Gomez v. Cross

Filing 10

ORDER DISMISSING CASE without prejudice for failure to exhaust. Signed by Chief Judge David R. Herndon on 8/13/12. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MIGUEL A. GOMEZ,
Petitioner,
vs.

Case No. 12–cv–0175–DRH–SCW

JAMES CROSS, JR.,
Respondent.

ORDER
HERNDON, Chief Judge:
Miguel Gomez, currently incarcerated in the USP Florence in Colorado,
brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the
constitutionality of two conditions of his confinement: the revocation of good time
credits and the increase of his custody level. Mr. Gomez admits that, at the time
of filing his petition, he had not completed the Bureau of Prisons’ (BOP’s)
administrative remedy process: he had “yet to receive official response” on his BP10 appeal but had “been instructed to assume a negative response and to
proceed” to file the instant petition. (Doc. 1, p. 2).
It is well settled that federal prisoners must first exhaust administrative
remedies before bringing a petition under § 2241. Schmanke v. Irvins, 207 F.
App’x 655, 657 (7th Cir. 2006) (citing Moore v. Olson, 368 F.3d 757, 758 (7th
Cir. 2004)). See also Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989) (the

BOP “must be given a chance to clean up its act before the courts are asked to
intervene.”). This action was filed in late February 2012. It is now August and
petitioner has not filed any further documentation with this Court to indicate
whether he has received any response from BOP officials regarding his final
administrative appeal. The instant motion will therefore be dismissed without
prejudice. Should Mr. Gomez wish to re-file a petition, he should do so in the
District Court for the District of Colorado. See Morales v. Bezy, 499 F.3d 668,
669–70 (7th Cir. 2007) (a § 2241 petition “must be filed in the district in which
the petitioner is confined rather than in the one in which he was sentenced.”)
(citing Rumsfeld v. Padilla, 542 U.S. 426, 442–43 (2004)).
IT IS HEREBY ORDERED that Mr. Gomez’s petition for a writ of habeas
corpus is DISMISSED without prejudice. Nothing in this order shall be
construed as an opinion on the merits of Petitioner’s claims for relief. The Court
close the file.
IT IS SO ORDERED.
DATE: August 13, 2012

Digitally signed by
David R. Herndon
Date: 2012.08.13
11:07:36 -05'00'
Chief Judge
United States District Judge