Webb v. Outlaw

Filing 12

RECOMMENDED DISPOSITION recommending the District Court dismiss 1 Petition for Writ of Habeas Corpus without prejudice to permit the Petitioner to pursue his administrative remedies. Objections to R&R due by 12/18/2008. Signed by Magistrate Judge Beth Deere on 12/3/08. (hph)

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION

F R E D E R IC K BENET WEBB, JR. R e g # 32647-044 VS. NO. 2:08-CV-00147-WRW-BD

PETITIONER

T .C . OUTLAW, Warden, Federal Correctional Complex, F o r r e s t City, Arkansas

R ESPO N D EN T

R E C O M M E N D E D DISPOSITION

I.

P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District

Ju d g e William R. Wilson, Jr. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact.

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M a il your objections and "Statement of Necessity" to: Clerk, United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B a c k gro u n d : P e titio n e r Frederick Benet Webb, Jr. is currently serving a federal sentence at the F e d e ra l Correctional Complex in Forrest City, Arkansas ("FCC-Forrest City"). Petitioner b rin g s this petition for writ of habeas corpus (#1) under 28 U.S.C. § 2241 challenging the m a n n e r in which Respondent is executing his sentence. Specifically, Petitioner claims th a t Respondent improperly removed him from the Bureau of Prisons ("BOP") R e sid e n tia l Drug Abuse Program ("RDAP") and, as a consequence, he is no longer e lig ib le to earn credit toward early release. Respondent contends the case should be dismissed because of Petitioner's failure to exhaust his administrative remedies. For the reasons that follow, the Court re c o m m e n d s that the District Court dismiss the petition without prejudice to allow P e titio n e r the opportunity to fully exhaust his administrative remedies. I I I. E x h a u s tio n of Administrative Remedies: T h e BOP offers the RDAP to inmates identified to have a substance abuse p ro b le m . As an incentive for successful completion of the program, Congress enacted 18 U .S .C . § 3621(e), which allows the BOP to reduce nonviolent offenders' sentences by up to one year after completion of the program. 18 U.S.C. § 3621(e)(2)(B). The BOP has 2

b ro a d authority, under the federal regulations, to manage the drug abuse treatment p ro g ra m s . See 28 C.F.R. § 550.56(d)(2) (giving the drug abuse treatment coordinator the a u th o rity to remove an inmate from a program if the inmate behaves disruptively). Additionally, the BOP is responsible for computing any sentence credits for in m a te s who complete the RDAP. United States v. Wilson, 503 U.S. 329, 335, 112 S.Ct. 1 3 5 1 (1992). Prisoners are entitled to administrative review of the computation of their c re d its by the BOP under the procedure set forth in 28 C.F.R. §§ 542.10-542.16. After p ro p e rly exhausting administrative remedies, an inmate may seek judicial review by filing a habeas corpus petition under 28 U.S.C. § 2241. Wilson, 503 U.S. at 335, 112 S.Ct. 1 3 5 1 ; United States v. Pardue, 363 F.3d 695, 699 (8th Cir. 2004). The exhaustion re q u ire m e n t may be waived if the prisoner shows that attempting to exhaust would be f u tile . In this case, Petitioner claims that because Respondent has removed him from the R D A P , he will not be eligible to earn credits toward a reduced sentence. Petitioner a tta c h e s to his Petition his informal grievances seeking readmission to the RDAP. Petitioner acknowledges, however, that he has not fully exhausted his administrative rem ed ies. (#1 at p. 2, 7-28) In response to the Petition, Respondent attaches a declaration from James D. C r o o k . Mr. Crook, a supervisory attorney with the BOP, explains that the BOP has a th re e -s te p administrative process set forth in 28 C.F.R. §§ 542.10-542.16 that inmates

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m u st complete before bringing most habeas cases. Mr. Cook states that, according to B O P records, Petitioner has completed the first two steps of the administrative process by f ilin g grievances at the institutional and regional levels, but has not filed an appeal of the R e g io n a l Director's response with the Director of National Inmate Appeal in the General C o u n s e l's office in Washington, D.C. in order to fully complete the process. Petitioner claims that any attempt to follow the formal grievance procedure at this p o in t would be futile because the warden has "already made his decision to side with the R D A P staff" and is making the remaining steps in the administrative process " u n a v a i l a b le ." Petitioner may believe that the administrative process is futile. However, BOP re c o rd s show that Petitioner has been able to move beyond the institutional level of the g rie v a n ce process to file a grievance with the Regional Director. If he is not satisfied w ith the decision of the Regional Director, he may file a grievance with the National D ire c to r of Inmate Appeals. In his reply to the Respondent's answer, Petitioner argues that the Prison Litigation R e f o rm Act, ("PLRA") does not apply to habeas proceedings, and, consequently, he is not re q u ire d to exhaust his administrative remedies. The premise of this argument is correct. The PLRA does not apply to habeas corpus cases. See Goodwin v. Cruz, No. 07-4209, 2 0 0 7 WL 3375791, at *2 (D.Minn. Nov. 8, 2007) (citing Skinner v. Wiley, 355 F.3d 1293, 1 2 9 4 (11th Cir.), cert. denied, 541 U.S. 1036 (2004)). The conclusion that Petitioner has

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r e a c h e d , however, is incorrect. Even though the PLRA does not apply to habeas cases, f e d era l inmates still are required to exhaust their administrative remedies under lo n g s ta n d in g federal case law, including the Eighth Circuit cases cited above, which p re d a te the PLRA. Id. These cases confirm that BOP should be permitted an opportunity to fully assess Petitioner's grievance regarding his removal from the RDAP and his e lig ib ility for credit toward early release before a federal court intervenes. See United S ta te s v. Chappel, 208 F.3d 1069, 1069 (8th Cir. 2000) (per curiam) (district court did not e rr in denying a federal prisoner's motion seeking credit against his sentence because the p ris o n e r had not exhausted his administrative remedies) (citing Kendrick v. Carlson, 995 F .2 d 1440, 1447 (8th Cir. 1993) (federal prisoners seeking credit against a sentence must e x h a u s t their administrative remedies before filing a habeas petition)). Finally, the Court notes that if Petitioner is not satisfied after completing the a d m in i str a tiv e process, a habeas petition alleging a violation of the due process clause w ill likely be futile. The Constitution does not itself afford a prisoner a liberty interest in a reduced sentence, and the United States Supreme Court has held that a convicted person h a s no constitutional or inherent right to be conditionally released before the expiration of a valid sentence. See Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 4 4 2 U.S. 1, 7, 99 S.Ct. 2100 (1979); see also Sandin v. Conner, 515 U.S. 472, 487, 115 S .C t. 2293 (1995) (possibility of early release is not a liberty interest).

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F u rth e r, 18 U.S.C. § 3621(e) provides that the BOP may reduce an inmate's s e n te n c e upon completion of the program. Under the statute, the BOP maintains d is c re tio n not to reduce the sentence. Accordingly, there is no vested liberty interest on w h ic h Petitioner can base a due process claim. See Staszak v. Romine, No. 99-2519, 2 0 0 0 WL 862836, at *1 (8th Cir. June 29, 2000) (affirming district court's dismissal of p e titio n for writ of habeas corpus for lack of a liberty interest where petitioner claimed his d u e process rights were violated when he was removed from a halfway house and work release program that was part of his drug abuse treatment program). IV . C o n c lu s io n : B ec au se Petitioner has not exhausted his administrative remedies, the Court re c o m m e n d s that the District Court dismiss the petition for writ of habeas corpus without p re ju d ic e to permit the Petitioner to pursue his administrative remedies. IT IS SO ORDERED this 3rd day of December, 2008.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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