed for failure to exhaust and for failure to state a claim under § 2241.
IT IS THEREFORE BY THE COURT ORDERED that petitioner is granted twenty (20) days in which to submit his petition upon court-approved forms and to satisfy the statutory filing fee by either paying the fee of $5.00 or submitting a properly completed and supported motion for leave to proceed in forma pauperis on court-approved forms.
IT IS FURTHER ORDERED that within the same twenty-day period petitioner is required to show good cause why this action should not be dismissed for failure to exhaust administrative remedies and failure to state a claim entitling him to relief.
The clerk is directed to send petitioner IFP and § 2241 forms and to send a copy of this Memorandum and Order to petitioner and to the Court of Appeals for the Tenth Circuit.
IT IS SO ORDERED.