United States District Court, D. Kansas
CHARLES T. McINTOSH, Petitioner,
NICOLE ENGLISH, Warden, USP-Leavenworth, and (FNU) WILSON, Unit Manager, USP-Leavenworth, Respondents.
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
matter is a petition for writ of habeas corpus filed under 28
U.S.C. § 2241. At the time of filing, Petitioner was in
federal custody at USP-Leavenworth (“USPL”). On
March 13, 2017, Petitioner was released from USPL via a
furlough transfer to a Residential Reentry Center
(“RRC”), and has been housed at Rock Valley
Community Programs RRC, located in Janesville, Wisconsin,
since March 14, 2017. Petitioner proceeds pro se and
has paid the filing fee. The Court ordered Respondents to
show cause why the writ should not be granted. (Doc. 6.)
Respondents filed a Motion to Dismiss (Docs. 11, 12),
Petitioner has filed a Response (Doc. 15), and
Respondents' time for filing a reply has passed.
Petitioner has also filed a Motion to Produce Documents (Doc.
14), and a Supplemental Argument to Motion to Dismiss (Doc.
18). The Court grants the motion to dismiss, denies the
motion to produce documents, and dismisses the petition for
writ of habeas corpus.
September 2007, Petitioner was sentenced in the U.S. District
Court for the Eastern District of Wisconsin, and is currently
serving a 216-month term of incarceration with a ten-year
term of supervision for conspiring to distribute a controlled
substance in violation of 21 U.S.C. § 841(A)(1), §
841(B)(1)(A), and § 846. (Doc. 12-1, at 2, 9.)
Petitioner has a projected release date of June 4, 2017, via
good conduct time release. Id. at 8.
states that upon his arrival at USPL in 2016, he requested
placement in an RRC, commonly known as a halfway house, for
twelve months under the “amended Second Chance
Act.” He also alleges that an order from the
sentencing court directed the BOP to immediately begin the
process for Petitioner's timely release on December 13,
2016. While housed at USPL, Petitioner was reviewed for RRC
placement under the provisions of the Second Chance Act of
2007 (“SCA”) during Program Reviews conducted in
March and September of 2016. (Doc. 12-2, at 2, 6.) Based on
his September 2016 review, the Unit Team recommended that
approximately 151 to 180 days of pre-release RRC placement
was sufficient duration to assist Petitioner with his
re-entry needs, including search for employment and
reintegration into the community. Id. at 6. The Unit
Team noted Petitioner had no financial obligations and that,
while he abused alcohol and marijuana/hashish prior to
incarceration, he completed the 40-hour drug education course
and currently had no substance abuse treatment needs.
Id. Petitioner's referral recommendation was
contingent upon Petitioner's clear conduct, among other
factors. Id. Petitioner was approved for RRC
placement at Rock Valley Community Programs, located in
Janesville, Wisconsin on December 14, 2016, with a furlough
transfer to the RRC scheduled for December 13, 2016.
Id. at 8-9.
December 11, 2016, two days before Petitioner's scheduled
release date, Petitioner's new cellmate assaulted
Petitioner. Petitioner was charged with violating
Disciplinary Code 201, fighting with another person.
Id. at 11. Due to the close proximity to his RRC
placement date, Petitioner's RRC designation was removed
and he was placed in the Special Housing Unit
(“SHU”) that same day pending investigation of
the incident. Id. at 3.
next morning, Petitioner was informed that he would not be
released the next day and his phone was turned off.
Petitioner was unable to contact his family to let them know
he would not be released the next day. On January 4, 2017,
Petitioner was found responsible by the DHO for violating
Code 201, and sanctioned with the disallowance of twenty-one
days good conduct time, and the loss of commissary and email
privileges. Id. at 15. The DHO informed Petitioner
that she had nothing to do with Petitioner's phone being
turned off and she did not know why it was off. On January 5,
2017, Respondent Wilson came to Petitioner's cell and
informed him that his phone was turned off because Petitioner
was fighting. Wilson then stated that he was only placing
Petitioner in the halfway house for sixty days.
January 6, 2017, Petitioner was reconsidered for RRC
placement and recommended for a ninety-day placement.
Id. at 4, 13. This recommendation was approved, and
Petitioner reported to the Rock Valley Community Programs RRC
on March 14, 2017. Id. at 4.
Grounds and Requested Relief
alleges that the Bureau of Prisons (“BOP”)
violated the SCA, as well as Petitioner's due process
rights,  by adhering to an unconstitutional prison
policy, practice or custom by providing him only 150
at an RRC, and also by not abiding by current law and policy.
(Doc. 3, at 6-7.) Petitioner also alleges that BOP staff
violated his First Amendment rights and retaliated against
him for filing an administrative remedy by cutting off
Petitioner's telephone privileges, confining him in the
SHU, and taking away his RRC date. Id. at 8.
Petitioner asks the Court for immediate placement in an RRC,
and to reduce his term of supervised release from ten years
to five years. Id.
Motion to Dismiss
motion to dismiss (Docs. 11, 12) alleges that: 1) Nicole
English, Warden of USPL, is the only proper Respondent in
this habeas corpus action and Respondent Wilson, Unit Manager
at USPL, must be dismissed; 2) this action should be
dismissed as moot; and 3) this action should be dismissed
because Petitioner failed to exhaust his administrative