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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 TRAVIS EUGENE KEESEE, 10 11 Petitioner, vs. 12 CRAIG APKER, Complex Warden, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-416 AWT ORDER 15 16 17 In this 28 U.S.C. § 2241 habeas petition, Travis Eugene Keesee challenges the manner 18 in which the BOP assessed his eligibility for admission to a Residential Drug Abuse 19 Treatment Program (“RDAP”), the successful completion of which would entitle Keesee to 20 a sentence reduction of up to twelve months, see 18 U.S.C. § 3621(e)(2). Keesee is currently 21 serving a 15-year sentence of incarceration for firearm possession by an armed career 22 criminal. Doc. 1 at 1. In May 2010, he was deemed ineligible for the RDAP on the basis of 23 a regulation, promulgated by the Bureau of Prisons (“BOP”) with an effective date of March 24 16, 2009, that precludes from eligibility persons whose current offense involves the 25 possession of a firearm. Doc. 1 Ex. 1. Keesee claims that his eligibility should not have 26 been determined on the basis of that regulation, because he applied for RDAP consideration 27 before March 16, 2009. Doc. 1 at 16. He also alleges that the BOP failed to give him fair 28 1 notice of the rules, Doc. 1 at 17-19, and that the BOP’s review procedures constitute “forum 2 shopping,” Doc. 1 at 19-20. 3 Keesee filed this petition on July 9, 2010, while in custody at the Federal Satellite 4 Prison Camp in Tucson, Arizona. Doc. 1; Doc. 6 Att. 6 ¶ 2. The respondent answered the 5 petition on December 6, 2010, Doc. 11, and the next month Keesee filed his reply, Doc. 14. 6 Subsequently, Keesee filed a “Motion to Stipulate to Consent to Exercise of Jurisdiction By 7 United States Magistrate Judge,” Doc. 16. After the respondent declined to enter into such 8 a stipulation, Keesee moved for summary judgment, Doc. 19. Magistrate Judge Hector C. 9 Estrada, to whom the action had been referred for a Report and Recommendation (“R&R”), 10 construed this motion as a response to the government’s objection to the magistrate’s 11 exercise of jurisdiction in this case for all purposes, pursuant to 28 U.S.C. § 636(c), and 12 denied the motion. Since then, Keesee has moved to “clarify” his summary judgment 13 motion, Doc. 21; this motion requests entry of summary judgment because the answer “failed 14 to appropriately respond, [and] thus [constituted] a waiver of affirmative defense,” Doc. 21 15 at 2. 16 In September 2011, Magistrate Judge Estrada issued an R&R, Doc. 25, recommending 17 the denial of Keesee’s motion, Doc. 21, and his petition, Doc. 1. Neither party filed an 18 objection to the R&R. In such circumstances, the Court will modify or set aside only those 19 portions of the R&R that are clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1); 20 Fed. R. Civ. P. 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 21 banc). 22 Having conducted an independent review of the record, the Court finds it a close 23 question whether Keesee, who admits he did not exhaust his administrative remedies before 24 filing his petition, should be excused from the exhaustion requirement. The Court disagrees 25 with the R&R’s implication, see R&R at 6, that exhaustion would be futile simply because 26 the government has disputed the merit of Keesee’s claims in this litigation. “If a litigation 27 position is enough to show futility, . . . then the futility exception would swallow the 28 exhaustion doctrine.” Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010). -2- 1 Still, the government has not disputed Keesee’s claim that there would be insufficient time 2 to exhaust his administrative remedies without effectively mooting the lawsuit. See R&R at 3 6. Given that effective concession, exhaustion was likely futile. In any event, the Court 4 concludes that the question need not be answered here because the petition asserts no 5 colorable claim. See R&R at 6; cf. Granberry v. Greer, 481 U.S. 129, 135 (1987) (in the 6 context of a 28 U.S.C. § 2254 habeas petition, stating that “if it is perfectly clear that the 7 applicant does not raise even a colorable federal claim,” the court may deny the petition on 8 the merits without reaching the exhaustion question). 9 10 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. 11 Accordingly, IT IS ORDERED that the findings and recommendations made by 12 Magistrate Judge Estrada in his September 21, 2011, Report and Recommendation (Doc. 25) 13 are ADOPTED, except with respect to the R&R’s exhaustion analysis as set forth above. 14 The Motion Clarifying Summary Judgment (Doc. 21) and the Petition for Writ of Habeas 15 Corpus brought pursuant to 28 U.S.C. § 2241 (Doc. 1) are DENIED and this action is 16 DISMISSED WITH PREJUDICE. The Clerk of Court is directed to enter judgment 17 accordingly and close this case. 18 19 DATED this 25th day of January, 2012. 20 21 22 23 24 25 26 27 28 -3-

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