Thomas v. Keller (INMATE 3)

Filing 15

MEMORANDUM OPINION. A separate final judgment will be entered.. Signed by Honorable Terry F. Moorer on 6/14/2010. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION JIM M IE THOMAS, P e titio n e r, v. J.A. KELLER, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 2:10cv157-TFM (WO)

M E M O R A N D U M OPINION T h is is a pro se petition for a writ of habeas corpus by a federal prisoner pursuant to 2 8 U.S.C. § 2241. (Doc. No. 1.) I. BACKGROUND

T h e petitioner, Jimmie Thomas ("Thomas"), is currently incarcerated at the Federal P r is o n Camp in Montgomery, Alabama, serving a 97-month sentence, imposed in 2005 by th e United States District Court for the Southern District of Texas, upon his conviction for c o n sp ira c y to possess with intent to distribute over 100 kilograms of marijuana. In his p e titio n , Thomas claims that the Federal Bureau of Prisons ("BOP") has failed to properly c o n s i d e r the mandated statutory criteria in determining the duration of his placement in a re sid e n tia l reentry center ("RRC") for the final portion of his federal sentence, in violation o f the Second Chance Act. In compliance with this court's orders, the respondent has filed an answer in which h e argues that (1) Thomas's habeas petition is not ripe for court review, because at the time

T h o m a s filed his petition, he was not close enough to the end of his sentence to qualify for c o n sid e ra tio n for placement in an RRC under the Second Chance Act and the BOP had made n o determination regarding his RRC placement; and (2) even if Thomas were eligible for c o n sid e ra tio n for placement in an RRC at the time he filed his petition, he has not exhausted a d m in is tra tiv e remedies with respect to his claims. (Doc. No. 11.) In response, Thomas has f ile d a traverse. (Doc. No. 13.) II. DISCUSSION

B y his petition, Thomas seeks to have the BOP consider him for placement in an RRC f o r the final portion of his sentence, for the maximum amount of time allowed, pursuant to th e authority of the Second Chance Act of 2007. (Doc. No. 1 at p. 18.) More specifically, h e requests that this court issue an order directing the BOP "in good faith to consider P e titio n e r on an individualized basis using the five factors set forth in 18 U.S.C. § 3621(b) p lu s take into account the language in 18 U.S.C. § 3624 (c)(6)(C) granting him the maximum a m o u n t of time in the RRC to provide the `greatest likelihood of successful reintegration into th e community.'" (Id.) T h e Second Chance Act amended 18 U.S.C. §§ 3621(a) and 3624(c). Pursuant to the S e c o n d Chance Act, the BOP staff is required to review inmates for RRC placement 17-19 m o n th s before their projected release date, and inmates are to be individually considered u s in g the five factors listed in § 3621(b). When he filed his petition, on February 11, 2010, T h o m a s's projected release date was June 1, 2012. At the time of filing, then, Thomas was

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n o t close enough to the end of his sentence to qualify under the Second Chance Act for co n side ratio n for placement in an RRC for a portion of the remainder of his sentence. There is no indication in the pleadings before this court that an assessment regarding Thomas's p la c em e n t in an RRC, or the duration of that placement, has been made. Ripeness becomes a n issue when a case is anchored in future events that may not occur as anticipated, or at all. S ee Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 2 0 0 -2 0 1 (1983); Dames & Thomas v. Regan, 453 U.S. 654, 689 (1981). Under the c irc u m sta n c e s , Thomas's case is not ripe for review. M o re o v e r, even if the BOP makes a determination regarding Thomas's RRC p la c em e n t, Thomas must his exhaust his administrative remedies if he wishes to challenge th a t determination. The pleadings before this court reflect that Thomas has not attempted to p u rs u e relief via the BOP's administrative remedies. Thomas maintains that exhaustion s h o u ld be excused because it would be futile to pursue the BOP's administrative remedies. (D o c . No. 1 at pp. 14-15.) In support, he notes that BOP Director Harley Lappin believes th a t prisoners placed in an RRC for longer than six months "tend to do worse rather than b e tte r." (Id.) It is well settled in this circuit that a federal prisoner who requests habeas corpus relief u n d e r 28 U.S.C. § 2241 must first exhaust his administrative remedies before seeking relief f ro m this court. See Skinner v. Wiley, 335 F.3d 1293, 1295 (11 th Cir. 2004); Gonzalez v. U n ite d States, 959 F.2d 211 (11 th Cir. 1992). The BOP has established regulations that set

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f o rth the procedures that a prisoner must follow before seeking relief from a district court. S e e 28 C.F.R. §§ 542.10 et seq.; United States v. Lucas, 898 F.2d 1554, 1556 (11 th Cir. 1 9 9 0 ). These regulations govern formal review of inmate complaints relating to any aspect o f their imprisonment and specify the procedures that inmates must pursue before attempting to seek relief in federal court. United States v. Herrera, 931 F.2d 761, 764 (11 th Cir. 1991). If , and only if, an inmate has pursued his administrative remedies may he seek relief in f e d e ra l court. Id. "An inmate has not fully exhausted his administrative remedies until he h a s appealed through all three levels [of the BOP's administrative remedies]." Irwin v. H a w k , 40 F.3d 347, 349 n.2 (11 th Cir. 1994). Thomas has not exhausted the three-level administrative remedy process, set forth at 2 8 C.F.R. §§ 542.10-.15, with regard to his claims concerning his eligibility for placement in an RRC. Therefore, he has not satisfied the requirement that he exhaust his available ad m inistrat iv e remedies before seeking habeas corpus relief in federal court. Moreover, T h o m a s has failed to establish that it would be futile to pursue the BOP's administrative remedies. Despite BOP Director Lappin's personal opinion, the BOP's regulations, amended a f te r passage of the Second Chance Act, provide for placement in an RRC for up to 12 m o n th s . Relying on the Second Chance Act and 28 C.F.R. § 570.21, the Eleventh Circuit has d e te rm in e d that an inmate "may immediately seek [ ] individual determination [for placement in an RRC up to 12 months] under the administrative procedures currently available to him." W o o d w a r d v. Grayer, Case No. 08-12851, *7 (11 th Cir. Dec. 23, 2008). Accordingly, as the

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B O P is required by statute and its own regulations to consider Thomas for placement in an R R C for up to 12 months, Thomas has failed to demonstrate that it would be futile to exhaust th e BOP's available administrative remedies. See Hayes v. Grayer, Case No. 1:09cv896R W S 2009 WL 1473929 (N.D. Ga. May 26, 2009). Therefore, in addition to this action not b e i n g ripe for court review, dismissal for failure to exhaust administrative remedies is also w a rr a n te d . III. CONCLUSION

A c c o rd in g ly, the court concludes that the 28 U.S.C. § 2241 petition for habeas corpus re lie f should be DISMISSED without prejudice because this case is not ripe for review and b e c au s e of Thomas's failure to exhaust administrative remedies in accordance with the p ro c e d u re s established by the BOP. A separate final judgment will be entered. D o n e this 14 th day of June, 2010.

/s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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