Opinion
04-C-417-C.
November 16, 2004
ORDER
In an order entered in this case on June 23, 2004, I imposed a stay of all proceedings pending a decision by the Court of Appeals for the Seventh Circuit in White v. Scibana, No. 04-2410. On October 25, 2004, petitioner moved to lift the stay and provided Bureau of Prisons documentation showing the current computation of his good conduct time and his projected release and pre-release dates. On October 28, 2004, I denied the motion to lift the stay, finding that petitioner's projected halfway house date of February 3, 2005, was not imminent, even if petitioner were to be awarded 29 days of good conduct time and his prerelease date were to be adjusted to early January, 2005.
Presently before the court is petitioner's motion to lift the stay dated November 11, 2004. In this motion, petitioner points out that recently this court lifted the stay in another case, Jackson v. Scibana, 04-C-416-C, where the petitioner showed he might be eligible for pre-release to a halfway house in early January if his good conduct time were to be recalculated in accordance with White. In lifting the stay in that case, I reasoned that although the Court of Appeals for the Seventh Circuit is expected to rule on the White appeal before the end of this year, if the court were to affirm this court's decision, there would be insufficient time to resolve petitioner's petition in petitioner's favor and give respondent an opportunity to adjust petitioner's pre-release date if it wished to do so. Petitioner Michael Richmond is in the same position as petitioner Jackson. Therefore, I will lift the stay previously imposed in this case.
As an initial matter, I note that when petitioner signed the petition in this case, he did not verify the petition as 28 U.S.C. § 2242 requires. Instead, petitioner swore to the truthfulness of the factual assertions made in an affidavit attached to the petition. Ordinarily, a petitioner makes factual assertions in the body of his petition. It is the factual assertions that require verification. In this case, petitioner's only factual assertions are made in his "affidavit," which I am accepting as having been incorporated into the petition. Thus, I consider that petitioner has satisfied the requirements of 28 U.S.C. § 2242.
Petitioner admits that he has not exhausted his administrative remedies. He argues that exhaustion would be futile because the Bureau of Prisons is bound by its program statements in ruling on administrative appeals and until the legitimacy of the program statement at issue in this case is determined by the Court of Appeals for the Seventh Circuit inWhite, the Bureau of Prisons must deny all requests for administrative relief challenging the Bureau's method of calculating good conduct time.
The court of appeals has held that district courts may waive the exhaustion requirement in cases brought under § 2241 in limited circumstances. In particular, waiver is appropriate when the agency has predetermined the issue. Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (court may waive exhaustion requirements for § 2241 to prevent prejudice caused by unreasonable delay or when agency has predetermined issue). In this case, respondent and the bureau have made it clear that they believe that an inmate's good conduct time should be calculated on the basis of the time he has served. Further, respondent has appealed the decision in White and it is his position thatWhite does not have to be applied to inmates not a party to that case. See Zapata v. Scibana, No. 04-C-306-C (W.D. Wis. June 1, 2004). Therefore, it is proper to waive the exhaustion requirement because exhaustion would be futile. Accordingly, respondent will be directed to show cause why this petition should not be granted.
Petitioner should note that because he is not proceeding in forma pauperis, it is his obligation to serve the petition on the respondent. Pursuant to Fed.R.Civ.P. 81, the rules governing service of process in civil actions are applicable to this proceeding because no specific rules governing service of process in § 2241 habeas corpus actions exist elsewhere in a statute or in the Rules Governing Section 2254 and 2255 cases.
The rule governing service of process in civil actions brought against a federal official in his official capacity is Fed.R.Civ.P. 4(i). According to this rule, petitioner's petition must be sent with a copy of this court's order by certified mail to: 1) the respondent; 2) the United States Attorney for the Western District of Wisconsin; and 3) the Attorney General in Washington, D.C. The address for the United States Attorney in this district is: The Hon. J.B. Van Hollen, 660 W. Washington Ave., Madison, WI, 53703. The address for the Attorney General in Washington, D.C. is: The Hon. John Ashcroft, United States Attorney General, 950 Pennsylvania Ave., N.W., Rm. 5111, Washington, DC 20530. Enclosed to petitioner with a copy of this order are the extra copies of his petition, as well as copies of the Bureau of Prisons documentation that was attached to his October 25 motion, which I am considering as an addendum to the petition. Pursuant to Fed.R.Civ.P. 4(l), petitioner is requested to submit proof to the court that he served his petition and the addendum by certified mail. A copy of the postmarked certified mail receipt for each of the individuals to whom the petition was sent will constitute proof of service.
ORDER
IT IS ORDERED that the stay imposed in this case on June 23, 2004 is LIFTED.
Further, IT IS ORDERED that no later than November 30, 2004, petitioner is to submit proof of service of his petition upon the respondents.
Finally, IT IS ORDERED that respondent may have until November 30, 2004, in which to show cause why this petition for a writ of habeas corpus should not be granted on petitioner's claim that the Bureau of Prisons is calculating his good time credits in violation of 18 U.S.C. § 3624(b)(1). There is no need for a traverse.