Pena v. Greenville Federal Correctional Institution

Filing 3

Petitioner is ORDERED to submit an amended petition on orbefore April 8, 2013. Failure to file an amended petition shall result in the dismissal of this action without prejudice. In order to assist petitioner in preparing his amended petition, the Cl erk is DIRECTED to mail Plaintiff a blank form petition for a writ of habeas corpus under 28 U.S.C. § 2241, along with instructions. The instant petition (Doc. 1) is DISMISSED.(Action due by 4/8/2013). Signed by Chief Judge David R. Herndon on 3/18/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAPHAEL PEÑA, # 14745-424,
Petitioner,
vs.
GREENVILLE FEDERAL
CORRECTIONAL INSTITUTION,
Respondent.

Case No. 13-cv-191-DRH

MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner Raphael Peña, currently incarcerated in the Federal Correctional
Institution at Greenville, Illinois (“Greenville”), brings this habeas corpus action
pursuant to 28 U.S.C. § 2241 to challenge the execution of his sentence. This
matter is now before the Court for review of the petition pursuant to Rule 4 of the
Rules Governing § 2254 Cases in United States District Courts, which provides
that upon preliminary consideration by the district court judge, “[i]f it plainly
appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus cases.
Following a jury trial, petitioner was convicted of conspiracy to distribute
cocaine and unlawful possession of a firearm. He was sentenced on February 10,
2004, to a life term on the conspiracy count, to be served concurrently with a 120Page 1 of 5

month sentence on the gun count. United States v. Peña, Case No. 02-cr-719-4
(N.D. Ill., Doc. 412). These sentences were vacated on appeal. United States v.
Bustamante, Peña, et al., 493 F.3d 879, 889-90 (2007); (Doc. 1-1, p. 2).
Petitioner was resentenced on March 13, 2008, to a total of 156 months (Doc. 635
in N.D. Ill. Case No. 02-cr-791-4).
His petition states that he has a projected release date of February 10, 2014
(Doc. 1-1, p. 2).

He asserts that the prison has not properly considered his

eligibility for up to 12 months’ placement in a halfway house under 18 U.S.C. §
3621(b) and §3624(c) (Doc. 1, pp. 2, 6; Doc. 1-1, pp. 2-4). As relief, he seeks an

order requiring respondent to immediately transfer him to a halfway house for the
remaining term of his sentence, which is now somewhat less than 11 months.
According to petitioner’s memorandum, he was never given consideration
for a full 12 months of halfway house placement (Doc. 1-1, p. 1).

He was

informed by Case Manager Mathais on January 31, 2013, that he would be
allowed six months in the halfway house, because he “had over $3,000 sent to
[his] account over the last six months and [has] community ties.” Id. Petitioner
argues that a proper consideration of all five factors mandated by statute 1 would
have led to a conclusion that he needed more time in a halfway house in order to
successfully adjust to reentry into the community, particularly because he plans
1

These factors are: the resources of the facility contemplated; the nature and
circumstances of the offense; the history and characteristics of the prisoner; any
statement by the court that imposed the sentence concerning the purposes for which the
sentence to imprisonment was determined to be warranted or recommending a type of
penal or correctional facility as appropriate; and any pertinent policy statement issued by
the Sentencing Commission pursuant to section 994(a)(2) of title 28. 18 U.S.C. § 3621(b).
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to relocate to a new state, and will not receive the same financial support after
leaving prison (Doc. 1-1, pp. 2-3); 18 U.S.C. § 3621(b); 18 U.S.C. § 3624(c)(1).
He further claims that Greenville officials are continuing to limit most prisoners
to six months or less in a halfway house, despite the enactment of the Second
Chance Act, which, since 2008, increased the available halfway house placement
to a full year (Doc. 1-1, p. 4; Docs. 1-9, 1-10, 1-11); 18 U.S.C. § 3624(c)(1).
Petitioner requests the Court to excuse him from the requirement that he
exhaust his administrative remedies prior to bringing a habeas action (Doc. 1, p.
2; Doc. 1-1, p. 1). See Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989) (“The
Bureau [of Prisons] must be given a chance to clean up its act before the courts
are asked to intervene.”); Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir. 1986)
(federal prisoners must first exhaust administrative remedies prior to bringing a
petition for a writ of habeas corpus in federal court). The halfway house decision
was reached just 375 days before petitioner’s official release date (Doc. 1-1, p. 1).
Petitioner reasons that exhaustion would take at least seven months, 2 by which
time his additional potential halfway house time would have passed (Doc. 1, p. 2).
He argues that he would be irreparably harmed if he were required to complete

The procedures for administrative resolution of inmate complaints are set forth in 28
C.F.R. § 542.10, et seq. An inmate must first “informally” present a complaint to staff for
resolution. 28 C.F.R. § 542.13(a). If the inmate is dissatisfied with the response, he
must file a BP-9 (Request for Administrative Remedy) seeking administrative review with
the warden within 20 days of the incident. See 28 C.F.R. § 542.14(a). If the warden does
not satisfactorily resolve the grievance, the inmate has 20 days to file a BP-10 with the
Bureau of Prisons’ regional director. See 28 C.F.R. § 542.15(a). If the matter is not
resolved by the regional director's disposition, the final level of appeal is to the Bureau of
Prisons’ general counsel, where a BP-11 must be filed within 30 days. Id.; see also
Massey v. Helman, 259 F.3d 641, 643 (7th Cir. 2001).
2

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the administrative remedy process, citing McCarthy v. Madigan, 503 U.S. 140
(1992). He does not, however, include any information to indicate whether or
when he has sought administrative review of the decision limiting his halfway
house placement to six months, or if so, whether he received any response.
In addition, petitioner has not named the proper respondent in this habeas
action. “Greenville Federal Correctional Institution” is not an entity that is subject
to the Court’s jurisdiction. In a habeas corpus proceeding, the proper respondent
is the prisoner’s custodian; in other words, the warden of the prison where the
inmate is confined. See Rumsfeld v. Padilla, 542 U.S. 426, 442, 447 (2004);
Kholyavskiy v. Achim, 443 F.3d 946, 948-49 (7th Cir. 2006).

Therefore, the

instant petition shall be dismissed, and petitioner must submit an amended
petition which names the proper respondent if he wishes to proceed with this
case.
Equally important, if the Court is to consider any waiver of the requirement
to exhaust administrative remedies within the Bureau of Prisons (“BOP”) before
initiating a habeas action, the Court must be informed of what attempts petitioner
has made to obtain relief through administrative action and appeals.
Accordingly, petitioner is ORDERED to submit an amended petition on or
before April 8, 2013. The amended petition shall include complete and accurate
information regarding the steps petitioner has taken to seek review of the halfway
house placement decision within the BOP and the response, if any, he has
received from prison officials. The amended document shall be designated “First

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Amended Petition” and shall supersede and replace the original petition and
attachments (Doc. 1, and Docs. 1-1 through 1-11). See Flannery v. Recording
Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not
accept piecemeal amendments to the original petition. Thus, the First Amended
Petition must stand on its own, without reference to any other pleading.

In

addition, petitioner must resubmit any exhibits and attachments that he wishes
the Court to consider along with his amended petition. Failure to file an amended
petition shall result in the dismissal of this action without prejudice.
In order to assist petitioner in preparing his amended petition, the Clerk is
DIRECTED to mail Plaintiff a blank form petition for a writ of habeas corpus
under 28 U.S.C. § 2241, along with instructions.
The instant petition (Doc. 1) is DISMISSED.
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2013.03.18
16:59:09 -05'00'

Signed this 18th day of March, 2013.

CHIEF JUDGE
UNITED STATES DISTRICT COURT

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