Tensley v. Outlaw

Filing 10

MEMORANDUM OPINION AND ORDER granting in part and denying in part 2 Petitioner Timothy Tensley's Petition for Writ of Habeas Corpus; ordering Respondent to show cause why he should not immediately transfer Petitioner to a RRC, or home confinem ent, to serve the remainder of his prison term. Respondent must file this evidence within 10 days of the entry of this Order. If an assessment has not occurred, then it appears that the BOP has violated the Second Chance Act, along with its own regul ations. If this is the case, Respondent must immediately inform the Court of this oversight, complete the required assessment, and file evidence of the completed assessment, within 10 days of the entry of this Order. This case will remain open until Respondent has complied with this Order. Signed by Magistrate Judge Beth Deere on 7/2/10. (hph)

Tensley v. Outlaw

Doc. 10

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION T IM O T H Y TENSLEY, R e g . # 10203-003 V S. CASE NO. 2:10CV00014 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 Timothy Tensley filed this pro se petition for writ of habeas corpus (d o c k e t entry #2) 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 his request for home d e te n tio n or placement in a Residential Reentry Center ("RRC"). Respondent filed a R e sp o n s e (#5), to which Petitioner replied (#6). Petitioner also filed a supplement to his p e titio n (#9). For the following reasons, the petition is GRANTED in part and DENIED in part. I. B ackground P e titio n e r is currently serving a thirty-seven month term of imprisonment in the F e d e ra l Correctional Complex in Forrest City, Arkansas. According to Petitioner's s u p p le m e n t (#9), his projected release date is December 28, 2010. Petitioner alleges the BOP violated the Second Chance Act by denying his request fo r six-months' home detention or RRC placement. Petitioner seeks an immediate in ju n c tio n ordering the BOP to transfer him to an RRC. In the alternative, Petitioner

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requests the Court order the BOP to show cause why he should not serve the remainder of h is term in home detention or an RRC (#2, p. 23). Respondent argues that Petitioner failed to exhaust his administrative remedies and th a t the BOP properly determined Petitioner's prerelease RRC placement. In reply, P e titio n e r counters that exhaustion of administrative remedies would be futile. He c o n te n d s that the time necessary to fully exhaust would render his petition moot. Respondent did not address these points. II. D is c u s s io n A. E x h a u s tio n of Administrative Remedies

H a b e a s corpus petitioners are generally required to exhaust available a d m in is tra tiv e remedies before filing for relief under 28 U.S.C. § 2241. See United States v . Chappel, 208 F.3d 1069 (8th Cir.2000). Exhaustion, however, is not required if it w o u ld be futile. Thurman v. Sanders, No. 2:06CV00114-SWW-HDY, 2006 WL 2372493 a t *2 (E.D.Ark. Aug. 14, 2006) (citing Ortiz v. Fleming, 2004 WL 389076 (N.D. Texas 2 0 0 4 )). Petitioner argues that the Court should excuse his failure to exhaust because e x h a u s tio n would be futile and the timing of the BOP's administrative process would c a u s e him irreparable harm (#6). 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 dissatisfied with the result of the informal p ro c e s s , the inmate may then pursue a three-step formal administrative process. In the fo rm a l process, the prisoner appeals to the Warden, then to the Regional Director, and 2

last, to the Office of General Counsel. The inmate's administrative remedies are not d e e m e d exhausted until his grievance has been properly filed and denied at each step. See Thurman v. Sanders, No. 2:06CV00114-SWW-HDY, 2006 WL 2372493 at *2 (E .D .A rk . Aug. 14, 2006). A substantial amount of time is necessary to complete the administrative process. At the first formal step, the Warden has twenty days to consider a petitioner's appeal. At th e second step, the Regional Director has thirty days to consider an appeal. At the final s te p , the Office of General Counsel has forty days to consider the appeal. At each step, th e Warden, Regional Director, and General Counsel may grant themselves extensions of tw e n ty , thirty, and twenty days, respectively. These officials may grant themselves e x te n s io n s for any reason, and there is no provision for expedited consideration of P e titio n e r's placement request. Without extensions, it would take Petitioner a minimum o f ninety days to complete the administrative process. This does not include time n e c e s s a ry to prepare and deliver an appeal, or to receive responses to the appeal. With o n e extension at each level, the process would take one-hundred-- sixty days, which is in e x c e s s five months. B O P regulations require that officials conduct a Second Chance Act assessment b e tw e e n 17-19 months before a prisoner's projected release date. Miller v. Whitehead, 5 2 7 F.3d 752, 757-758 (8th Cir. 2008). This requirement would typically give a prisoner

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ample time to exhaust the administrative process after the assessment is completed. In th is case, however, neither party has identified the date of Petitioner's assessment.1 P e titio n e r noted that some form of review occurred on January 12, 2010, after he s u b m itte d a request for review on January 6, 2010 (#2, p. 25). Petitioner filed the pending p e titio n on February 1, 2010. If Respondent completed the required assessment on J a n u a ry 12, 2010, instead of 17-19 months prior to release, he would not have had a d e q u a te time to exhaust the administrative process. Denying this petition in favor of re q u irin g Petitioner to complete the administrative process would effectively moot his c la im . Accordingly, this Court will excuse the lack of complete exhaustion.2 G iv e n the circumstances of this case, the Court declines to dismiss this petition for la c k of administrative exhaustion. Considering the time limitations involved with P e titio n e r's claim, initiating the grievance process at this point would be futile. In a d d itio n , Respondent has not asserted that Petitioner still has non-futile avenues available fo r administrative exhaustion. Accordingly, a discussion on the merits is warranted. See L u e th v. Beach, 498 F.3d 795, 797 n. 3 (8th Cir.2007), cert. denied, 128 S.Ct. 927 (2008)

The record does not show that an assessment even occurred, although R e sp o n d e n t noted an attachment to the petition referencing a "review." (#5, p. 4, re fe re n c in g #2, p. 25). The Administrative Remedy Generalized Retrieval printout provided by R e sp o n d e n t appears to show that Petitioner never attempted to raise his claim with the B O P (#5-2). Petitioner's attachment, however, shows that someone, on some level, re v ie w e d his request. 4
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(a court may address the merits of a petition despite alleged failure to exhaust a d m in is tra tiv e 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, 527 F.3d at 758 (quoting Fults v. Sanders, 442 F.3d 1088, 1 0 8 9 (8th Cir. 2006)). The BOP retains broad discretion under 18 U.S.C. § 3621(b), and c o u rts review the BOP's decisions for abuse of its "substantial discretion." Fegans v. U n ite d States, 506 F.3d 1101, 1102-1105 (8th Cir. 2007).

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In this case, there is no evidence that the BOP conducted an individualized Second C h a n c e Act assessment of Petitioner's prerelease needs. Respondent has not provided a n y documentation showing that an assessment ever occurred.3 Instead, Respondent s ta te s that: Petitioner does not dispute the fact that the BOP reviewed individual factors re la te d to his RRC placement needs. As indicated by the attachment to the M e m o ra n d u m of Law In Support of 28 U.S.C. 2241 petition, petitioner's R R C placement date is 9/28/20, three months prior to his projected release d a te . (#5, p. 4) P e titio n e r's claim that Respondent failed to comply with the Second Chance Act, w h ic h requires an individualized assessment, is essentially a claim that the BOP failed to p ro p e rly assess the individual factors related to RRC placement. Further, the referenced re v ie w fails to evidence an individualized assessment, made in good faith, that complies w ith the Second Chance Act. The attachment does show, however, that some form of re v ie w occurred (#2, p. 25). P e titio n e r is entitled to a good faith, individualized assessment of his RRC p la c e m e n t needs. The BOP is not required, however, to conduct a detailed RRC p la c e m e n t analysis. Miller, 527 F.3d at 758. There is nothing in the applicable statutes or c a s e law that entitles Petitioner to RRC or home detention placement for a specific period o f time. Respondent is required only to individually consider Petitioner for placement in a manner consistent with 18 U.S.C. § 3621(b). Accordingly, this Court must deny

Petitioner briefly mentioned the existence of an assessment in his p e titio n (#2, p. 9). 6

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Petitioner's request for immediate transfer, which he requests regardless of the BOP's a s s e s sm e n t. Because, however, Respondent failed to show that the required assessment o c c u rre d , and the time to conduct the assessment has passed, Petitioner's request that the B O P show cause why he should not be immediately transferred is granted. III. C o n c lu s io n P e titio n e r Timothy Tensley's Petition for Writ of Habeas Corpus (#2) is G R A N T E D in part and DENIED in part. Respondent is ordered to show cause why he s h o u ld not immediately transfer Petitioner to a RRC, or home confinement, to serve the re m a in d e r of his prison term. Respondent asserted that the required individualized a s s e s sm e n t already occurred. Accordingly, Respondent may show cause by providing e v id e n c e of the completed assessment. Respondent must file this evidence within ten (1 0 ) days of the entry of this Order. If an assessment has not occurred, then it appears that the BOP has violated the S e c o n d Chance Act, along with its own regulations. If this is the case, Respondent must im m e d ia te ly inform the Court of this oversight, complete the required assessment, and file evidence of the completed assessment, within ten (10) days of the entry of this Order. This case will remain open until Respondent has complied with this Order.

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IT IS SO ORDERED this 2nd day of July, 2010.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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