United States District Court, D. Kansas
HENRY L. IVY, JR., Petitioner,
STEVEN HARMON, Jailer, Respondent.
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner, currently in parole revocation
proceedings, challenges the legality of the United States
Parole Commission (“USPC”) warrant authorizing
his detention. Petitioner claims that he was sentenced to a
term of supervised release, not special parole, and that the
USPC has erroneously asserted jurisdiction over a
non-existent special parole term. Petitioner has been in
custody under the authority of the USPC warrant since around
August 4, 2017.
January 10, 2018, the Court entered an Order (Doc. 14)
finding that further briefing was needed to develop the
record to determine whether Petitioner has exhausted
available administrative remedies. The Court set a schedule
for the parties to brief the issue of exhaustion. The issue
has been fully briefed (Docs. 16, 20 and 21), and the Court
finds that the Petition should not be dismissed for failure
to exhaust and the matter is ready for final briefing on the
brief sets forth the following reasons why exhaustion should
not be required in this case: (1) the Administrative
Procedure Act (“APA”) prohibits imposing a
judicially created exhaustion requirement where the
administrative remedy is merely optional and fails to include
a stay provision; (2) the remedy process would require an
indeterminate and unreasonable amount of time; (3) the agency
administering the remedy lacks expertise in the issues raised
in the habeas petition; and (4) the issues raised in the
petition are outside the scope of the administrative remedy,
so exhausting the remedy would be futile. See Darby v.
Cisneros, 509 U.S. 137, 146-47, 154 (1993) (finding that
§ 704 of the APA requires only the exhaustion of
mandatory, not optional, remedies, and where the APA applies
“an appeal to ‘superior agency authority' is
a prerequisite to judicial review only when
expressly required by statute or when an agency rule requires
appeal before review and the administrative action is made
inoperative pending that review”) (emphasis in
original); and 28 C.F.R. § 2.26 (regulation providing
that a “prisoner or parolee may submit to the
National Appeals Board a written appeal of any decision . .
.”) (emphasis added).
argues that if the Court decides that exhaustion is required,
Petitioner should remain at the Leavenworth Detention Center
(“LDC”) and his claims be held in abeyance until
the claims are exhausted. Petitioner notes that he has
already been transferred once after having counsel appointed
to represent him. The Petition was originally filed on July
7, 2017, in the United States District Court for the Western
District of Kentucky, and because Petitioner was subsequently
transferred to LDC, the case was transferred to this Court on
January 8, 2018. The transfer required the appointment of new
counsel. Petitioner asks the Court to order that Petitioner
not be transferred out of the district until his habeas
petition is ruled on.
has filed a Response (Doc. 20), arguing that the Petition
should be dismissed on the merits. Respondent argues that
despite the warrant's reference to “special parole,
” the USPC's jurisdiction arises from Petitioner
having been released on mandatory release under 18 U.S.C.
§ 4163, and the mandate of that section that he be
supervised “as if on parole” until the expiration
of his sentence. The Response does not address the issue of
exhaustion. Petitioner's Reply (Doc. 21) argues that
Respondent has waived the exhaustion defense, and then
addresses the merits of the Petition.
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). However, under
narrow circumstances, exhaustion may be excused where it
would be futile. See e.g. Fairchild v. Workman, 579
F.3d 1134, 1155 (10th Cir. 2009) (discussing futility
exception in context of habeas corpus action filed under 28
U.S.C. § 2254) and Fazzini v Northeast Ohio Corr.
Ctr., 473 F.3d 229, 235-36 (6th Cir. 2006) (recognizing
failure to exhaust in § 2241 cases may be excused based
on futility or where inadequate, and noting that §
2241's exhaustion requirement, in contrast to the PLRA,
is not statutorily required).
on the reasoning set forth in Petitioner's brief at Doc.
16, as well as Respondent's failure to dispute that
reasoning, the Court finds that the Petition should not be
dismissed for failure to exhaust. See Tyson v.
Jeffers, 115 F. App'x 34, 39 (10th Cir. 2004)
(unpublished) (“This exhaustion requirement is not in
the text of § 2241; it is a prudential requirement
imposed by the courts, and may therefore be waived.”);
Pool v. Streeval, Case No. 16-3148-JWL, 2016 WL
6083712, at *3 (D. Kan. Oct. 18, 2016) (“Respondent
does not challenge petitioner's exhaustion of remedies,
and the Court is persuaded that any additional effort to seek
administrative review by the Commission would be futile);
see also D. Kan. Rule 7.4(b) (court may consider and
decide a motion as uncontested when there is a failure to
file a response within the requisite time frame).
the parties' briefs address the underlying merits of
Petitioner's § 2241 petition, the Court will allow
the parties an opportunity to submit any additional briefing
on the merits. The parties should notify the Court if they do
not intend to submit additional briefing. Accordingly,
IT IS THEREFORE ORDERED BY THE COURT that
Respondent is hereby given additional time up to and
including April 6, 2018, to providing any
additional briefing as to why the writ should not be granted;
and that Petitioner is granted until April 26,
2018, to file a traverse thereto.