Wyre v. Cross

Filing 3

ORDER DISMISSING CASE with prejudice, and DENYING the request for injunctive relief with prejudice. The Clerk of Court is further DIRECTED to mail a copy of this order forthwith to petitioner. In light of the time-sensitive nature of this matter, the Clerk of Court is further DIRECTED to also attempt to communicate this ruling to petitioner by any other means available to the Clerk, such as via telephone, fax or email. Signed by Chief Judge David R. Herndon on 4/8/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JULIAN WYRE, # 30166-424,
Petitioner,
vs.

Case No. 14-cv-418-DRH

JAMES CROSS,
Respondent.

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner Julian Wyre is currently in the custody of the Federal Bureau of
Prisons (BOP), incarcerated at FCI-Greenville.

He is serving a 204-month

sentence following his guilty plea and conviction in the Northern District of
Illinois, Case No. 07-cr-50039, for possession with intent to distribute cocaine
base. He brings this emergency habeas corpus petition pursuant to 28 U.S.C.
§ 2241, claiming that respondent violated his due process rights when he denied
permission for petitioner to attend his grandmother’s funeral on an unmonitored
temporary furlough. The petition was submitted to prison authorities for mailing
on April 3, 2014. It was received by the Clerk of Court through regular mail on
April 8, 2014, and filed immediately.
Petitioner’s sentence was imposed on November 6, 2008, and he is not

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projected to be released until February 2022. 1

Petitioner learned on April 2,

2014, that his grandmother had died that day (Doc. 1, p. 2). On April 3, 2014, he
submitted a written request to Respondent Cross asking for an unmonitored
temporary release for a 24-hour period (including travel to and from Chicago and
time to attend the funeral). Petitioner is unable to pay the estimated $5,000.00
cost for a monitored furlough. 2 The funeral was to be scheduled during the week
of April 7-11, 2014; the exact date was unknown to petitioner at the time he filed
this action. His request was denied on April 3, 2014, and petitioner filed this
action the same day, apparently without seeking review through the BOP’s
administrative remedy process. He asks that he be excused from the requirement
to exhaust these remedies (Doc. 1, p. 2).
Petitioner does not attach any documentation to disclose the reason(s) for
respondent’s denial of his request, although he refers to an “Exhibit A,” described
as the “Inmate Request to Staff” (Doc. 1, p. 2).

He asserts, however, that

respondent failed to consider each of the three criteria listed in the statute
authorizing the BOP to grant a temporary release, which states in pertinent part:
The Bureau of Prisons may release a prisoner from the place of his
imprisonment for a limited period [1] if such release appears to be
consistent with the purpose for which the sentence was imposed and
any pertinent policy statement issued by the Sentencing Commission
pursuant to 28 U.S.C. 994(a)(2), [2] if such release otherwise appears
1

This estimate is from the Inmate Locator section of the website of the Federal Bureau of Prisons,
http://www.bop.gov/inmateloc/ (last visited April 8, 2014).

2

Petitioner does not indicate whether he has funds to pay his own travel expenses for a trip to
Chicago. The expenses of a furlough are the responsibility of the inmate or inmate’s family, or
other source approved by the warden, except if the furlough is for the government’s primary
benefit. 28 C.F.R. 570.34. The Court will assume that petitioner’s family would pay the expenses
of the unsupervised furlough proposed by petitioner.
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to be consistent with the public interest and [3] if there is reasonable
cause to believe that a prisoner will honor the trust to be imposed in
him, by authorizing him, under prescribed conditions, to-(a) visit a designated place for a period not to exceed thirty days, and
then return to the same or another facility, for the purpose of-...
(2) attending a funeral of a relative[.]
18 U.S.C. § 3622(a)(2). Petitioner argues that this statute specifically authorizes
the temporary release he seeks, and he has a constitutional right to be properly
considered for such a furlough (Doc. 1, p. 3-4). As relief, he asks this Court to
order the respondent to grant his request for an unmonitored temporary release.
Due to the exigent nature of this matter, The Court construes the
Emergency Petition for Writ of Habeas Corpus (Doc. 1) as both a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241, and a motion for emergency
injunctive relief.
Exhaustion of Administrative Remedies
The Seventh Circuit notes that there is no statutory exhaustion requirement
for a § 2241 petition. Gonzalez v. O'Connell, 355 F.3d 1010, 1015-19 (7th Cir.
2004) (citing James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002)).

“[W]here

Congress has not clearly required exhaustion, sound judicial discretion governs.”
McCarthy v. Madigan, 503 U.S. 140, 144 (1992).3
Exhaustion

may

be

excused

when:

3

(1)

requiring

exhaustion

of

As the Seventh Circuit notes in Gonzalez, McCarthy has been superseded by the PLRA to the
extent it held that federal prisoners seeking monetary damages in a Bivens action are not required
under 42 U.S.C. § 1997e to exhaust administrative remedies provided by the BOP. However,
McCarthy's principle that when exhaustion is not statutorily mandated, “sound judicial discretion
governs,” 503 U.S. at 144, remains good law, as does its further admonitions on how that
discretion should be utilized. See, e.g., Zephyr Aviation L.L.C. v. Dailey, 247 F.3d 565, 570–73
(5th Cir.2001). Gonzalez, 355 F.3d 1010, 1016 n. 5.
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administrative remedies causes prejudice, due to unreasonable delay or an
indefinite timeframe for administrative action; (2) the agency lacks the ability or
competence to resolve the issue or grant the relief requested; (3) appealing
through the administrative process would be futile because the agency is biased or
has predetermined the issue; or (4) where substantial constitutional questions are
raised. Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002) (internal quotations and
citations omitted).
Given that the funeral is planned to occur during the current week of April
7-11, 2014, time is of the essence. 4 The Court grants petitioner’s request to be
excused from the exhaustion of administrative remedies requirement, and will
address his substantive claim for relief.
Merits Review
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
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

4

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 or
she 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 BOP’s 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 BOP's 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).
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the authority to apply the rules to other habeas corpus cases.

After carefully

reviewing the petition in the present case, the Court concludes that petitioner is
not entitled to relief, and the petition must be dismissed.
A petition seeking habeas corpus relief is appropriate under 28 U.S.C. §
2241 when a prisoner is challenging the fact or duration of confinement. Preiser
v. Rodriguez, 411 U.S. 475, 490 (1973); Waletzki v. Keohane, 13 F.3d 1079,
1080 (7th Cir. 1994). A writ of habeas corpus may be granted where the inmate
is in custody in violation of the Constitution or laws or treaties of the United
States. See 28 U.S.C. § 2241(c)(3). Here, petitioner contends he has been denied
due process, as guaranteed by the Fifth Amendment, because respondent
allegedly failed to consider the applicable statutory factors in 18 U.S.C. § 3622.
“The touchstone of due process is protection of the individual against arbitrary
action of government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (citation to
Dent v. West Virginia, 129 U.S. 114, 123 (1889), omitted)).
As an initial matter, it does not appear that this Court has any authority to
grant a furlough. Congress has given the BOP – not the courts – the authority to
temporarily release a federal prisoner. See 18 U.S.C. § 3622(a).5 In any event,
petitioner’s due process argument fails on the merits.
The Federal Bureau of Prisons “may” grant “temporary release” – a furlough
5

United States v. Smith, 438 F.3d 796 (7th Cir. 2006), provides guidance. In Smith, the Court of
Appeals for the Seventh Circuit stated that once a sentence has been imposed, neither the judge
nor a parole board may make changes except for that authority explicitly given to district judges in
18 U.S.C. § 3582(c). Smith, 438 F.3d at 798. See also United States v. Greer, 2010 WL
3279335 (E.D. Wis. Aug. 19, 2010) (dismissing, and in the alternative denying, motion for
temporary release to attend funeral; citing Smith); United States v. Reed, 2008 WL 4822045, *2
(C.D. Ill. Oct. 28, 2008) (citing Smith regarding the limits on district courts’ authority to alter a

sentence).
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– in limited circumstances, which include “attending a funeral of a relative.” 18
U.S.C. § 3622(a)(2). Thus, the decision on whether to approve a furlough is a
discretionary matter.
Regulations have been prescribed for the furlough process: 28 C.F.R. §§
570.30-.38. The prescribed procedures are:
(a) Application. Inmates may submit a furlough application to staff,
who will review it for compliance with these regulations and Bureau
policy.
(b) Notification of decision. An inmate will be notified of the
Warden's decision on the furlough application. Where a furlough
application is denied, the inmate will be notified of the reasons for
the denial.
(c) Appeal. An inmate may appeal any aspect of the furlough
program through the Administrative Remedy Program, 28 CFR Part
542, Subpart B.
28 CFR § 570.37. Being present during “a crisis in the immediate family, or other
urgent situation” is a recognized justification for a furlough. 28 C.F.R. 570.33(b).
“[A] party complaining of a due-process violation must assert a liberty
interest in order to maintain his due-process claim.” Khan v. Mukasey, 517 F.3d
513, 518 (7th Cir. 2008) (citing Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir.
2006)).

Because mandatory procedures are prescribed for considering an

application for furlough, the Court will assume that some level of due process is
triggered, although the issue is debatable. See generally Greenholz v. Inmates of
Nebraska Penal and Correctional Complex, 442 U.S. 1, 12-13 (1979); United
States v. Roque-Espinoza, 338 F.3d 724, 729-30 (7th Cir. 2003). These cases
held that, relative to discretionary parole decisions, mandatory procedures trigger
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minimal due process protections. But the process that is due following a parole
hearing consists of merely informing the prisoner of the reason(s) for denial of the
discretionary release, much like the process outlined in the federal regulations at
28 CFR § 570.37 set forth above.

See Greenholz, 442 U.S. at 15; Walker v.

Prisoner Review Board, 769 F.2d 396, 400 (7th Cir. 1985).

Of course, no

hearing is required under the statute or regulations governing temporary release
of a prisoner.
The instant petition does not disclose the reason for respondent’s denial of
petitioner’s furlough request. At the same time, petitioner does not assert that
respondent failed to give him any reason. Petitioner points out that 18 U.S.C. §
3622(a)(2) says that release may be granted to attend the funeral of “a relative,”
without respect to degree of separation. However, the regulation prescribed to
guide the BOP, 28 C.F.R. § 570.33(b), specifies “immediate family.” Black’s Law
Dictionary defines “immediate family” as one’s parents, brothers and sisters, wife
or husband, and children – also referenced as “first degree relatives.”
www.thelawdictionary.org/immediate-family (last visited April 8, 2014).

See
A

grandparent is not included in this definition of immediate family, therefore, if
respondent denied petitioner’s request in reliance on 28 C.F.R. § 570.33(b), there
was no abuse of discretion.
Petitioner claims that respondent erred in failing to consider any of the
factors outlined in 18 U.S.C. § 3622 (whether the temporary release appears to be
consistent with the purpose for which his sentence was imposed and pertinent

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policy statement(s) of the Sentencing Commission; whether the release would be
consistent with the public interest, and whether there is cause to believe that
petitioner would honor the trust imposed in him if release were granted).
However, his argument that respondent is obligated to consider each of these
factors is unavailing. Under the plain language of the statute, release “may” be
granted “if” the first two factors “and” the third factor are all found to be present.
The conjunctive “and” dictates that all three factors must be satisfied in order for
a temporary release to be granted; if the BOP determines that any one of these
criteria is not met, the furlough should be denied.
The record of an earlier unrelated § 2241 action filed by petitioner in this
court demonstrates that security concerns are present which would dictate
against his temporary release. See Wyre v. Cross, Case No. 13-cv-538-CJP (S.D.
Ill., Doc. 17, Jan. 21, 2014). 6 In addition to having approximately eight more
years remaining on his sentence, petitioner was under “a security designation of
‘medium’ and a custody classification of ‘in,’ which is the second highest custody
level within the Federal Bureau of Prisons.” Id. These factors would also justify
the denial of his request under 18 U.S.C. § 3622.
The Court sympathizes with petitioner’s loss and his desire to attend his
grandmother’s funeral to grieve together with his family. However, absence from
family affairs is one of the ordinary consequences of incarceration. Due process
considerations, if applicable at all in this context, are satisfied if respondent
6

Court documents are, of course, public records of which the Court can take judicial notice. See
Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
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merely informs petitioner of the reason why his furlough request was denied.
Petitioner has not demonstrated that respondent failed to do so, much less that
the decision was an improper exercise of the broad discretion granted to the BOP
under the statute and regulations.
For the above reasons, the petition shall be dismissed with prejudice, and
the request for injunctive relief denied.
Filing Fee
Petitioner has been informed by letter dated April 8, 2014, of his obligation
to either pay the $5.00 filing fee for this action or submit a motion for leave to
proceed in forma pauperis (IFP) (Doc. 2). He must take such action no later than
May 8, 2014. This obligation is not extinguished by the dismissal of the suit. See
28 U.S.C. § 1915(a)(1); Lucien v. Jockisch, 133 F.3d 464, 467-68 (7th Cir. 1998).
Disposition
IT IS HEREBY ORDERED that petitioner Julian Wyre’s Emergency
Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED with prejudice, and
his request for injunctive relief is DENIED with prejudice.
The Clerk is DIRECTED to close this case and enter judgment accordingly.
The Clerk of Court is further DIRECTED to mail a copy of this order
forthwith to petitioner. In light of the time-sensitive nature of this matter, the
Clerk of Court is further DIRECTED to also attempt to communicate this ruling
to petitioner by any other means available to the Clerk, such as via telephone, fax
or email.

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If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4).
A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal.

See FED. R. APP. P. 24(a)(1)(C).

If

petitioner does choose to appeal and is allowed to proceed IFP, he will be
required to pay a portion of the $505.00 appellate filing fee in order to pursue his
appeal (the amount to be determined based on his prison trust fund account
records for the past six months) irrespective of the outcome of the appeal. See
FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal
deadline. It is not necessary for petitioner to obtain a certificate of appealability
from this § 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).

David R.
Herndon
2014.04.08
16:43:18 -05'00'

IT IS SO ORDERED.
DATED: April 8, 2014

Chief Judge
United States District Court

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