Blocker v. Keller (INMATE3)

Filing 14

MEMORANDUM OPINION that the 28 U.S.C. § 2241 petition for habeas corpus relief should be DISMISSED without prejudice because of Blocker's failure to exhaust administrative remedies in accordance with the procedures established by the BOP. Signed by Honorable Terry F. Moorer on 6/14/2010. (br, )

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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 D E D R IC BLOCKER, ) Petitioner, v J.A. KELLER, Respondent. ) ) ) ) ) ) ) ) Civil Action No. 2:10cv209-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.) Pursuant to 28 U.S.C. 636(c)(1) and M.D. Ala. LR 73.1, th e parties have consented to the United States Magistrate Judge conducting all proceedings in this case and ordering the entry of final judgment. I. BACKGROUND T h e petitioner, Dedric Blocker ("Blocker"), is currently incarcerated at the Federal P r is o n Camp in Montgomery, Alabama, serving a 66-month sentence, imposed in 2007 by th e United States District Court for the Northern District of Alabama, upon his conviction f o r possession with intent to distribute marijuana and carrying a firearm during and in re la tio n to a drug trafficking crime. In his petition, Blocker claims that the Federal Bureau o f Prisons ("BOP") has failed to properly consider the mandated statutory criteria in d e te rm in in g the duration of his placement in a residential reentry center ("RRC") for the final p o rtio n of his federal sentence, in violation of the Second Chance Act. In compliance with this court's orders, the respondent has filed an answer in which h e argues that Blocker's petition should be dismissed because Blocker has not exhausted a d m in is tra tiv e remedies with respect to his claims. (Doc. No. 11.) II. DISCUSSION B y his petition, Blocker 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).1 The pleadings before this court reflect that the B O P has conducted an assessment of Blocker's suitability for RRC placement and has re c o m m e n d e d that he be placed in an RRC for the final six months of his sentence. The p lead ing s further reflect that Blocker has not attempted to pursue relief from the BOP's When he filed the instant petition, on March 8, 2010, Blocker's projected release date was October 8, 2011. 2 1 p la c em e n t determination via the BOP's administrative remedies. For his part, Blocker m a in ta in s that exhaustion should be excused because, he says, it would be futile to pursue th e BOP's administrative remedies. (Doc. No. 1 at pp. 14-15.) In support, he notes that BOP D ire c to r Harley Lappin believes that prisoners placed in an RRC for longer than six months " te n d to do worse rather than better." (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 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). B lo c k e r 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 placement in an RRC. 3 T h e re f o re , he has not satisfied the requirement that he exhaust his available administrative re m e d ie s before seeking habeas corpus relief in federal court. Moreover, Blocker has failed to establish that it would be futile to pursue the BOP's administrative remedies. Despite B O P Director Lappin's personal opinion, the BOP's regulations, amended after passage of th e Second Chance Act, provide for placement in an RRC for up to 12 months. Relying on th e Second Chance Act and 28 C.F.R. 570.21, the Eleventh Circuit has determined that an in m a te "may immediately seek [ ] individual determination [for placement in an RRC up to 1 2 months] under the administrative procedures currently available to him." Woodward v. G r a y e r, Case No. 08-12851, *7 (11 th Cir. Dec. 23, 2008). Accordingly, as the BOP is re q u ire d by statute and its own regulations to consider Blocker for placement in an RRC for u p to 12 months, Blocker has failed to demonstrate that it would be futile to exhaust the B O P 's available administrative remedies. See Hayes v. Grayer, Case No. 1:09cv896-RWS 2 0 0 9 WL 1473929 (N.D. Ga. May 26, 2009). B lo c k e r also complains that he will be delayed in vindicating his rights if he complies w ith the BOP's administrative remedies program and that the time required to exhaust a d m in istra tiv e remedies could deprive him of the full 12 months he alleges he is entitled to s e rv e in an RRC. However, there are deadlines incorporated into the administrative remedies p ro g ra m that prevent the BOP from unreasonably delaying consideration of a request for re v ie w and any appeal therefrom. See, e.g., 28 C.F.R. 542.18 (setting forth BOP response tim e s at various levels of review). Blocker has not established extraordinary circumstances 4 ju s tif yin g waiver of the exhaustion requirement. Therefore, Blocker's petition should be d i sm is s e d because of his failure to exhaust administrative remedies. III. CONCLUSION A c c o rd in g ly, the court concludes that the 28 U.S.C. 2241 petition for habeas corpus r e lie f should be DISMISSED without prejudice because of Blocker's failure to exhaust a d m in is tra tiv e remedies in accordance with the procedures 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 5

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