United States District Court, D. Kansas
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 ...