Emmanuel v. Copenhaver et al

Filing 11

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 9/12/2011. (ndr, COURT STAFF) (Filed on 9/12/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 09-4277 CW (PR)

CHERI EMMANUEL,
Petitioner,

ORDER DENYING
PETITION FOR WRIT OF
HABEAS CORPUS;
DENYING CERTIFICATE
OF APPEALABILITY

v.
RANDY TEWS, Warden,

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Respondent.
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United States District Court
For the Northern District of California

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Petitioner Cheri Emmanuel brings this action seeking a writ of

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habeas corpus under 28 U.S.C. § 2241.

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Respondent Randy Tews1 argues, among other things, that it should

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be denied because Petitioner has not exhausted her administrative

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remedies.

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provided with the opportunity to do so.

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arguments raised in the petition and the answer thereto, the Court

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denies the petition.

Petitioner has not filed a traverse, although she was

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In opposing the petition,

Having considered the

BACKGROUND
Petitioner is serving a 120 month sentence for possession with

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intent to distribute a controlled substance.

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at the satellite Federal Prison Camp at Camp Parks (SCP) in Dublin,

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California, where Respondent is warden.

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is September 2, 2014.

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She is incarcerated

Her projected release date

In the instant petition, Petitioner claims the Bureau of

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In accordance with Rule 2(a) of the Rules Governing § 2254
Proceedings and Rule 25(d)(1) of the Federal Rules of Civil
Procedure, the Court substitutes Randy Tews as Respondent because
he is now Petitioner's custodian.

Prisons (BOP) has failed to apply its regulations properly to

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designate her placement in a Residential Re-entry Center (RRC).

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Specifically, she argues that, even though federal regulations

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require that the BOP consider inmates for twelve months of

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community confinement in an RRC prior to release, BOP policy

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provides otherwise.

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BOP to exercise its discretion to place her in an RRC for twelve

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months prior to six months of home confinement.

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she has not exhausted her administrative remedies through the BOP's

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United States District Court
For the Northern District of California

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administrative appeals process concerning this issue, but maintains

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that BOP staff have told inmates at SCP that all requests

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concerning RRC placement will be denied categorically.

Consequently, she asks the Court to order the

She concedes that

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DISCUSSION

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The Ninth Circuit requires, “as a prudential matter, that

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habeas petitioners exhaust available judicial and administrative

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remedies before seeking relief under § 2241.”

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INS, 239 F.3d 1037, 1047 (9th Cir. 2001).2

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waived in limited circumstances, including when pursuit of

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administrative remedies would be futile.

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370 F.3d 994, 1000-01 (9th Cir. 2004) (listing circumstances when

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waiver of exhaustion requirement may be appropriate).

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Castro-Cortez v.

The requirement may be

See Laing v. Ashcroft,

The BOP has established procedures by which inmates can seek

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review of “an issue relating to any aspect” of an inmate’s

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confinement.

28 C.F.R. § 542.10.

The procedures apply to all

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Because exhaustion is required under this authority, the
Court need not consider Respondent’s argument that the Prison
Litigation Reform Act, 42 U.S.C. § 1997e, also requires exhaustion
of administrative remedies in this case.
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inmates in programs operated by the BOP.

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must attempt informal resolution of the issue with prison staff.

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28 C.F.R. § 542.13(a).

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issue informally, the inmate must submit a written administrative

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appeal to the warden.

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satisfied with the warden’s response at the institutional level may

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then submit an appeal to the Regional Director.

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§ 542.15(a).

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Regional Director’s response may submit an appeal to the General

United States District Court
For the Northern District of California

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Id.

The inmate first

If the inmate is unable to resolve the

28 C.F.R. § 542.14(d).

An inmate who is not

28 C.F.R.

Finally, an inmate who is not satisfied with the

Counsel of the BOP.

Id.

Petitioner argues in her petition that pursuing administrative

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remedies would be futile because BOP staff have stated publicly at

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meetings with SCP inmates that it would be a waste of inmates' time

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to pursue administrative remedies regarding RRC decisions.

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reasons discussed below, Petitioner’s unsupported contention that

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administrative remedies would be futile does not persuade the Court

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to waive the exhaustion requirement herein.

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For the

As an initial matter, although Petitioner states in her

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petition that she is in the process of exhausting her

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administrative remedies (Pet. at 3 ¶ 5) she provides no additional

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facts or evidence to support her assertion.

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has submitted a declaration from Bobbi Butler, a Correctional

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Program Specialist employed by the BOP, who attests that

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Petitioner, who filed the instant petition approximately five years

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before her projected release date, has not been considered yet for

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RRC placement and under BOP policy she will not be considered for

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such placement until seventeen to nineteen months before her

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Respondent, however,

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projected release date.

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Dec.) ¶ 4.

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administrative remedy logs maintained on the BOP computerized

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record-keeping database called SENTRY, and based on her review she

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has found no administrative remedy requests filed by Petitioner on

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this matter.

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Dec. Bobbi Butler Supp. Answer (Butler

Additionally, Butler states that she has reviewed the

Butler Dec. ¶¶ 1-3, 7.

Further, Respondent submits persuasive evidence that, even if

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BOP staff did tell Petitioner and other inmates that administrative

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requests for relief concerning RRC decisions would be denied

United States District Court
For the Northern District of California

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categorically, such a statement is contrary to established BOP

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policy and cannot be relied upon by Petitioner to avoid exhaustion

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by assuming the BOP will deny her request for RRC placement.

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particular, Respondent has submitted two BOP policy statements

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relevant to the BOP's consideration of inmates for RRC placement.

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Both statements were issued in response to implementation of the

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Second Chance Act of 2007.

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In

The first statement, issued on April 14, 2008, concerns the

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consideration of inmates for pre-release RRC placement during their

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last twelve months of incarceration and explains that

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individualized placement decisions are required:

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The Act requires that pre-release RRC placement decisions
be made on an individual basis in every inmate’s case,
according to new criteria in the Act, as well as the
criteria in 18 U.S.C. § 3621(b). See 18 U.S.C.
§ 3624(c)(6)(amended). As a result, the Bureau’s categorical
timeframe limitations on pre-release community confinement,
found at 28 C.F.R. §§ 570.20 and 570.21, are no longer
applicable, and must no longer be followed.

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Butler Dec., Ex. 1 at 2 ¶ I(B) (emphasis in original).
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Similarly, the second statement, issued on November 14, 2008,
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concerns the consideration of inmates for pre-release RRC placement
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when more than twelve months remain from their projected release

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date and explains that individualized consideration must be given

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to each inmate's request for RRC placement:

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United States District Court
For the Northern District of California

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Inmates are legally eligible to be placed in an RRC at
any time during their prison sentence. Federal Courts
have made clear that RRCs are penal or correctional
facilities within the meaning of the applicable statutes.
Staff cannot, therefore, automatically deny an inmate's
request for transfer to a[n] RRC. Rather, inmate
requests for RRC placement must receive individualized
consideration. In other words, staff cannot say that an
inmate, whatever the circumstances, is automatically
ineligible for transfer to a[n] RRC. Rather, staff must
first review the inmate’s request on its individual
merits, in accordance with policy, and as explained in
this guidance.
Butler Dec., Ex. 2 at 1-2 (emphasis in original).
The Court finds that the undisputed evidence presented by the

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parties in this matter shows that Petitioner has not yet been

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considered for RRC placement, BOP policy requires the

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individualized consideration of each inmate's request for such

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placement and Petitioner has not pursued any administrative

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remedies concerning her RRC placement.

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Court concludes that Petitioner is not entitled to waiver of the

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exhaustion requirement.

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habeas corpus will be DENIED for failure to exhaust administrative

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remedies.3

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Based on this evidence, the

Accordingly, the petition for a writ of

CERTIFICATE OF APPEALABILITY
A petitioner may not appeal a final order in a federal habeas

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corpus proceeding without first obtaining a certificate of

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appealability (COA).

See 28 U.S.C. § 2253(c); Fed. R. App. P.

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Because the Court has denied the petition for failure to
exhaust, the Court does not reach Respondent's other arguments
raised in opposition to the petition.
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22(b).

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entered on a procedural question antecedent to the merits.

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Slack v. McDaniel, 529 U.S. 473, 483 (2000).

Section 2253(c)(1) applies to an appeal of a final order
See

"Determining whether a COA should issue where the petition was

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dismissed on procedural grounds has two components, one directed at

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the underlying constitutional claims and one directed at the

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district court's procedural holding."

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district court denies a habeas petition on procedural grounds

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without reaching the prisoner's underlying constitutional claim, a

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United States District Court
For the Northern District of California

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COA should issue when the prisoner shows, at least, that jurists of

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reason would find it debatable whether the petition states a valid

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claim of the denial of a constitutional right and that jurists of

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reason would find it debatable whether the district court was

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correct in its procedural ruling."

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Id. at 484-85.

"When the

Id. at 484.

Here, jurists of reason would not find it debatable whether

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the Court was correct in its procedural ruling.

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will not issue.

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Appeals.

Petitioner may seek a COA from the Court of

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Accordingly, a COA

CONCLUSION
For the foregoing reasons, the Court DENIES the petition for

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a writ of habeas corpus without prejudice to Petitioner filing a

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new one after exhausting the BOP’s administrative appeals process.

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The Clerk of the Court shall enter judgment and close the file.

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IT IS SO ORDERED.
Dated: 9/12/2011
CLAUDIA WILKEN
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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CHERI EMMANUEL,

Case Number: CV09-04277 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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PAUL COPENHAVER et al,
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Defendant.
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United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
That on September 12, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.

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Cheri Emmanuel Reg. #40476-048
Satellite Prison Camp
5675 8th St. Camp Parks
Dublin, CA 94568
Dated: September 12, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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