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McIntosh v. English

United States District Court, D. Kansas

May 16, 2017

CHARLES T. McINTOSH, Petitioner,
v.
NICOLE ENGLISH, Warden, USP-Leavenworth, and (FNU) WILSON, Unit Manager, USP-Leavenworth, Respondents.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         This 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.

         I. Factual Background[1]

         In 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.

         Petitioner 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.”[2] 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.

         On 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.

         The 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.

         On 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.

         II. Grounds and Requested Relief

         Petitioner alleges that the Bureau of Prisons (“BOP”) violated the SCA, as well as Petitioner's due process rights, [3] by adhering to an unconstitutional prison policy, practice or custom by providing him only 150 days[4] 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.

         III. Motion to Dismiss

         Respondents' 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 remedies.

         IV. Discussion

         1. ...


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