Perez v. United States of America (INMATE3) (CONSENT)

Filing 21

MEMORANDUM OPINION that the 28 U.S.C. § 2241 petition for habeas corpus relief should be DISMISSED without prejudice because Perez has failed to exhaust administrative remedies in accordance with the procedures established by the BOP. Signed by Honorable Judge Charles S. Coody on 7/11/2011. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ERICSON PEREZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No.2:11cv09-CSC
(WO)

MEMORANDUM OPINION
This is a pro se petition for a writ of habeas corpus by a federal prisoner
pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) Pursuant to 28 U.S.C. § 636(c)(1) and
M.D. Ala. LR 73.1, the parties consented to having the United States Magistrate
Judge conduct all proceedings in this case and order the entry of final judgment.
I.

BACKGROUND

The petitioner, Ericson Perez (“Perez”), is currently incarcerated at the Federal
Prison Camp in Montgomery, Alabama, serving a 22-month sentence, imposed in
2010 by the United States District Court for Southern District of Florida, upon his
conviction for loan-application fraud. In his petition, Perez claims that the Federal
Bureau of Prisons (“BOP”) has failed to properly consider the mandated statutory
criteria in determining the duration of his placement in a residential reentry center

(“RRC”) for the final portion of his federal sentence, in violation of the Second
Chance Act.

When he filed his petition, Perez’s projected release date was

November13, 2011, assuming he receives all good conduct time available.
In compliance with this court’s orders, the respondent has filed an answer
arguing that Perez’s petition should be dismissed because Perez has not exhausted
administrative remedies with respect to his claims. (Doc. No. 16 at pp. 3-8.) In
addition, the respondent contends that Perez was properly considered, in compliance
with all statutory requirements, for pre-release placement in an RRC. (Id. at pp. 8-11.)
II.

DISCUSSION

By his petition, Perez seeks to have the BOP consider him for placement in an
RRC for the final portion of his sentence, for the maximum amount of time allowed,
pursuant to the authority of the Second Chance Act of 2007. (Doc. No. 1) He
apparently requests that this court issue an order directing the BOP to consider him
on an individualized basis using the five factors set forth in 18 U.S.C. § 3621(b), plus
take into account the language in 18 U.S.C. § 3624 (c)(6)(C), granting him the
maximum amount of time in the RRC to provide the greatest likelihood of successful
reintegration into the community.
The Second Chance Act amended 18 U.S.C. §§ 3621(a) and 3624(c). Pursuant
to the Second Chance Act, the BOP staff is required to review inmates for RRC
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placement 17 to 19 months before their projected release date, and inmates are to be
individually considered using the five factors listed in § 3621(b). The pleadings and
exhibits before this court reflect that the BOP has conducted an assessment of Perez’s
suitability for RRC placement and has recommended that he be placed in an RRC for
the final 120 days of his sentence. The pleadings further reflect that Perez has not
attempted to pursue relief from the BOP’s placement determination via the BOP’s
administrative remedies. For his part, Perez maintains that exhaustion should be
excused because, he says, it would be futile to pursue the BOP’s administrative
remedies. (Doc. No. 1 at pp. 6-8.)
It is well settled in this circuit that a federal prisoner who requests habeas
corpus relief under 28 U.S.C. § 2241 must first exhaust his administrative remedies
before seeking relief from this court. See Skinner v. Wiley, 335 F.3d 1293, 1295 (11th
Cir. 2004); Gonzalez v. United States, 959 F.2d 211 (11th Cir. 1992). The BOP has
established regulations that set forth the procedures that a prisoner must follow before
seeking relief from a district court. See 28 C.F.R. §§ 542.10 et seq.; United States v.
Lucas, 898 F.2d 1554, 1556 (11th Cir. 1990). These regulations govern formal review
of inmate complaints relating to any aspect of 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 (11th Cir. 1991). If, and only if, an
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inmate has pursued his administrative remedies may he seek relief in federal court.
Id. “An inmate has not fully exhausted his administrative remedies until he has
appealed through all three levels [of the BOP's administrative remedies].” Irwin v.
Hawk, 40 F.3d 347, 349 n.2 (11th Cir. 1994).
Perez 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 an RRC. Therefore, he has not satisfied the requirement that he exhaust
his available administrative remedies before seeking habeas corpus relief in federal
court.
Perez maintains that exhaustion should be excused in his case because it would
be futile to pursue the BOP’s administrative remedies. (Doc. No. 1 at pp. 6-8.) He
suggests that he will be delayed in vindicating his rights if he complies with the
BOP’s administrative remedies program and that the time required to exhaust
administrative remedies would deprive him of the full time he alleges he is entitled
to serve in an RRC.

However, there are deadlines incorporated into the

administrative remedies program that prevent the BOP from unreasonably delaying
consideration of a request for review and any appeal therefrom. See, e.g., 28 C.F.R.
§ 542.18 (setting forth BOP response times at various levels of review). Perez has
not established extraordinary circumstances justifying waiver of the exhaustion
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requirement.

Therefore, dismissal of Perez’s petition for failure to exhaust

administrative remedies is warranted.
III.

CONCLUSION

Accordingly, the court finds that the 28 U.S.C. § 2241 petition for habeas
corpus relief should be DISMISSED without prejudice because Perez has failed to
exhaust administrative remedies in accordance with the procedures established by the
BOP.
A separate final judgment will be entered.
Done this 11th day of July, 2011.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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