Kelly v. Keller (INMATE 3)

Filing 13

MEMORANDUM OPINION: Accordingly, the court finds that the 28 U.S.C. § 2241 petition for habeas corpus relief should be DISMISSED without prejudice because this case is not ripe for review and because of Kellys failure to exhaust administrative remedies in accordance with the procedures established by the BOP.A separate final judgment will be entered. Signed by Honorable Wallace Capel, Jr. on 6/14/2010. (dmn)

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 K E N N E T H KELLY, P e titio n e r, v. J.A. KELLER, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 2:10cv218-WC (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, Kenneth Kelly ("Kelly"), is currently incarcerated at the Federal Prison C a m p in Montgomery, Alabama, serving a 120-month sentence, imposed in 2003 by the U n ite d States District Court for the Northern District of Alabama, upon his conviction for c o n sp ira c y to possess with intent to distribute a mixture or substance containing a detectable a m o u n t of cocaine base, and aiding and abetting the distribution of a mixture or substance c o n ta in in g a detectable amount of cocaine base. In his petition, Kelly claims that the Federal B u re a u of 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 (1) Kelly's habeas petition is not ripe for court review, because at the time K e lly 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 Kelly 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. 9.) In response, Kelly has filed a traverse. (Doc. No. 11.) II. DISCUSSION

B y his petition, Kelly 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

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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 March 4, 2010, K e lly's projected release date was May 23, 2012. At the time of filing, then, Kelly was not c lo s e 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 Kelly'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 & Kelly v. Regan, 453 U.S. 654, 689 (1981). Under the c irc u m sta n c e s , Kelly's case is not ripe for review. M o re o v e r, even if the BOP makes a determination regarding Kelly's RRC placement, K e l ly must his exhaust his administrative remedies if he wishes to challenge that d e te rm in a tio n . The pleadings before this court reflect that Kelly has not attempted to pursue re lie f via the BOP's administrative remedies. Kelly maintains that exhaustion should be e x c u se d because it would be futile to pursue the BOP's administrative remedies. (Doc. No. 1 at pp. 14-15.) In support, he notes that BOP Director Harley Lappin believes that prisoners p la c ed in an RRC for longer than six months "tend 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

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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). K e lly has not exhausted the three-level administrative remedy process, set forth at 28 C .F .R . §§ 542.10-.15, with regard to his claims concerning his eligibility for placement in a n 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, K e lly has failed to establish that it would be futile to pursue the BOP's administrative re m e d ie s. 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

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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 B O P is required by statute and its own regulations to consider Kelly for placement in an RRC f o r up to 12 months, Kelly 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). Kelly 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 r o 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). Kelly has not established extraordinary circumstances ju s tif yin g waiver of the exhaustion requirement. 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 finds that the 28 U.S.C. § 2241 petition for habeas corpus relief s h o u ld be DISMISSED without prejudice because this case is not ripe for review and because o f Kelly's failure to exhaust administrative remedies in accordance with the procedures

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e s ta b lis h e d by the BOP. A separate final judgment will be entered. D o n e this 14 th day of June, 2010.

/s /W a llc e Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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