Smith v. Marberry

Full title: JACK SMITH, Petitioner, v. HELEN MARBERRY, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Aug 11, 2006

Case No. 5:06-CV-13355 (E.D. Mich. Aug. 11, 2006)

Opinion

Case No. 5:06-CV-13355.

August 11, 2006

OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

JOHN O'MEARA, District Judge

This is a habeas case brought pursuant to 28 U.S.C. § 2241. Jack Smith ("Petitioner"), a federal prisoner presently confined at the Federal Correctional Institution in Milan, Michigan, is challenging a determination by the Federal Bureau of Prisons ("BOP") concerning his eligibility for placement in a Community Corrections Center ("CCC"). For the reasons set forth below, the Court will dismiss the petition for writ of habeas corpus without prejudice.

I. Discussion

The instant petition must be dismissed, because petitioner acknowledges that he has failed to exhaust his administrative remedies with the BOP prior to filing the instant petition.

A federal habeas corpus petitioner must exhaust administrative remedies before seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. See Little v. Hopkins, 638 F.2d 953, 954 (6^th Cir. 1981); see also Graham v. Snyder, 68 Fed. Appx. 589, 590-91 (6^th Cir. 2003). The burden is on the habeas petitioner to prove exhaustion. See, e.g., Rust v. Zent, 17 F.3d 155, 160 (6^th Cir. 1994).

In this case, petitioner has failed to meet his burden of showing exhaustion of administrative remedies. Petitioner has failed to demonstrate that he has exhausted each of the claims contained in his habeas petition by filing an appropriate complaint with the BOP and by pursuing his appellate rights within the BOP before proceeding in federal court. See, e.g., Bailey v. Hemingway, No. 01-72188, 2001 WL 1525269, *2 (E.D. Mich. Aug. 9, 2001) (listing available remedies).

Petitioner has not shown that exhaustion would be futile. Exhaustion requires that Petitioner fairly present his claims to the BOP, but does not require that the BOP rule on the merits of those claims. See Fuller v. Rich, 11 F. 3d 61, 62 (5^th Cir. 1994). Presentation of the claims is sufficient to satisfy exhaustion. Petitioner must attempt to fully exhaust his administrative remedies before seeking federal habeas relief. See, e.g., Six v. United States Parole Comm'n., 502 F. Supp. 446, 448 (E.D. Mich. 1980); See also Rodriguez v. Federal Bureau of Prisons, 2006 WL 1897296, *1 (E.D.Mich. July 11, 2006) (rejecting petitioner's argument that it would be futile for him to attempt to exhaust his administrative remedies with the BOP regarding his eligibility for placement in a community corrections center prior to seeking habeas relief).

II. ORDER

The Court concludes that Petitioner has not fully exhausted his administrative remedies. Accordingly, the Court DISMISSES WITHOUT PREJUDICE the petition for writ of habeas corpus. Because a certificate of appealability is not needed to appeal the dismissal of a habeas petition filed under § 2241, Witham v. United States, 355 F. 3d 501, 504 (6^th Cir. 2004), Hervey v. United States, 105 F. Supp. 2d 731, 736 (E.D. Mich. 2000), Petitioner need not apply for one with this Court or the Sixth Circuit before seeking to appeal this decision.