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Hardison v. English

United States District Court, D. Kansas

June 7, 2017

RICHARD M. HARDISON, Petitioner,
v.
NICOLE ENGLISH, Warden, Respondent.

          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. Petitioner, a prisoner in federal custody at USP-Leavenworth (“USPL”), proceeds pro se. Petitioner challenges his ineligibility to receive early release benefits for participation in the Residential Drug Abuse Program (“RDAP”) while incarcerated at USPL. The Court issued an Order to Show Cause, Respondent filed an Answer and Return (Doc. 10), and Petitioner filed a Traverse (Doc. 12). The Court ordered Respondent to supplement the Answer by May 2, 2017, and gave Petitioner until May 30, 2017, to file a supplemental Traverse. Respondent has filed the supplement to the Answer (Doc. 14), and Petitioner has filed a supplement to the Traverse (Doc. 16). The matter is fully briefed and ready for resolution. The Court finds that Petitioner does not allege facts establishing a federal constitutional violation and denies relief.

         I. Background

         Petitioner is currently incarcerated with the Federal Bureau of Prisons (“BOP”) at USPL. In 2014, Petitioner was convicted in the United States District Court for the Northern District of Georgia of being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and sentenced to 63 months in prison.[1] (Doc. 10-3, at 2.) Petitioner has a projected release date of November 27, 2017, via good conduct time. (Doc. 10-2, at 3.)

         On August 21, 2015, Designation and Sentence Computation Center (“DSCC”) legal staff completed an offense review for Petitioner and determined that Petitioner was precluded from receiving early release pursuant to 18 U.S.C. 3621(e) due to his current conviction for felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). (Doc. 10-1, at 6, Doc. 10-8, at 2-3.)

         On May 27, 2016, DSCC legal staff re-reviewed Petitioner's early release eligibility based on his May 2016 request, issued a superseding BP-942, and determined that Petitioner remained precluded based on his current offense. (Doc. 10-1, at 6-7, Doc. 10-9, at 2-3.)

         Petitioner alleges in his petition that his due process and equal protection rights are violated by the federal policy that prevents inmates with felon-in-possession convictions from being eligible for early release under the RDAP. Petitioner alleges that non-white inmates are being denied sentence reductions under 18 U.S.C. § 3621(e), while similarly situated white inmates are receiving the reduction. More specifically, Petitioner argues that A.F., a white inmate, received the reduction while Petitioner and other African American inmates were denied.

         II. Standards

         1. Exhaustion

         Generally, a federal prisoner must exhaust available administrative remedies before commencing a habeas corpus petition under 28 U.S.C. § 2241. Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). The BOP's four-part administrative remedy program is codified at 28 C.F.R. § 542. Respondent alleges that Petitioner failed to exhaust his administrative remedies regarding his early release eligibility under 18 U.S.C. § 3621(e), because he failed to appeal the Warden's denial of his request for a sentence reduction based on his completion of the RDAP.

         Although exhaustion of available administrative remedies is a prerequisite for § 2241 habeas relief, a narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion would be futile. Daybell v. Davis, 366 F.App'x. 960, 962 (10th Cir. 2010) (unpublished) (citing Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam); Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 235-36 (6th Cir. 2006)). Petitioner alleges that further attempts at exhaustion would have been futile in light of the DSCC's consistent practice of denying early release benefits to RDAP participants with felon in possession convictions. See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (recognizing “narrow exception to the exhaustion requirement” when “petitioner can demonstrate that exhaustion is futile”).

         The Court tends to agree that exhaustion would be futile considering the BOP's categorical denial, especially in light of the companion cases pending before this Court that were filed at the same time as Petitioner's. See Lewis v. English, Case No. 16-3218-JWL (filed November 2, 2016); Hicks v. English, Case No. 16-3221-JWL (filed November 3, 2017); cf. Garza, 596 F.3d at 1204 (finding exhaustion was not futile where BOP policy was not based on a categorical denial or where BOP had adopted new regulations to replace those previously invalidated). Petitioners in the companion cases, which involve the same issue as the current case, exhausted their administrative remedies and were denied relief. Thus, the BOP has had the opportunity to consider the application of its policy to the petitioners' claims. See Cushenberry v. Federal Medical Center, 530 F.Supp.2d 908, 911 (E.D. Ky. 2008) (finding that it would be a waste of time to exhaust because BOP's position is that persons convicted of offenses under § 922(g) are not eligible for early release); see also Martinez v. Davis, 393 F.App'x 570, 571 (10th Cir. 2010) (unpublished) (noting that pursuant to the Tenth Circuit's decision in Montez v. McKinna, 208 F.3d 862 (10th Cir. 2000), the Court may choose to address the merits without considering the issue of exhaustion).

         2. Standard of Review

         To obtain habeas corpus relief, an inmate must demonstrate that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

         III. ...


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