RENÉE MARIE BUMB, District Judge.
Petitioner, Richard Soto, a federal prisoner confined at the Federal Correctional Institution in Fort Dix, New Jersey ("FCI Fort Dix"), at the time he filed this action, brings this habeas petition pursuant to 28 U.S.C. § 2241, challenging the decision by the Federal Bureau of Prisons ("BOP") to provide [Petitioner] with "insufficient" time in a Residential Re-entry Center ("RRC"), allegedly in violation of the Second Chance Act of 2007 ("SCA"). (Petition, pg. 1.)
Based on this Court's review of the pleadings and relevant record as provided by Respondent, this petition will be denied for lack of merit.
Residential Re-Entry Center ("RRC") assignments are governed by 18 U.S.C. § 3624(c)(1), regularly referred to as the Second Chance Act. See, Second Chance Act, Pub. L. No. 110-199, effective April 9, 2008. In essence, the Act extended the maximum amount of time that the Bureau of Prisons ("BOP") may place an inmate in an RRC from 180 days to twelve months.
Section 3624(C):
18 U.S.C. § 3624(c).
Section 3621(b) states:
Thus, pursuant to the Second Chance Act, each inmate's prerelease RRC decision must be analyzed and supported under these § 3621(b) factors.
The BOP issued regulations setting forth procedures for evaluating inmates' RRC placement decisions consistent with § 3621(b). See 28 C.F.R. §§ 570.20-570.22. For instance, 28 C.F.R. § 570.22 states:
The time frames noted are set forth in section 570.21, which states:
28 C.F.R. § 570.21.
In addition to the individual determination under 18 U.S.C. § 3621(b), a prisoner's participation in, or completion of, Inmate Skills Development programs within the institution is considered separately to determine if additional placement time is warranted as an incentive under 42 U.S.C. § 17541, the Federal prisoner reentry initiative. Section 17541 requires the BOP to "provide incentives for prisoner participation in skills development programs." Id. at § 17541(a)(1)(G). One such incentive may "at the discretion of the [BOP]" include "the maximum allowable period in a community confinement facility." Id. at § 17541(a)(2)(A).
On or about April 10, 2006, Petitioner was sentenced in the United States District Court for the Middle District of Pennsylvania, to 110 months imprisonment, with three years of supervised release, for his conviction of Distribution and Possession with Intent to Distribute Heroin, in violation of 21 U.S.C. § 841(a). (Respondent's Declaration of Tara Moran, Exhibit 1.) Petitioner's projected release date is September 12, 2013, assuming he receives all good conduct time available. (Moran Decl., Ex. 1.)
On February 6, 2012, Petitioner was designated to serve his prison term at FCI Fort Dix. Later that same month, on February 29, 2012, Petitioner's Unit Team conducted a Program Review for Petitioner. At that time, Petitioner was about 18 months from his projected release date in September 2013. On March 7, 2012, the Unit Team considered Petitioner for RRC placement based upon Petitioner's earlier Program Review. (Respondent's Declaration of Joanna Ellis, Attachments 1, 2, pg. 3.)
The Unit Team completed a RRC Consideration/Re-Consideration form that outlined the following factors considered by the Unit Team in formulating a RRC start date for Petitioner: (1) the resources of the intended facility; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the sentencing court concerning the purpose of the imposed sentence or a recommended correctional facility for serving the imposed prison term; (5) any pertinent policy statement issued by the U.S. Sentencing Commission; and (6) whether the inmate completed (a) Inmate Skills Development programing, (b) non-residential Drug Abuse Treatment Program ("DAP"), or (c) Residential Drug Abuse Treatment Program ("RDAP"). (Ellis Decl., Attachment 1, pg. 1.) The Unit Team also considered Petitioner's need for services, public safety and the necessity of the BOP's population. Weighing all of these criteria, the Unit Team recommended that Petitioner receive 150 to 180 days RRC placement, noting that this "placement recommendation is of sufficient duration to provide the greatest likelihood of successful re-integration into the community. (Id.)
The Unit Team's individualized determination for Petitioner's RRC placement reads as follows:
(Ellis Decl., ¶ 7 and Attachment 1, pp. 1-2.)
On or about February 25, 2012, Petitioner filed an administrative remedy form BP-9 with the Warden at FCI Fort Dix, requesting a 12 month RRC placement. On March 26, 2012, the Warden denied Petitioner's request for a 12-month RRC placement, relying substantially on the Unit Team's determination and recommendation. (Moran Decl., Ex. 2.)
Thereafter, on April 2, 2012, Petitioner appealed the Warden's decision to the Regional Director. The Regional Director denied Petitioner's administrative appeal in a response dated May 1, 2012, finding as follows:
(Moran Decl., Ex. 2, pg. 5.)
Petitioner did not appeal the Regional Director's decision to the Central Office. (Moran Decl., ¶ 4.)
On August 3, 2012, the Warden signed the Institutional Referral for RRC Placement form recommending the RRC placement range between March 22, 2013 to April 19, 2013. (Ellis Decl., ¶ 8 and Attachment 3.) This form was then sent to the Philadelphia Community Corrections Office ("CCO") to determine Petitioner's RRC placement in Harrisburg, Pennsylvania. (Ellis Decl., ¶ 8.)
Petitioner filed the instant habeas petition under 28 U.S.C. § 2241 on or about May 18, 2012. He filed a supplemental petition on July 25, 2012. (Docket entry no. 2.) The Government filed a response to the petition, together with the relevant administrative record, on October 26, 2012. (Docket entry no. 6.) Petitioner thereafter filed a reply/traverse on or about November 20, 2012. (Docket entry no. 7.)
Petitioner brings his habeas petition as a pro se litigant. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970).
Section 2241 of Title 28 of the United States Code provides in relevant part:
28 U.S.C. § 2241(a), (c)(3).
As an initial matter, Respondent argues that Petitioner did not fully exhaust his administrative remedies before filing this habeas petition. Namely, Petitioner did not complete his administrative review process because he did not file an appeal before the Central Office. However, in his reply, Petitioner attaches an unsigned administrative appeal form, dated May 11, 2012, to the Central Office. (Petitioner's Reply, Ex. C.) Petitioner filed an "Inmate Request to Staff" on June 29, 2012, asking for a receipt or response regarding his appeal to the Central Office. (Id., Ex. D.) Petitioner alleges that he wrote to the Central Office as instructed, but has not received any response. He therefore construed the lack of response to be a denial of his appeal. See 28 C.F.R. § 543.18.
Although 28 U.S.C. § 2241 contains no statutory exhaustion requirement, a federal prisoner ordinarily may not bring a petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging the execution of his sentence, until he has exhausted all available administrative remedies.
Goldberg v. Beeler, 82 F.Supp.2d 302, 309 (D.N.J. 1999), aff'd, 248 F.3d 1130 (3d Cir. 2000). See also Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761 (3d Cir. 1996). Nevertheless, exhaustion of administrative remedies is not required where exhaustion would not promote these goals. See, e.g., Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required where petitioner demonstrates futility); Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where it "would be futile, if the actions of the agency clearly and unambiguously violate statutory or constitutional rights, or if the administrative procedure is clearly shown to be inadequate to prevent irreparable harm"); Carling v. Peters, 2000 WL 1022959, *2 (E.D. Pa. 2000) (exhaustion not required where delay would subject petitioner to "irreparable injury").
In Snisky v. Pugh, the petitioner did not deny his failure to exhaust; however, the Court excused exhaustion because the petitioner was scheduled to be released, and his claim was clearly without merit. See 974 F.Supp. 817, 819 (M.D. Pa. 1997), rev'd on other grounds, 159 F.3d 1353 (3d Cir. 1998). The court recognized that exhaustion could be excused where it would be futile. See id. In Snisky, the court found that the BOP "unequivocally" would deny the petitioner's relief, and he would return to the district court after the denial. Thus, the court addressed the claims on the merits.
Likewise, in Ferrante v. Bureau of Prisons, the court found that if the petitioner's claim was meritorious, he would be released to a halfway house relatively soon; therefore, dismissing the petition for lack of exhaustion would be futile.
Here, this Court finds that Petitioner did attempt to exhaust his administrative remedies on appeal to the Regional Director, which appeal was denied on the merits on May 1, 2012. (Moran Decl., ¶ 4.) Moreover, it would appear that Petitioner also attempted to exhaust his administrative appeals to the Central Office as required, but received no response to this last appeal. Consequently, the Court finds that Petitioner did exhaust his administrative remedies.
However, even if Petitioner had not filed an administrative appeal to the Central Office as asserted by the Government, it is clear that any effort now to have Petitioner exhaust his administrative remedies by appeal to the Central Office would be futile, as he will be released to RRC placement relatively soon, such administrative appeal would likely be rejected as untimely, and the Central Office would "almost certainly" have denied the appeal. See Fraley, 1 F.3d at 925; see also Ferrante, 990 F. Supp. at 370, and Snisky, 974 F. Supp. at 819-20. Moreover, Petitioner's claim is clearly without merit, so the exhaustion issue need not be reached. Accordingly, the Court will address the merits of this petition.
Here, Petitioner argues that the BOP violated the Second Chance Act and procedural due process by failing to make an individualized assessment of his eligibility for the maximum 12-month RRC placement. He principally contends that the FCI Fort Dix staff determined his RRC placement pursuant to a directive from the BOP's General Counsel that is contrary to the Second Chance Act, as found in this Court's prior ruling in Strong v. Schultz, 599 F.Supp.2d 566 (D.N.J. 2009). Petitioner refers to a June 24, 2010 BOP memorandum that removed the requirement of having the Regional Director approve RRC placements of more than six months. Petitioner alleges that the June 24, 2010 memorandum additionally allows that longer RRC placements should be considered for inmates whose following factors are high, namely, (1) risk of recidivism, (2) demonstrated successful participation in or completion of programming opportunities, and (3) the need to establish community support systems.
More specifically, Petitioner contends that he met all of these factors, noting that the Unit Team stated that (1) Petitioner was a "high risk for recidivism", (2) Petitioner had a lengthy list of Petitioner's completed programming courses, and (3) Petitioner had a lengthy prison sentence of 110 months, has minimal employment readiness skills and has not completed his GED. (Petitioner's Reply, pg. 3.) In addition, Petitioner points to statistical charts that show the BOP's average expected stay at an RRC was 122.9 days in 2010 and 129.7 days in 2011. (Pet. Reply, Ex. B.) Further, another BOP chart shows the expected length of stay in an RRC in the Northeast Region in 2010 to be six months or less. Namely, 159 inmates or 42.5% had a six month stay, and only 2 inmates or 0.5% had a stay of 7 months, with no inmates having an expected length of stay for longer than 7 months in 2010. (Pet. Reply, Ex. A.) Petitioner argues that these statistics contradict the BOP's insistence that it considers each inmate on an individual basis for up to 12 months RRC placement.
In Strong v. Schultz, 599 F.Supp.2d 556 (D.N.J. 2009), the petitioner, Douglas Strong's RRC placement decision was made on October 2, 2008. Thus, the decision was made subsequent to the April 14, 2008 memo, but prior to the October 21, 2008 enactment of the regulations by the BOP. In Strong, the court held that the April 14, 2008 Memorandum issued by the BOP was inconsistent with the Second Chance Act's amendments to 3624(c), because it "impermissibly constrains staff's discretion to designate inmates to a CCC for a duration that will provide the greatest likelihood of successful reintegration into the community, contrary to § 3624(c)(6)(C)."
Id. at 563.
In this case, however, Petitioner's placement decision was made in February 2012, well after the effective date of the interim rule. Nevertheless, Petitioner alleges that his placement decision was impermissibly constrained by an arbitrary six-month or less presumption by the BOP in general.
Courts since Strong have recognized its limited holding. In cases, such as here, where Petitioner's RRC placement decision was made after the BOP issued the appropriate regulations and abandoned the directive in the Memorandum concerning the six-month presumptive placement, courts have consistently held that the Second Chance Act does not guarantee a one-year RRC placement, but "only directs the Bureau of Prisons to consider placing an inmate in a RRC for up to the final twelve months of his or her sentence." Lovett v. Hogsten, 2009 WL 5851205 (6th Cir. Dec.29, 2009) (unpubl.); see also Nelson v. Zickefoose, 2013 WL 140049 (D.N.J. Jan. 9, 2013) (Hillman, J.); Travers v. Federal Bureau of Prisons, 2009 WL 4508585 (D.N.J. Nov.30, 2009) (Hillman, J.) (finding that ". . . nothing in the Second Chance Act entitles Petitioner to a halfway house placement longer than the 120-150 days already approved. These pre-release placement decisions are committed, by statute, to the discretion of the Director of the Bureau of Prisons, whose exercise of discretion is to be guided by the enumerated considerations."); Creager v. Chapman, 2010 WL 1062610 (N.D. Tex. Mar.22, 2010) (holding that although Petitioner disagrees with her RRC placement date after consideration of the § 3621(b) factors, this "does not establish a constitutional violation, as nothing in the Second Chance Act or § 3621(b) entitles [Petitioner] or any other prisoner to any guaranteed placement in a residential reentry center[ ]" and "`the duration of [RRC] placement is a matter to which the [BOP] retains discretionary authority.'" (citations and quotation omitted)); Chaides v. Rios, 2010 WL 935610 (E.D. Cal. Mar.15, 2010) (noting that "In sum, the BOP has discretionary authority to transfer an inmate to an RRC at any time, after considering the factors set forth in 18 U.S.C. § 3621(b), and has a separate and distinct obligation to consider an inmate for transfer to an RRC for up to twelve months prior to the inmate's release date, after considering the factors set forth in section 3621(b)." (citation omitted)); see also Wires v. Bledsoe, 2010 WL 427769 (M.D.Pa. Feb.3, 2010) (finding ". . . since the petitioner's unit team recommended significantly less than six months (only 60 days) in a RRC, there is no basis to infer that their discretion was in any way constrained or chilled by the requirement stated in the memoranda that RRC placement beyond six months must be based on unusual or extraordinary circumstances and must be approved by the Regional Director"); Torres v. Martinez, 2009 WL 2487093, at *4-5 (M.D.Pa. Aug.12, 2009) (finding ". . . the Bureau of Prisons did not violate the Second Chance Act when it determined that Petitioner Torres would be placed in pre-release custody for six months, regardless of whether it followed the April 18, 2008 Memorandum or the October 2008 Regulations when it reviewed the petitioner's case"); Ramirez v. Hickey, 2010 WL 567997 (E.D.Ky. Feb.12, 2010) (finding there was nothing presented to indicate that the RRC placement decision was "based upon arguably discretion-limiting criteria contained in the now defunct April 14, 2008, Memorandum").
In fact, cases brought before various district courts around the country have resulted in the courts examining whether the § 3621(b) factors were considered by the BOP in making the RRC placement decision, after an individualized assessment. When the 3621(b) factors are considered, the courts are satisfied that the law was correctly applied and followed.
Accordingly, this Court's review is limited to whether the BOP abused its discretion. Vasquez v. Strada, 684 F.3d 431, 434 (3d Cir. 2012) (citing Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1991)). Here, the record clearly establishes that the Unit Team and reviewing officials properly exercised their discretion in accordance with the statutory factors enumerated in § 3621(b) and on an individualized basis. This is evidenced by the Exhibits to the Ellis Declaration, in particular, the Residential Re-Entry Center Consideration/Reconsideration form, which concludes that the 150 to 180-day recommendation for RRC placement was based on Petitioner's specific, individual circumstances. (Ellis Decl., ¶¶6, 7 and Attachment 1.) Petitioner's disagreement with the outcome does not entitle him to habeas relief. See Nelson, 2013 WL 140049 at *6 (citing Creager v. Chapman, 2010 WL 1062610 (N.D.Tex. Mar. 22, 2010)). Moreover, his references to general statistical data does not disprove that an individual assessment was performed in Petitioner's case, especially where the factors and Petitioner's specific circumstances were carefully reviewed and discussed, as evidenced in the record provided herein.
Thus, based on the foregoing, this Court finds that the BOP complied with the Second Chance Act and Petitioner has not demonstrated that he "is in custody in violation of the Constitution or laws or treaties of the United States . . . ." as required for relief under 28 U.S.C. § 2241.
For the reasons set forth above, this habeas petition will be denied with prejudice for lack of merit. An appropriate order follows.
