Opinion
No. 3:04-CV-40-M
March 25, 2004
FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an Order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Factual background
Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2241. Petitioner is an inmate in the federal prison system.
In 1991, Petitioner was convicted in the Western District of Oklahoma for (1) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) carrying a firearm in relation to a drug crime, in violation of 21 U.S.C. § 841(a)(1); and (3) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The Court sentenced Petitioner to 165 months imprisonment. The Tenth Circuit affirmed. See United States v. Hager, 969 F.2d 883 (10th Cir. 1992). On July 22, 1996, Petitioner filed a motion to vacate, set-aside, or correct sentence pursuant to 28 U.S.C. § 2255. The district court vacated Petitioner's sentence and re-sentenced Petitioner to 188 months imprisonment with five years supervised release. On October 3, 1997, the Tenth Circuit affirmed. United States v. Hager, 1997 WL 586816 (10th Cir. Sept. 23, 1997) (unpublished opinion).
On January 12, 2004, Petitioner filed this petition. He argues: (1) he was denied due process because he is entitled to serve the last 180 days of his sentence in a Community Corrections Center (CCC), but the Bureau of Prisons (BOP) has granted him only forty days in CCC; (2) the BOP has discriminated against him by not placing him in a CCC for 180 days; (3) the BOP has denied him due process in the administrative procedure process; and (4) the BOP had denied him due process by not following its guidelines for placing him in CCC.
Community Corrections Centers are also referred to as "halfway houses."
On February 17, 2004, Respondent filed a motion to dismiss for failure to exhaust administrative remedies. In the alternative, Respondent argues the petition is without merit. On February 26, 2004, Petitioner filed a reply. The Court finds the petition should be denied.
II. Discussion
Generally, petitioners seeking relief under § 2241 must exhaust their administrative remedies prior to presenting their claims in federal court. Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993); Fuller v. Rich, 11 F.3d 61 (5th Cir. 1994). Petitioner admits he is currently pursing his administrative remedies, but that these remedies are not yet exhausted. He argues his failure to exhaust should be excused because the administrative process will not be complete by April 6, 2004, the date he states he is entitled to be released to CCC.
Exceptions to the exhaustion requirement exist when administrative remedies are unavailable, inappropriate for the relief sought, or where the attempt to exhaust the remedies would be futile. Fuller, 11 F.3d at 62. Exhaustion of administrative remedies is not a jurisdictional requirement in the context of a § 2241 petition that is unrelated to civil rights issues. See Id. Petitioner is seeking to be released to CCC on April 6, 2004. There is no evidence that the administrative process will be completed by that date. The Court therefore finds the petition should be determined on the merits.
It is well settled that "[a] necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination by the federal court that [his or her] custody violates the Constitution, laws or treaties of the United States." Rose v. Hodges, 423 U.S. 19, 21 (1975). Under 18 U.S.C. § 3621(b), the BOP may direct confinement of a prisoner in any available facility and may transfer a prisoner from one facility to another at any time. Federal prisoners generally have no constitutional right to placement in a particular penal institution. Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Brown-Bey v. United States, 720 F.2d 467, 470 (7th Cir. 1983). Petitioner does not have a constitutional right to designation at any particular institution. Moore v. United States Att'y Gen., 473 F.2d 1375 (5th Cir. 1973).
Petitioner claims he is entitled to release to CCC pursuant to 18 U.S.C. § 3624(c) and relevant BOP policy. Section 3624(c) provides:
The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement. . . .18 U.S.C. § 3624(c). The courts have rejected the claim that § 3624(c) creates a protected due process liberty interest, and have held that the statute does not encroach upon the BOP's broad discretion and authority to determine where prisoners may be confined during the pre-release period. See Prows v. Fed. Bureau of Prisons, 981 F.2d 466, 469-70 (10th Cir. 1992)("Nothing in § 3624(c) indicates any intention to encroach upon the Bureau's authority to decide where the prisoner may be confined during the pre-release period."); United States v. Sneed, 63 F.3d 381, 389 n. 6 (5th Cir. 1995) (same); United States v. Laughlin, 933 F.2d 786, 789 (9th Cir. 1991); Ready v. L.E. Fleming, 2002 WL 1610584 (N.D. Tex. July 19, 2002) (finding § 3624(c) does not create a constitutionally protected liberty interest in being placed in a half-way house); Lyle v. Sivley, 805 F. Supp. 755, 760-61 (D. Ariz. 1992) (denying habeas corpus relief because, inter alia, § 3624(c) does not create a protected liberty interest). While the statute does use mandatory language, it relates only to a general guideline to facilitate the prisoner's post-release adjustment through the establishment of some unspecified pre-release conditions. Prows, 981 F.2d at 469. Thus, § 3624(c) does not create a constitutionally protected liberty interest and Petitioner's halfway house claims should be denied.
Finally, Petitioner argues he was denied due process during the administrative remedy process. Petitioner states the BOP has not yet responded to his letters. First, it is undisputed that Petitioner has not completed the administrative remedy process. Further, although Petitioner submitted correspondence to the BOP, there is no indication he submitted the required Request for Administrative Remedy Form. (See Resp. Appendix pp. 37-39). Additionally, BOP policy clearly informs inmates that they may consider a failure to respond to their request within the time allotted to constitute a denial of their request, and they may proceed to the next level of administrative review. (Resp. Appendix p. 43; 28 C.F.R. § 542.18). Petitioner has not shown his due process rights were violated. His claims should therefore be denied.
RECOMMENDATION
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2241 be denied with prejudice.