Keesee v. Apker

Filing 26

ORDER: IT IS ORDERED that the findings and recommendations made by Magistrate Judge Estrada in his 9/21/11, 25 Report and Recommendation are ADOPTED, except with respect to the R&Rs exhaustion analysis as set forth above. The 21 Motion Clarifying Summary Judgment, and the 1 Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2241 are DENIED and this action is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to enter judgment accordingly and close this case. Signed by Judge A Wallace Tashima on 1/25/12.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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TRAVIS EUGENE KEESEE,

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Petitioner,
vs.

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CRAIG APKER, Complex Warden,
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Respondent.
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No. CV 10-416 AWT
ORDER

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In this 28 U.S.C. § 2241 habeas petition, Travis Eugene Keesee challenges the manner

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in which the BOP assessed his eligibility for admission to a Residential Drug Abuse

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Treatment Program (“RDAP”), the successful completion of which would entitle Keesee to

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a sentence reduction of up to twelve months, see 18 U.S.C. § 3621(e)(2). Keesee is currently

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serving a 15-year sentence of incarceration for firearm possession by an armed career

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criminal. Doc. 1 at 1. In May 2010, he was deemed ineligible for the RDAP on the basis of

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a regulation, promulgated by the Bureau of Prisons (“BOP”) with an effective date of March

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16, 2009, that precludes from eligibility persons whose current offense involves the

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possession of a firearm. Doc. 1 Ex. 1. Keesee claims that his eligibility should not have

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been determined on the basis of that regulation, because he applied for RDAP consideration

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before March 16, 2009. Doc. 1 at 16. He also alleges that the BOP failed to give him fair

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notice of the rules, Doc. 1 at 17-19, and that the BOP’s review procedures constitute “forum

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shopping,” Doc. 1 at 19-20.

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Keesee filed this petition on July 9, 2010, while in custody at the Federal Satellite

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Prison Camp in Tucson, Arizona. Doc. 1; Doc. 6 Att. 6 ¶ 2. The respondent answered the

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petition on December 6, 2010, Doc. 11, and the next month Keesee filed his reply, Doc. 14.

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Subsequently, Keesee filed a “Motion to Stipulate to Consent to Exercise of Jurisdiction By

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United States Magistrate Judge,” Doc. 16. After the respondent declined to enter into such

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a stipulation, Keesee moved for summary judgment, Doc. 19. Magistrate Judge Hector C.

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Estrada, to whom the action had been referred for a Report and Recommendation (“R&R”),

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construed this motion as a response to the government’s objection to the magistrate’s

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exercise of jurisdiction in this case for all purposes, pursuant to 28 U.S.C. § 636(c), and

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denied the motion. Since then, Keesee has moved to “clarify” his summary judgment

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motion, Doc. 21; this motion requests entry of summary judgment because the answer “failed

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to appropriately respond, [and] thus [constituted] a waiver of affirmative defense,” Doc. 21

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at 2.

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In September 2011, Magistrate Judge Estrada issued an R&R, Doc. 25, recommending

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the denial of Keesee’s motion, Doc. 21, and his petition, Doc. 1. Neither party filed an

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objection to the R&R. In such circumstances, the Court will modify or set aside only those

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portions of the R&R that are clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1);

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Fed. R. Civ. P. 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc).

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Having conducted an independent review of the record, the Court finds it a close

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question whether Keesee, who admits he did not exhaust his administrative remedies before

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filing his petition, should be excused from the exhaustion requirement. The Court disagrees

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with the R&R’s implication, see R&R at 6, that exhaustion would be futile simply because

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the government has disputed the merit of Keesee’s claims in this litigation. “If a litigation

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position is enough to show futility, . . . then the futility exception would swallow the

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exhaustion doctrine.” Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010).
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Still, the government has not disputed Keesee’s claim that there would be insufficient time

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to exhaust his administrative remedies without effectively mooting the lawsuit. See R&R at

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6. Given that effective concession, exhaustion was likely futile. In any event, the Court

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concludes that the question need not be answered here because the petition asserts no

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colorable claim. See R&R at 6; cf. Granberry v. Greer, 481 U.S. 129, 135 (1987) (in the

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context of a 28 U.S.C. § 2254 habeas petition, stating that “if it is perfectly clear that the

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applicant does not raise even a colorable federal claim,” the court may deny the petition on

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the merits without reaching the exhaustion question).

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The Court concludes that in all other respects the R&R is not clearly erroneous or
contrary to law, and therefore adopts the remainder of the R&R in full.

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Accordingly, IT IS ORDERED that the findings and recommendations made by

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Magistrate Judge Estrada in his September 21, 2011, Report and Recommendation (Doc. 25)

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are ADOPTED, except with respect to the R&R’s exhaustion analysis as set forth above.

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The Motion Clarifying Summary Judgment (Doc. 21) and the Petition for Writ of Habeas

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Corpus brought pursuant to 28 U.S.C. § 2241 (Doc. 1) are DENIED and this action is

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DISMISSED WITH PREJUDICE. The Clerk of Court is directed to enter judgment

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accordingly and close this case.

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DATED this 25th day of January, 2012.

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