Lewis v. Outlaw

Filing 11

MEMORANDUM OPINION AND ORDER dismissing, with prejudice, 1 Marcus J Lewis's Petition for Writ of Habeas Corpus. Signed by Magistrate Judge Beth Deere on 3/23/10. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION M A R C U S J. LEWIS, R e g . # 39030-179 V S. CASE NO.: 2:09CV00176 BD PETITIONER

T .C . OUTLAW, Warden, Federal Correctional Complex, F o r r e st City, Arkansas M E M O R A N D U M OPINION AND ORDER

R ESPON D EN T

P e titio n e r Marcus J. Lewis filed this pro se petition for writ of habeas corpus (d o c k e t entry #1) under 28 U.S.C. § 2241, alleging that the Bureau of Prisons ("BOP") fa ile d to comply with the Second Chance Act when considering Petitioner's placement in a Residential Reentry Center ("RRC"). Respondent filed a Response (#7) to the petition a n d Petitioner replied (#8). For the following reasons, the petition is DENIED and D IS M IS S E D with prejudice. I. B ackground P e titio n e r is currently serving a seventy-month term of imprisonment for being a fe lo n in possession of a firearm. His projected release date is April 30, 2011. Petitioner alleges the BOP violated the Second Chance Act by ruling him in e lig ib le for transfer to a RRC. Petitioner requests that this Court set aside and void the B O P decision finding Petitioner ineligible for RRC placement (#1, p. 4). The record shows that the BOP assessed Petitioner for RRC transfer and d e te rm in e d that he would be recommended for 150 to 180 days of RRC placement (#7-2).

Petitioner was not ruled ineligible for RRC placement. Accordingly, it appears P e titio n e r's requested relief is moot. In the reply, however, Petitioner clarifies his position and argues that the BOP fa ile d to properly consider the factors in 18 U.S.C. § 3621(b) when denying RRC p la c e m e n t beyond the 150 to 180 day recommendation (#8, p. 5). Petitioner challenges th e BOP's decision not to give him the maximum twelve months of RRC placement a llo w e d by the Second Chance Act. II. D is c u s s io n P e titio n e r contends the BOP violated 18 U.S.C. § 3621(b) and 18 U.S.C. § 3624(c), as amended by the Second Chance Act, when considering his placement in a R R C .1 Respondent argues that Petitioner failed to exhaust his administrative remedies a n d the BOP properly determined Petitioner's prerelease RRC placement. A. E x h a u s tio n of Administrative Remedies

R e sp o n d e n t contends the petition should be dismissed because Petitioner failed to e x h a u s t his administrative remedies regarding his RRC placement.2 Petitioner states that h e exhausted all available, non-futile administrative remedies.

The Second Chance Act extended the maximum amount of time that the BOP m a y place an inmate in a RRC from 180 days to twelve months. 18 U.S.C. § 3624(c)(1). Respondent acknowledges that BOP staff have performed the required RRC a s s e s sm e n t recommending Petitioner for a 150 to 180 day placement (#7-2). 2
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Petitioners are generally required to exhaust available administrative remedies b e fo re filing a petition under 28 U.S.C. § 2241. See United States v. Chappel, 208 F.3d 1 0 6 9 (8th Cir.2000). Exhaustion, however, is not required if it would be futile. Thurman v . Sanders, No. 2:06CV00114-SWW-HDY, 2006 WL 2372493 at *2 (E.D.Ark. Aug. 14, 2 0 0 6 ) (citing Ortiz v. Fleming, 2004 WL 389076 (N.D. Texas 2004)). U n d e r 28 C.F.R. § 542.13(a), an inmate aggrieved by an action of the BOP must firs t present the issue informally to staff. If he or she is dissatisfied with the result of the in fo rm a l process, the inmate may then pursue a three-step formal grievance process. In th e formal process, the prisoner appeals to the Warden, then to the Regional Director, and la s t, to the Office of General Counsel. The inmate's administrative remedies have not b e e n exhausted until his grievance has been properly filed and denied at each step. See T h u r m a n v. Sanders, No. 2:06CV00114-SWW-HDY, 2006 WL 2372493 at *2 (E.D.Ark. A u g . 14, 2006). R e g a rd in g failure to exhaust, Petitioner argues that the BOP never responded to his re q u e s t for early RRC placement. BOP records show that Petitioner filed an "inmate re q u e s t to staff" regarding RRC placement on May 13, 2009 (#1, p. 13). The response is d a te d May 23, 2009. On June 1, 2009, Petitioner filed an "informal complaint" addressed to the Regional Director and stamped received on June 12, 2009 (#1, p. 7). It appears the D e p a rtm e n t of Justice responded to this "correspondence" and encouraged Petitioner to w o rk with institutional staff and to seek formal review if necessary (#1, p. 6). The re s p o n s e date is June 25, 2009. 3

Petitioner filed an inmate request to staff regarding transfer to a lower security in s titu tio n on June 22, 2009 (#1, p. 22). The response, dated June 25, 2009, states that P e titio n e r's next review would occur on October 25, 2009. Petitioner filed a request for a d m in is tra tiv e remedy regarding RRC placement with the Warden, dated June 12, 2009, b u t not received until July 13, 2009 (#1, p. 19).3 This request was rejected as untimely (# 1 , p. 20). Petitioner appealed to the regional office, although it is not clear which g rie v a n c e he appealed, and the appeal was rejected as "not sensitive" (#1, p. 26). Petitioner then filed another inmate request to staff regarding RRC placement on S e p te m b e r 1, 2009 (#1, p. 28). There is no response provided for this request. The Administrative Remedy Generalized Retrieval printout provided by R e sp o n d e n t shows that Petitioner attempted to file only one RRC related grievance (#72 ). Petitioner has provided evidence of multiple attempted filings (#1, p. 6-7, 13, 19-28). Respondent does not attempt to explain the apparent discrepancies. Given these discrepancies, the Court cannot dismiss this petition on the current re c o rd for lack of administrative exhaustion. Considering the time limitations involved w ith Petitioner's claim, initiating the grievance process at this point likely would be fu tile . In addition, Respondent has not asserted that Petitioner still has non-futile avenues a v a ila b le for administrative exhaustion. Accordingly, a discussion on the merits is w a rra n te d . See Lueth v. Beach, 498 F.3d 795, 797 n. 3 (8th Cir.2007), cert. denied, 128

This appears to be the only relevant administrative remedy request recorded by th e BOP's Administrative Remedy Generalized Retrieval system (#7-2, p. 3-4). 4

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S.Ct. 927 (2008) (a court may address the merits of a petition despite alleged failure to e x h a u s t administrative remedies because the "exhaustion prerequisite for filing a 28 U .S .C . § 2241 petition is judicially created, not jurisdictional"). B. R e s id e n tia l Reentry Center Placement

The BOP is responsible for the placement and transfer of federal inmates under 18 U .S .C . § 3621. When considering an inmate for prerelease transfer to a community c o rre c tio n a l facility, or RRC, the BOP must ensure the placement is: (1) conducted in a m a n n e r consistent with 18 U.S.C. § 3621(b); (2) determined on an individual basis; and (3 ) of sufficient duration to provide the inmate with the greatest likelihood of successful re in te g ra tio n into the community. 18 U.S.C. § 3624(c)(6)(A)-(C). When determining p la c e m e n t consistent with 18 U.S.C. § 3621(b), the BOP may consider: (1) the resources o f the facility contemplated; (2) the nature and circumstances of the offense; (3) the h is to ry and characteristics of the prisoner; (4) any statement or recommendation by the s e n te n c in g court; and (5) any relevant Sentencing Commission policy statement. 18 U .S .C . § 3621(b)(1)-(5). When determining RRC placement, the BOP is required only to consider the re q u e s t "in good faith." Miller v. Whitehead, 527 F.3d 752, 758 (8th Cir. 2008) (quoting F u lts v. Sanders, 442 F.3d 1088, 1089 (8th Cir. 2006)). The BOP retains broad discretion u n d e r 18 U.S.C. § 3621(b), and courts review the BOP's decisions for abuse of its " s u b s ta n tia l discretion." Fegans v. United States, 506 F.3d 1101, 1102-1105 (8th Cir. 2 0 0 7 ). 5

Petitioner argues the BOP failed to conduct an individualized assessment of his R R C placement needs. While the responses on Petitioner's RRC needs assessment form w e re brief, the BOP is not required to conduct a detailed RRC placement analysis. Miller, 527 F.3d at 758. Petitioner has not established that the BOP failed to consider re le v a n t statutory factors when denying his request for maximum RRC placement. Petitioner complains the BOP failed to consider his medical needs, minimal family s u p p o rt, lack of prior work history, and financial problems (#8, p. 8-9). The BOP did c o n s id e r, however, Petitioner's offense, prison conduct, education, and funds available to P e titio n e r (#7-2). Petitioner's program review noted his work performance, incident re p o rts , and release preparation participation (#1, p. 9-11). The RRC needs assessment fo rm also referenced Petitioner's release plan (#7-2). There is no evidence the BOP acted o th e r than in good faith when considering Petitioner's RRC placement needs. Petitioner argues there is a presumption in favor of inmates receiving a full twelve m o n th s of RRC placement, and the BOP failed to overcome this presumption. This is not s o . The BOP's current policy, Program Statement 7310.04, states that RRC needs can u s u a lly be met by a placement of six months or less, with placement beyond 180 days re q u irin g "extraordinary justification." The Eighth Circuit has found this extraordinary ju s tific a tio n requirement to be a legitimate standard, consistent with 18 U.S.C. § 3621(b), th a t the BOP may use when considering a request for extended RRC placement. Miller, 5 2 7 F.3d at 758-759. This policy is a valid exercise of the BOP's broad discretion under 1 8 U.S.C. 3621(b) and 18 U.S.C. 3624(c). While Petitioner made an argument for 6

maximum RRC placement, there is no indication the BOP abused its discretion when d e te rm in in g that 150 to 180 days of RRC placement would be sufficient for Petitioner. There is nothing in the applicable statutes or case law that entitles Petitioner to R R C placement for a specific period of time, much less for the maximum twelve months. Respondent was only required to individually consider Petitioner for RRC placement in a m a n n e r consistent with 18 U.S.C. § 3621(b). Although Petitioner was recommended for le s s than twelve months of RRC placement, it appears the BOP's decision was based on its individual consideration of the factors identified in 18 U.S.C. § 3621(b). III. C o n c lu s io n P e titio n e r has not shown that the BOP abused its discretion or failed to properly c o n s id e r his RRC placement needs. Accordingly, Marcus J. Lewis's Petition for Writ of H a b e a s Corpus (#1) is DISMISSED with prejudice. IT IS SO ORDERED this 23rd day of March, 2010.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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