Murguia v. Copenhaver et al

Filing 5

ORDER DENYING motion to proceed in forma pauperis and DISMISSING petition. Signed by Judge Vaughn R Walker on 11/4/2009. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 11/4/2009)

1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a federal prisoner currently incarcerated at the Federal Corrections Institution ("FCI"), Dublin, and proceeding pro se, has filed the instant petition for a writ of habeas corpus pursuant to 28 USC § 2241. Doc #1. Petitioner is in the custody of v PAUL COPENHAVER, Warden, et al, Respondent(s). / (Doc ## 2 & 4) ROSA MURGIA, Petitioner, ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION No C-09-3944 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

the Bureau of Prisons ("BOP") following her 2008 conviction of one count of distributing methamphetamine; her projected release date is August 11, 2010. Id at 15.

Petitioner challenges the decisions by the FCI warden and the BOP regional director refusing to exercise the discretion granted the BOP under 18 USC §§ 3621 & 3624 to transfer petitioner to a Residential Reentry Center ("RRC") for a period beginning six

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months before the expiration of her sentence.

Doc ## 1 & 4. Doc ## 2

Petitioner also seeks leave to proceed in forma pauperis. & 4.

As explained below, the petition is subject to dismissal for

failure to exhaust administrative remedies.

I Although § 2241 does not specify that petitioners must exhaust available remedies before filing petitions for a writ of habeas corpus, the Ninth Circuit "require[s], as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241." v Ashcroft, 370 F3d 994, 997 (9th Cir 2004). The BOP has established procedures by which prisoners can seek review of "an issue relating to any aspect" of a prisoner's confinement, thereby satisfying the administrative exhaustion requirement. 28 CFR § 542.10. The procedures apply to all Id. The first level of Id § Laing

prisoners in programs operated by the BOP.

review is "informal resolution" at the institutional level. 542.13.

A prisoner who is not satisfied with the warden's response

resulting from the informal resolution process may then submit an appeal to the regional director. Id § 542.15. A prisoner who is

not satisfied with the regional director's response may submit an appeal to the general counsel of the BOP. Id. Once the general

counsel responds to and signs the appeal, the prisoner has exhausted administrative remedies. See id § 542.11.

Here, petitioner states that she was "in the process of

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exhausting her administrative remedy through the BOP's administrative appeals process" when she filed the instant petition, thereby conceding she did not exhaust her administrative remedies prior to filing the instant petition. Doc #1 at 3, emphasis added.

Documents attached to her petition show that she sought informal resolution and, then, because she was not satisfied with the institutional response, appealed that decision to the regional director on July 28, 2009. Doc #1 at 17-21. On September 16, 2009,

almost one month after the instant petition was filed, petitioner filed additional documents showing that she filed a "Central Office Administrative Appeal" dated September 10, 2009 directed to the general counsel appealing the regional director's denial; no response to that appeal is on file with the Court. Doc #4 at 4-8.

It appears, therefore, that her appeal to the general counsel is still pending. Doc #4 at 4. Petitioner nonetheless urges the

court to waive the exhaustion requirement and consider the merits of her petition.

II Because it is not a jurisdictional prerequisite, the exhaustion requirement may be waived in limited circumstances. See

Laing, 370 F3d at 998 & 1000-01 (listing circumstances under which waiver of exhaustion requirement may be appropriate, which include "when: (1) available remedies provide no genuine opportunity for

adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4)

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in certain instances a [petitioner] has raised a substantial constitutional question"). Here, petitioner claims exhaustion would be futile "because the BOP issues a form letter of denial stating that the individual has been considered and denied based upon their individual RRC needs, while being told by [s]taff that they are being categorically denied." Doc #1 at 3. Petitioner admits that

"[r]esponses for those who have pursued administrative remedy reflect that they were considered on an individual basis" but claims, without offering any explanation why, "[t]hat is not the case." Id at 8. Petitioner adds that because the "Deputy Director"

is married to the warden, "[i]t is worst case Nepotism, where the Deputy Director is responsible for reviewing her husband's decisions, [such that] inmates cannot expect objective review of their administrative remedy." Id. Completely lacking any

evidentiary support, petitioner's conclusory allegations that exhaustion would be futile are unpersuasive and insufficient to excuse her failure to exhaust administrative remedies.

III For the foregoing reasons, the court finds petitioner has not exhausted her administrative remedies and that she is not entitled to waiver of the exhaustion requirement. Accordingly, the

petition for a writ of habeas corpus under § 2241 is hereby DISMISSED without prejudice to petitioner's filing a new habeas corpus action after exhausting the BOP's administrative appeals

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process. Additionally, petitioner's request for leave to proceed in forma pauperis (Doc #2; see Doc #4) is DENIED. Documents on file

with the court show petitioner's average monthly deposits for the past six months was $350.00 and her average monthly balance for the same period was $30.65. The $5.00 filing fee is now due.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

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