Germany v. Keller (INMATE3)

Filing 14

ORDER re 13 Response to Habeas Petition, filed by J. A. Keller Reply Brief due by 10/6/2008. Signed by Honorable Charles S. Coody on 9/19/08. (vma, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION J E F F GERMANY, Petitioner, v J.A. KELLER, Respondent. ) ) ) ) ) ) ) ) )

Civil Action No. 2:08cv595-WHA (W O )

ORDER R e sp o n d e n t has filed an answer (Doc. No. 13) addressing the claims presented in the in s ta n t 28 U.S.C. § 2241 habeas corpus petition. In this answer, Respondent contends that th e petition for habeas corpus relief is due to be denied because Petitioner is entitled to no re lie f on the claims presented therein. Specifically, Respondent argues (a) that Petitioner has n o t exhausted his administrative remedies regarding the issues raised in his petition, as P etitio n er's appeal to the Regional Director is currently pending; (b) that the appellate court d e c isio n s relied upon by Petitioner as a basis for relief are not controlling in Eleventh Circuit; ( c ) that the BOP's authority to promulgate and administer regulations regarding early release c riter ia under RDAP are entirely discretionary; and (d) that Petitioner has failed to set forth f a c ts demonstrating any violation of his equal protection rights. U p o n review of the petition, Respondent's answer, and the supporting evidentiary m a ter ial filed in this case, it appears that Petitioner has not yet exhausted his available

a d m in is tra tiv e remedies with respect to the claims presented in his petition for habeas corpus r e lie f . A federal prisoner who requests habeas corpus relief under 28 U.S.C. § 2241 must f irs t exhaust his administrative remedies before seeking relief from this court. Gonzalez v. U n ite d States, 959 F.2d 211 (11 th Cir. 1992). This court does not deem it appropriate to rule o n the merits of Petitioner's claims without first requiring that he exhaust his administrative r e m e d i e s. A c c o r d in g ly, it is ORDERED that on or before October 6, 2008, Petitioner shall file a reply to R esp o n d en t's answer. In his reply, Petitioner shall specifically show cause why his petition s h o u ld not be dismissed for his failure to exhaust his administrative remedies and for th e other reasons stated by Respondent. Any documents or evidence filed after October 6, 2 0 0 8 , will not be considered by the court except in exceptional circumstances. At any time af ter the deadline for filing a reply expires, the court will determine whether an evidentiary h e a rin g is necessary. If it appears that an evidentiary hearing is not required, the court will d i s p o s e of the petition as justice requires. Cf. Rule 8(a), Rules Governing Section 2254 C a s e s in the United States District Courts. P etitio n er is instructed that when replying to Respondent's answer, he may file sworn a f f id a v its or other documents in support of his claims. Affidavits should set forth specific f a cts which demonstrate that Petitioner is entitled to relief on the grounds presented in the h ab ea s corpus petition. If documents that have not previously been filed with the court are

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re f erre d to in the affidavits, sworn or certified copies of those papers must be attached to the a f f id a v its or served with them. When Petitioner attacks Respondent's answer by use of a f f id a v its or other documents, the court will, at the appropriate time, consider whether to e x p a n d the record to include such materials. Cf. Rule 7, Rules Governing Section 2254 C a se s in the United States District Courts. D o n e this 19 th day of September, 2008.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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