Wu v. Copenhaver et al

Filing 12


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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 09-4802 CW (PR) LE HUA WU, Petitioner, RANDY TEWS, Warden, 8 Respondent. / 9 United States District Court For the Northern District of California 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY v. Petitioner Le Hua Wu 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 The matter was taken under submission on the papers. 16 considered all of the papers submitted by the parties, the Court 17 denies the petition. 18 19 In opposing the petition, Petitioner has submitted a response to this argument. Having BACKGROUND Petitioner is serving a ninety-seven month sentence for 20 conspiracy to distribute and possess with intent to distribute 21 controlled substances, conspiracy to launder money and possession 22 with intent to distribute methamphetamine. 23 the satellite Federal Prison Camp at Camp Parks (SCP) in Dublin, 24 California, where Respondent is warden. She is incarcerated at Petitioner's projected 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. 1 2 release date is December 1, 2012. Petitioner claims the Bureau of Prisons (BOP) has failed to 3 apply its regulations properly to designate her placement in a 4 Residential Re-entry Center (RRC) followed by a term of home 5 confinement. 6 regulations require that the BOP consider placing inmates prior to 7 their release in an RRC for twelve months of community confinement 8 followed by six months of home confinement, BOP policy provides 9 otherwise. Specifically, she argues that, even though federal Consequently, she asks the Court to order the BOP to United States District Court For the Northern District of California 10 exercise its discretion to place her in an RRC for twelve months 11 followed by six months of home confinement. 12 has not exhausted her administrative remedies through the BOP's 13 administrative appeals process concerning this issue, but maintains 14 that BOP staff have told inmates at SCP that all requests 15 concerning RRC placement will be denied categorically. She concedes that she 16 DISCUSSION 17 The Ninth Circuit requires, “as a prudential matter, that 18 habeas petitioners exhaust available judicial and administrative 19 remedies before seeking relief under § 2241.” 20 INS, 239 F.3d 1037, 1047 (9th Cir. 2001).2 21 waived in limited circumstances, including when pursuit of 22 administrative remedies would be futile. 23 370 F.3d 994, 1000-01 (9th Cir. 2004) (listing circumstances when 24 waiver of exhaustion requirement may be appropriate). Castro-Cortez v. The requirement may be See Laing v. Ashcroft, 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 The BOP has established procedures by which inmates can seek 2 review of “an issue relating to any aspect” of an inmate’s 3 confinement. 4 inmates in programs operated by the BOP. 5 must attempt informal resolution of the issue with prison staff. 6 28 C.F.R. § 542.13(a). 7 issue informally, the inmate must submit a written administrative 8 appeal to the warden. 9 satisfied with the warden’s response at the institutional level may 28 C.F.R. § 542.10. The procedures apply to all Id. The inmate first If the inmate is unable to resolve the 28 C.F.R. § 542.14(d). An inmate who is not United States District Court For the Northern District of California 10 then submit an appeal to the Regional Director. 11 § 542.15(a). 12 Regional Director’s response may submit an appeal to the General 13 Counsel of the BOP. 14 28 C.F.R. Finally, an inmate who is not satisfied with the Id. Here, the parties' undisputed evidence shows that Petitioner 15 has not exhausted the her administrative remedies. 16 in her petition, which was filed on October 19, 2009, Petitioner 17 states that she is in the process of exhausting her administrative 18 remedies but she provides no additional facts to support her 19 assertion. 20 in support of the Answer a declaration from Bobbi Butler, a 21 Correctional Program Specialist employed by the BOP, who attests 22 that Petitioner has not yet been considered for RRC placement, and 23 that under BOP policy Petitioner will not be considered for such 24 placement until seventeen to nineteen months before her projected 25 release date. 26 Additionally, Butler states that she has reviewed the 27 administrative remedy logs maintained on the BOP computerized Pet. at 3 ¶ 5. Specifically, By contrast, Respondent has submitted Dec. Bobbi Butler Supp. Answer (Butler Dec.) ¶ 4. 28 3 1 record-keeping database called SENTRY, and based on her review she 2 has found no administrative remedy requests filed by Petitioner on 3 this matter. 4 Butler Dec. ¶¶ 1-3, 7. In support of her traverse to the Answer, Petitioner presents 5 evidence that on June 23, 2010, after Respondent's Answer was 6 filed, Petitioner submitted to the Administrative Remedy 7 Coordinator at FCI Dublin a request that she be approved for RRC 8 placement twelve months prior to her release date. 9 Response, Ex. "Request for Administrative Remedy" dated June 23, Pet'r's United States District Court For the Northern District of California 10 2010. 11 rejected on June 24, 2010, for the reason that she did not first 12 attempt informal resolution in accordance with BOP administrative 13 remedy procedures. 14 Administrative Remedy" dated June 24, 2010. 15 expressly informs Petitioner that she may resubmit her appeal in 16 proper form within fifteen days of the date of the rejection 17 notice. 18 shows she resubmitted her administrative request or otherwise 19 pursued her claim through the administrative remedy process. 20 Petitioner also presents evidence that her request was Id. Pet'r's Response, Ex. "Rejection Notice The rejection notice Petitioner does not contend or present evidence that Rather, Petitioner argues that pursuing administrative 21 remedies would be futile because BOP staff have stated publicly at 22 meetings with SCP inmates that it would be a waste of inmates' time 23 to pursue administrative remedies regarding RRC decisions. 24 Respondent, however, submits persuasive evidence that, even if BOP 25 staff did tell Petitioner and other inmates that administrative 26 requests for relief concerning RRC decisions would be denied 27 categorically, such a statement is contrary to established BOP 28 4 1 policy and cannot be relied upon by Petitioner to avoid exhaustion 2 by assuming her request for RRC placement would be denied by the 3 BOP. 4 statements relevant to the BOP's consideration of inmates for RRC 5 placement. 6 implementation of the Second Chance Act of 2007. 7 In particular, Respondent has submitted two BOP policy Both statements were issued in response to The first statement, issued on April 14, 2008, concerns the 8 consideration of inmates for pre-release RRC placement during their 9 last twelve months of incarceration and explains that United States District Court For the Northern District of California 10 11 12 13 14 individualized placement decisions are required: 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. 15 Butler Dec., Ex. 1 at 2 ¶ I(B) (emphasis in original). 16 Similarly, the second statement, issued on November 14, 2008, 17 concerns the consideration of inmates for pre-release RRC placement 18 when more than twelve months remain from their projected release 19 date and explains that individualized consideration must be given 20 to each inmate's request for RRC placement: 21 22 23 24 25 26 27 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. 28 5 1 Butler Dec., Ex. 2 at 1-2 (emphasis in original). 2 Petitioner also argues that the exhaustion of administrative 3 remedies would be futile because the Deputy Director of the BOP, 4 Audrey Gill, is married to Warden Paul Copenhaver, who was warden 5 at SCP when Petitioner filed the instant petition. 6 is without merit because it is purely speculative and unsupported 7 by any evidence. 8 SCP. 9 This argument Additionally, Copenhaver no longer is warden at Finally, Petitioner claims that the exhaustion of United States District Court For the Northern District of California 10 administrative remedies would be futile because by the time her 11 assessment for RRC placement takes place seventeen to nineteen 12 months before her projected release date, she will not be able to 13 complete the administrative remedy process in time to receive 14 twelve months of RRC placement. 15 presented an argument that is purely speculative and without 16 evidentiary support. 17 Again, however, Petitioner has In sum, the Court finds that the undisputed evidence presented 18 by the parties in this matter shows that Petitioner has not yet 19 been considered for RRC placement and, consequently, she has not 20 pursued administrative relief for having been denied such 21 placement. 22 exhaustion of the administrative remedy process would not be futile 23 because BOP policy requires the individualized consideration of 24 each inmate's request for RRC placement and Petitioner has not 25 presented evidence that, should she be denied such placement, she 26 will not receive unbiased review of her request for administrative 27 relief or that she will not have time to complete the Additionally, the Court finds that Petitioner's 28 6 1 2 3 administrative remedy process before her projected release date. Accordingly, the petition for a writ of habeas corpus will be DENIED for failure to exhaust administrative remedies.3 4 5 CERTIFICATE OF APPEALABILITY A petitioner may not appeal a final order in a federal habeas 6 corpus proceeding without first obtaining a certificate of 7 appealability (COA). 8 22(b). 9 entered on a procedural question antecedent to the merits. United States District Court For the Northern District of California 10 See 28 U.S.C. § 2253(c); Fed. R. App. P. Section 2253(c)(1) applies to an appeal of a final order See Slack v. McDaniel, 529 U.S. 473, 483 (2000). 11 "Determining whether a COA should issue where the petition was 12 dismissed on procedural grounds has two components, one directed at 13 the underlying constitutional claims and one directed at the 14 district court's procedural holding." 15 district court denies a habeas petition on procedural grounds 16 without reaching the prisoner's underlying constitutional claim, a 17 COA should issue when the prisoner shows, at least, that jurists of 18 reason would find it debatable whether the petition states a valid 19 claim of the denial of a constitutional right and that jurists of 20 reason would find it debatable whether the district court was 21 correct in its procedural ruling." 22 Id. at 484-85. "When the Id. at 484. Here, jurists of reason would not find it debatable whether 23 the Court was correct in its procedural ruling. 24 will not issue. 25 Appeals. Accordingly, a COA Petitioner may seek a COA from the Court of 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. 7 1 2 CONCLUSION For the foregoing reasons, the Court DENIES the petition for 3 a writ of habeas corpus without prejudice to Petitioner filing a 4 new one after exhausting the BOP’s administrative appeals process. 5 The Clerk of the Court shall enter judgment and close the file. 6 7 IT IS SO ORDERED. Dated: 9/12/2011 CLAUDIA WILKEN United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 LE HA WU, Case Number: CV09-04802 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 Le Ha Wu 27718-112 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 9

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