Opinion
99 Civ. 3621 (JGK)
MAY 25, 2000
OPINION AND ORDER
The petitioner, Victor Quinn, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner seeks an order requiring the Bureau of Prisons ("BOP") to transfer him to the custody of the Iowa Department of Corrections. For the reasons explained below, the petition is dismissed.
I.
There is no dispute with respect to the following facts except where noted. On June 6, 1995, the petitioner was charged in a two-count indictment in the United States District Court for the Northern District of Iowa with possession with intent to distribute cocaine base by a prior drug felon in violation of 21 U.S.C. § 841 (a)(1) (b)(1)(B), and with being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g) (1) 924(a)(2). (See Petition ¶ 4; Decl. of Delbert Sauers dated Jan. 11, 2000 ("Sauers Decl.") ¶ 5 Attach. 2, 6.) On October 3, 1995, the petitioner was detained as a federal pre-trial detainee in a local Iowa jail. (See Sauers Decl. ¶ 9 Attach. 2.) Following a jury trial, the petitioner was convicted on both counts in the indictment. On March 1, 1996 the sentencing court downwardly departed from the applicable guideline sentencing range based on the petitioner's extraordinary physical impairment, namely a severe kidney condition, and sentenced the petitioner principally to a term of incarceration of 120 months on each count to run concurrently, and to run concurrently with prior state sentences the petitioner had received. (See Petition ¶ 3; Sauers Decl. ¶ 15 Attach. 6.) On April 11, 1996, the BOP Regional Director issued a nunc pro tunc designation designating the Iowa Department of Corrections as the petitioner's designated place of confinement. (See Petition ¶ 7(a); Sauers Decl. ¶ 17 Attach. 8.) The government maintains in its papers in opposition to the present petition that this order was issued in error because at the time the federal sentence was imposed, the petitioner was in fact in the primary custody of federal authorities, rather than in state custody. The government argues that the petitioner was on probation from the State of Iowa at the time he was arrested by federal authorities on the federal charges for which he was eventually convicted.
In any event, on May 7, 1996, the petitioner was designated to FMC Springfield on account of his medical condition: the petitioner's kidney condition requires that he receive ongoing treatment, including dialysis. (See Sauers Decl. ¶ 20 Attach. 5.) On September 9, 1997, the petitioner was designated to FCI Otisville, where he is presently incarcerated. (See Sauers Decl. ¶ 21.)
The petitioner receives treatment for his medical condition at FCI Otisville, including dialysis three times per week. (See Attachment to Petition, 6.) However, the petitioner contends that he requires a kidney transplant and that his wife is prepared to be a kidney organ donor for him, and that he has insurance coverage to pay for the transplant, but that the BOP will not permit him to receive the transplant. The BOP contends that pursuant to its policies it will consider an escorted trip or medical furlough for an inmate to receive an organ transplant from a donor, provided that the procedure is clinically indicated and the inmate is able to pay for the costs of the procedure, including security costs. (See Decl. of Rosalind Bingham dated Jan. 26, 2000, ¶ 4.) The petitioner maintains that the only way for him to receive the transplant is for the BOP to designate an Iowa state facility as the place for him to serve the remainder of his federal sentence.
II.
In his petition, the petitioner challenges the failure of the BOP to transfer him to the custody of the Iowa Department of Corrections. The petitioner argues that the BOP has failed to comply with the Regional Director's April 1996 letter designating the Iowa Department of Corrections; that in order for his federal sentence to run concurrent to his state court sentence he must be in the custody of the Iowa Department of Corrections so that he can receive credit for his state sentences; and that transfer to the Iowa Department of Corrections would enable him to obtain the kidney transplant. The petitioner contends that the failure of the BOP to transfer him to state custody in Iowa violates his rights to due process of law under the United States Constitution and to fair treatment under certain federal regulations.
The petitioner made a similar application to the sentencing court for a transfer to state custody in Iowa, which was denied in an Order dated May 27, 1998. Chief Judge Melloy explained in that Order that the petitioner received a substantial downward departure under the federal Sentencing Guidelines based on his medical condition, and that the petitioner was promptly designated to a facility where he would receive dialysis. Chief Judge Melloy further explained that there was no basis to modify the sentence imposed and that, if the petitioner sought a transfer to Iowa, the petitioner should make an application to the BOP and that the petitioner could also apply to the Iowa prison authorities for a reduction of his state sentence or parole. (See Order dated May 27, 1998, attached as Exh. B to Decl. of Sarah S. Normand dated Jan. 28, 2000.)
III
The government correctly argues that the petitioner's petition must be dismissed because the petitioner has failed to exhaust his administrative remedies. It is well-settled that a petitioner must exhaust available administrative remedies before seeking habeas corpus relief in the federal courts. See Gonzalez v. Perrill, 919 F.2d 1, 2 (2nd Cir. 1990) (per curiam); Guida v. Nelson, 603 F.2d 261. 262 (2nd Cir. 1979); Anthony v. United States, No. 92 Civ. 6652, 1993 WL 485755, *1 (S.D.N.Y. Nov. 23, 1993). Accordingly, a federal inmate must exhaust available administrative remedies before seeking habeas review of the BOP's designation of a facility. See United States v. Pineyro, 112 F.3d 43, 45-46 (2nd Cir. 1997) (per curiam)
Exhaustion of administrative remedies is appropriate because it gives deference, in the first instance, to the BOP, which is charged by Congress with decisions such as the place of an inmate's confinement. See id. at 45 (citing 18 U.S.C. § 3621 (b)); see also United States v. Williams, 65 F.3d 301, 307 (2d Cir. 1995)
Moreover, the exhaustion requirement allows for the development of an administrative record, which facilitates effective judicial review. See McCarthy v. Magidan, 503 U.S. 140, 145 (1992); United States v. Felipe, No. 96 Civ. 3325, 1996 WL 409181, *2 (S.D.N Y July 19, 1996). In this case, for example, there are factual disputes, such as whether the petitioner is able to obtain the transplant he seeks while he is in federal custody, and whether a transplant would be facilitated by a transfer to state custody. These issues, which are central to the petitioner's claims, have not been developed in an administrative record.
The exhaustion requirement is jurisdictional; a habeas petitioner's failure to exhaust available administrative remedies requires dismissal of the petition for lack of jurisdiction. See Pineyro, 112 F.3d at 46; Jimenez, 2000 WL 28164, at *2-3.
The BOP provides for a three-step administrative remedy: a federal inmate who seeks to challenge any aspect of his confinement must first file a complaint with the facility's warden; the inmate may then appeal to the Regional Director of the BOP within 20 days of the warden's response; finally, within 30 days of a decision from the Regional Director, the inmate may appeal to the General Counsel of the BOP. An inmate who has not taken these three steps has not exhausted the available administrative remedies. See 28 C.F.R. § 542.10 et seq.; see also Magidan, 503 U.S. at 143-44; Gonzalez, 919 F.2d at 2;Felipe, 1996 WL 409181, at *2.
It is plain that the petitioner has not exhausted his administrative remedies with respect to the issues he raises in his petition. It is undisputed that the petitioner has not filed a request with the warden for a transfer to the custody of the Iowa Department of Corrections, nor has the petitioner taken the two remaining steps to exhaust his administrative remedies. (See Decl. of Rosalind Bingham dated Dec. 20, 1999, ¶¶ 4 5.) Accordingly, this Court lacks jurisdiction to consider the petitioner's petition. See Osorio v. United States, No. 98 Civ. 0284, 1998 WL 160873, *1 (S.D.N.Y. April 6, 1998); Anthony, 1993 WL 485755, at *2.
The petitioner attempts to argue that he has exhausted his administrative remedies because he and his wife have written to various government officials who have in turn contacted the BOP in reference to the petitioner's circumstances. This correspondence does not, however, constitute exhaustion of the administrative remedies available to the petitioner. The petitioner is required to exhaust the remedies in accordance with the procedures set out in the BOP regulations before pursuing his habeas petition. Because he has failed to do so, the petitioner's petition must be dismissed.
CONCLUSION
For the reasons explained above, the petitioner's habeas petition is dismissed without prejudice for failure to exhaust administrative remedies. The Clerk of the Court is directed to close this case.
SO ORDERED.