Gipson v. Keller (INMATE 3)

Filing 18

MEMORANDUM OPINION. Signed by Honorable Terry F. Moorer on 7/9/2010. (wcl, )

Gi p s on v. Keller (INMATE 3)(CONSENT)

Do c. 18

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 O R V IN C. GIPSON, P e titio n e r, v J .A . KELLER, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 2:10cv240-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, Orvin C. Gipson ("Gipson"), is currently incarcerated at the Federal P r is o n Camp in Montgomery, Alabama, serving a 60-month sentence, imposed in 2009 by th e United States District Court for the Southern District of Mississippi, upon his conviction f o r possession with intent to distribute crack cocaine. In his petition, Gipson claims that the F ed era l Bureau of Prisons ("BOP") has failed to properly consider the mandated statutory c rite ria in determining the duration of his placement in a residential reentry center ("RRC") f o r the final portion of his federal sentence, in violation of the Second Chance Act.

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In compliance with this court's orders, the respondent has filed an answer in which h e argues that (1) Gipson's habeas petition is not ripe for court review, because at the time G ip s o n 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 Gipson 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. 10.) II. DISCUSSION

B y his petition, Gipson 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 March 9, 2010,

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G ip s o n 's projected release date was May 23, 2012, assuming he receives all good conduct tim e available. At the time of filing, then, Gipson was not close enough to the end of his s e n te n c e to qualify under the Second Chance Act for consideration for placement in an RRC fo r a portion of the remainder of his sentence. There is no indication in the pleadings before th is court that an assessment regarding Gipson's placement in an RRC, or the duration of that p lac e m e n t, has been made. Ripeness becomes an issue when a case is anchored in future e v e n ts that may not occur as anticipated, or at all. See Pac. Gas & Elec. Co. v. State Energy R es. Conservation & Dev. Comm'n, 461 U.S. 190, 200-201 (1983); Dames & Gipson v. R e g a n , 453 U.S. 654, 689 (1981). Under the circumstances, Gipson's case is not ripe for re v ie w . M o re o v e r, even if the BOP makes a determination regarding Gipson's RRC p la c em e n t, Gipson must his exhaust his administrative remedies if he wishes to challenge th a t determination. The pleadings before this court reflect that Gipson has not attempted to p u rs u e relief via the BOP's administrative remedies. Gipson 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

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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). G ip s o n 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, G ip s o n 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 Gipson for placement in an R R C for up to 12 months, Gipson 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). Gipson 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). Gipson 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 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 Gipson's failure to exhaust administrative remedies in accordance with the

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p ro c e d u re s established by the BOP. A separate final judgment will be entered. D o n e this 9 th day of July, 2010.

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

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