McCollum v. Outlaw

Filing 15

MEMORANDUM AND ORDER denying 1 Petition for a Writ of Habeas Corpus and dismissing this case with prejudice. Signed by Magistrate Judge J. Thomas Ray on 10/13/11. (hph)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
HELENA DIVISION
LONNIE C. McCOLLUM
Reg. #22674-424
VS.

PETITIONER

2:11CV00067 JTR

T.C. OUTLAW, Warden,
FCI-Forrest City

RESPONDENT

MEMORANDUM AND ORDER
Lonnie C. McCollum, an inmate in the Federal Correctional Institution in
Forrest City, Arkansas, brings this 28 U.S.C. § 2241 Petition for a Writ of Habeas
Corpus and supporting Memorandum of Law (docket entries #1, #2). Respondent has
filed a Response (docket entry #9), to which Petitioner filed a Reply (docket entry
#12). For the reasons that follow, the Petition should be denied.

I. Background
Petitioner is currently serving a forty-one-month sentence for bank robbery,
with a projected release date of January 30, 2013. He alleges that, in considering
inmates for pre-release placement in residential reentry centers (RRCs), the Bureau
of Prisons (BOP) is violating the Second Chance Act of 2007 in two ways. First, he
says the BOP is basing its decisions on a presumption that placement should be no
longer than six months, when the Act authorizes twelve months and requires an

individualized determination concerning what would be a sufficient duration to
provide the greatest likelihood of successful integration into the community. Second,
he says inmates like him are entitled under the Act to separate consideration for the
full twelve-month RRC placement as an incentive award for participation in skills
development programs while incarcerated. As relief, he asks the Court to direct the
BOP to consider the length of his RRC placement in accordance with the provisions
of the Second Chance Act.
In response, Respondent argues that: (1) Petitioner has failed to exhaust his
administrative remedies within the BOP; (2) the BOP has not yet made a
determination of Petitioner’s eligibility for release to a RRC; and (3) because no
determination had been made, there is no case or controversy for this Court to
adjudicate.

II. Discussion
A.

Exhaustion.

The federal writ of habeas corpus is "an extraordinary remedy" limited to "cases
of special urgency." Willis v. Ciccone, 506 F.2d 1011, 1014 (8th Cir. 1974). In the
context of challenges to the actions of prison authorities, this means that habeas relief
can be available only after "administrative procedures which provide a real possibility
for relief have been exhausted." Id. at 1014-15. Administrative exhaustion promotes
-2-

four objectives: “(1) the development of the necessary factual background upon which
the claim is based; (2) the exercise of administrative expertise and discretionary
authority often necessary for the resolution of the dispute; (3) the autonomy of the
prison administration; and (4) judicial efficiency from the settlement of disputes at the
prison level.” Mason v. Ciccone, 531 F.2d 867, 870 (8th Cir. 1976).
Thus, federal prisoners challenging the actions of the BOP are required to
exhaust the BOP's administrative remedies before seeking judicial review through a
§ 2241 habeas petition. Id. at 868-69; Willis, 506 F.2d at 1015; see also United States
v. Chappel, 208 F.3d 1069, 1069-70 (8th Cir. 2000). This includes a prisoner's
challenge to BOP regulations and policies regarding community confinement. Garza
v. Davis, 596 F.3d 1198, 1203-05 (10th Cir. 2010).
The BOP administrative remedy program is a tiered process by which a federal
prisoner may seek "review of an issue relating to any aspect of his/her own
confinement." 28 C.F.R. § 542.10(a). An inmate must initially attempt to resolve the
issue informally with institutional staff. Id. § 542.13(a). Informal resolution must be
completed within twenty calendar days following the date on which the basis for the
complaint occurred. Id. 542.14(a). If no resolution is reached, the inmate must submit
a formal written administrative remedy request (BP-9), to which the warden must
respond within twenty calendar days. Id. §§ 542.14(a), 542.18. If dissatisfied with

-3-

the warden’s response, the inmate may appeal (BP-10) to the appropriate Regional
Director, who must respond within thirty calendar days. Id. §§ 542.15(a), 542.18. If
still dissatisfied, the inmate may take a final appeal (BP-11) to the Office of General
Counsel, who must respond within forty calendar days. Id.
Respondent submits a declaration from An Tran, BOP senior litigation counsel,
along with supporting documentation, showing that Petitioner has never filed any
administrative remedies while in the BOP, much less anything dealing with RRC
placement. (Tran Decl. ¶¶ 5-8 & Att. 2 [docket entry # 9-1, at 2 & 9].)
Petitioner argues that he should not be required to exhaust because exhaustion
would be futile and the timing of the BOP’s administrative process would cause him
irreparable harm (docket entry #12, at 2-3). Respondent filed his Response in June
2011, alerting Petitioner of the non-exhaustion defense and giving him ample time to
initiate the BOP’s administrative process. At this time, Petitioner’s projected release
date is still almost sixteen months away. He has not alleged any attempt to utilize the
BOP's administrative procedures, and his belief that such a pursuit would be
unsuccessful does not render the remedy futile. Before the federal court intervenes,
he should be required to provide the BOP an opportunity to fully assess his claims
regarding RRC placement and, possibly, resolve his concerns.
Under these circumstances, this § 2241 petition should be denied, without

-4-

prejudice. This will preserve Petitioner’s right to refile this action, if necessary, after
he has exhausted the BOP's administrative remedies.
B.

Case or Controversy.

“[T]he core component of standing is an essential and unchanging part of the
case-or-controversy requirement” of Article III of the United States Constitution.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To have standing to bring
an action in federal court, a plaintiff must establish, at a minimum, that he has
“suffered an injury in fact – an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Id. at 560-61 (citations and internal quotation marks omitted).
In his Memorandum of Law, Petitioner referred several times to the BOP’s
“decision to place him in a RRC for only five to six months” (docket entry #2, at 6,
7, 9, 10, 11).1 However, according to the Response and supporting documentation,
institutional staff had not yet evaluated Petitioner for RRC placement as of June 10,
2011, and had made no RRC determination. Respondent stated that Petitioner would
be evaluated when he was closer to his projected release date and would be evaluated
1

All of the references are in the argument section of Petitioner’s Memorandum,
which was lifted, almost word for word, from the court’s opinion in Krueger v. Martinez,
665 F. Supp. 2d 477 (M.D. Penn. 2009). Cf. id. at 479-86 with docket entry #2, at 2-13.
Unlike this case, it was clear in Krueger that the petitioner had been evaluated for RRC
placement and had been recommended for five to six months of placement. Krueger, 665
F. Supp. 2d at 479.
-5-

in accordance with the BOP guidelines and policies for RRC placement.2 Respondent
further stated that Petitioner had requested relocation of supervision from the Northern
District of Illinois to the Eastern District of Michigan, and that RRC placement review
could not be conducted until his site of supervision was determined. (See Tran Decl.
¶¶ 9-11.)
The Court directed Petitioner to reply to Respondent’s arguments for dismissal,
specifically advising him of the assertion that no RRC placement evaluation had been
made (docket entry #10). In his Reply, filed on July 5, 2011, Petitioner did not
address the BOP official’s declaration that no RRC evaluation or determination had
been made, nor has he attempted to provide evidence of any such determination.3
Because he has failed to establish that he has suffered any injury, Petitioner lacks
standing to bring his claims alleging violations of the Second Chance Act. See Stanko
v. Obama, 393 F. App’x 849, 851 (3d Cir. 2010) (unpublished) (federal prisoner’s §
2241 petition properly dismissed for lack of standing where BOP had not yet made
RRC decision at time prisoner filed petition).

2

Respondent asserts that, under BOP policy, inmates are evaluated for RRC
placement when they are within seventeen to nineteen months of release. Petitioner’s
projected release date is January 30, 2013, making June 30, 2011, the earliest possible
evaluation date.
3

Like his Memorandum, Petitioner’s Reply simply lifts language from Krueger
referring to that petitioner’s “5-6 month RRC placement” decision (docket entry #12, at 9,
11, 13, 14).
-6-

III. Conclusion
IT IS THEREFORE ORDERED THAT this 28 U.S.C. § 2241 Petition for a
Writ of Habeas Corpus (docket entry #1) is DENIED, and this case is dismissed,
without prejudice.
DATED this 13th day of October, 2011.

____________________________________
UNITED STATES MAGISTRATE JUDGE

-7-