Emmanuel v. Copenhaver et al

Filing 11


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 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, 8 Respondent. / 10 United States District Court For the Northern District of California 9 Petitioner Cheri Emmanuel brings this action seeking a writ of 11 habeas corpus under 28 U.S.C. § 2241. 12 Respondent Randy Tews1 argues, among other things, that it should 13 be denied because Petitioner has not exhausted her administrative 14 remedies. 15 provided with the opportunity to do so. 16 arguments raised in the petition and the answer thereto, the Court 17 denies the petition. Petitioner has not filed a traverse, although she was 18 19 In opposing the petition, Having considered the BACKGROUND Petitioner is serving a 120 month sentence for possession with 20 intent to distribute a controlled substance. 21 at the satellite Federal Prison Camp at Camp Parks (SCP) in Dublin, 22 California, where Respondent is warden. 23 is September 2, 2014. 24 She is incarcerated Her projected release date In the instant petition, Petitioner claims the Bureau of 25 26 1 27 28 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 2 designate her placement in a Residential Re-entry Center (RRC). 3 Specifically, she argues that, even though federal regulations 4 require that the BOP consider inmates for twelve months of 5 community confinement in an RRC prior to release, BOP policy 6 provides otherwise. 7 BOP to exercise its discretion to place her in an RRC for twelve 8 months prior to six months of home confinement. 9 she has not exhausted her administrative remedies through the BOP's 10 United States District Court For the Northern District of California 1 administrative appeals process concerning this issue, but maintains 11 that BOP staff have told inmates at SCP that all requests 12 concerning RRC placement will be denied categorically. Consequently, she asks the Court to order the She concedes that 13 DISCUSSION 14 The Ninth Circuit requires, “as a prudential matter, that 15 habeas petitioners exhaust available judicial and administrative 16 remedies before seeking relief under § 2241.” 17 INS, 239 F.3d 1037, 1047 (9th Cir. 2001).2 18 waived in limited circumstances, including when pursuit of 19 administrative remedies would be futile. 20 370 F.3d 994, 1000-01 (9th Cir. 2004) (listing circumstances when 21 waiver of exhaustion requirement may be appropriate). 22 Castro-Cortez v. The requirement may be See Laing v. Ashcroft, The BOP has established procedures by which inmates can seek 23 review of “an issue relating to any aspect” of an inmate’s 24 confinement. 28 C.F.R. § 542.10. The procedures apply to all 25 26 27 28 2 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. 2 1 inmates in programs operated by the BOP. 2 must attempt informal resolution of the issue with prison staff. 3 28 C.F.R. § 542.13(a). 4 issue informally, the inmate must submit a written administrative 5 appeal to the warden. 6 satisfied with the warden’s response at the institutional level may 7 then submit an appeal to the Regional Director. 8 § 542.15(a). 9 Regional Director’s response may submit an appeal to the General United States District Court For the Northern District of California 10 11 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 12 remedies would be futile because BOP staff have stated publicly at 13 meetings with SCP inmates that it would be a waste of inmates' time 14 to pursue administrative remedies regarding RRC decisions. 15 reasons discussed below, Petitioner’s unsupported contention that 16 administrative remedies would be futile does not persuade the Court 17 to waive the exhaustion requirement herein. 18 For the As an initial matter, although Petitioner states in her 19 petition that she is in the process of exhausting her 20 administrative remedies (Pet. at 3 ¶ 5) she provides no additional 21 facts or evidence to support her assertion. 22 has submitted a declaration from Bobbi Butler, a Correctional 23 Program Specialist employed by the BOP, who attests that 24 Petitioner, who filed the instant petition approximately five years 25 before her projected release date, has not been considered yet for 26 RRC placement and under BOP policy she will not be considered for 27 such placement until seventeen to nineteen months before her 28 3 Respondent, however, 1 projected release date. 2 Dec.) ¶ 4. 3 administrative remedy logs maintained on the BOP computerized 4 record-keeping database called SENTRY, and based on her review she 5 has found no administrative remedy requests filed by Petitioner on 6 this matter. 7 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 8 BOP staff did tell Petitioner and other inmates that administrative 9 requests for relief concerning RRC decisions would be denied United States District Court For the Northern District of California 10 categorically, such a statement is contrary to established BOP 11 policy and cannot be relied upon by Petitioner to avoid exhaustion 12 by assuming the BOP will deny her request for RRC placement. 13 particular, Respondent has submitted two BOP policy statements 14 relevant to the BOP's consideration of inmates for RRC placement. 15 Both statements were issued in response to implementation of the 16 Second Chance Act of 2007. 17 In The first statement, issued on April 14, 2008, concerns the 18 consideration of inmates for pre-release RRC placement during their 19 last twelve months of incarceration and explains that 20 individualized placement decisions are required: 21 22 23 24 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. 25 Butler Dec., Ex. 1 at 2 ¶ I(B) (emphasis in original). 26 Similarly, the second statement, issued on November 14, 2008, 27 concerns the consideration of inmates for pre-release RRC placement 28 4 1 when more than twelve months remain from their projected release 2 date and explains that individualized consideration must be given 3 to each inmate's request for RRC placement: 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 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 13 parties in this matter shows that Petitioner has not yet been 14 considered for RRC placement, BOP policy requires the 15 individualized consideration of each inmate's request for such 16 placement and Petitioner has not pursued any administrative 17 remedies concerning her RRC placement. 18 Court concludes that Petitioner is not entitled to waiver of the 19 exhaustion requirement. 20 habeas corpus will be DENIED for failure to exhaust administrative 21 remedies.3 22 23 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 24 corpus proceeding without first obtaining a certificate of 25 appealability (COA). See 28 U.S.C. § 2253(c); Fed. R. App. P. 26 27 28 3 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. 5 1 22(b). 2 entered on a procedural question antecedent to the merits. 3 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 5 dismissed on procedural grounds has two components, one directed at 6 the underlying constitutional claims and one directed at the 7 district court's procedural holding." 8 district court denies a habeas petition on procedural grounds 9 without reaching the prisoner's underlying constitutional claim, a 10 United States District Court For the Northern District of California 4 COA should issue when the prisoner shows, at least, that jurists of 11 reason would find it debatable whether the petition states a valid 12 claim of the denial of a constitutional right and that jurists of 13 reason would find it debatable whether the district court was 14 correct in its procedural ruling." 15 Id. at 484-85. "When the Id. at 484. Here, jurists of reason would not find it debatable whether 16 the Court was correct in its procedural ruling. 17 will not issue. 18 Appeals. Petitioner may seek a COA from the Court of 19 20 Accordingly, a COA CONCLUSION For the foregoing reasons, the Court DENIES the petition for 21 a writ of habeas corpus without prejudice to Petitioner filing a 22 new one after exhausting the BOP’s administrative appeals process. 23 The Clerk of the Court shall enter judgment and close the file. 24 25 IT IS SO ORDERED. Dated: 9/12/2011 CLAUDIA WILKEN United States District Judge 26 27 28 6 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 CHERI EMMANUEL, Case Number: CV09-04277 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 PAUL COPENHAVER et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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. 13 14 15 16 17 18 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 19 20 21 22 23 24 25 26 27 28 7

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