Davis v. USA

Filing 4

ORDER DISMISSING CASE without prejudice for failure to exhaust and failure to name an appropriate respondent. Signed by Judge David R. Herndon on 5/19/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUSTIN DAVIS,
# 12415-029,
Petitioner,
vs.

Case No. 17-cv-294-DRH

UNITED STATES,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Justin Davis, an inmate who is currently incarcerated in Marion
USP, brings this habeas corpus action pursuant to 28 U.S.C. § 2241, in order to
request that this Court recommend that he receive up to twelve months in a
Residential Re-Entry Center (“RRC”) under the Second Chance Act, or grant him
what RRC time this Court deems appropriate.

(Doc. 1).

This matter is now

before the Court for a preliminary review of the Petition pursuant to Rule 4 of the
Rules Governing § 2254 Cases in United States District Courts. Rule 4 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.

After carefully

reviewing the Petition in the present case, the Court concludes that Petitioner is
not entitled to relief, and the case shall be DISMISSED.
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Background
Petitioner provides little factual background in his Petition. He notes that
he was sentenced to a term of 77 months in prison and 4 years supervised release
in Case No. 1:12-cr-00095-LRR-1, which was heard in the Northern District of
Iowa and decided May 29, 2013. (Doc. 1, p. 1). Petitioner also claims he has
fulfilled all of the recommendations of the sentencing court and the Honorable
Judge Linda R. Reade.

(Doc. 1, p. 2).

He claims he is participating in the

Residential Drug Abuse Program (“RDAP”).

Id.

Petitioner also attached an

education transcript and disciplinary transcript to his Petition, for mitigation
purposes. (Doc. 1, pp. 2, 5-6). Petitioner notes in his Petition that many inmates
that complete RDAP have their sentence reduced by 12 months. (Doc. 1, p. 2).
He also states that he will not receive the reduction, which is why he is seeking the
Second Chance Act. Id. Petitioner is due for release on August 14, 2018. (Doc.
1, p. 3). Petitioner requests “that this Court recommend the Second Chance Act .
. . (18 U.S.C. § 3624) [which] allows inmates to receive up to 12 months in RRC,
instead of the 10% rule under 18 U.S.C. § 3621” or, in the alternative, “grant him
what RRC time this Court deems appropriate.” (Doc. 1, p. 2).
Discussion
A petition seeking habeas corpus relief is appropriate under 28 U.S.C. §
2241 when a prisoner is challenging the fact or duration of his confinement.
Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Waletzki v. Keohane, 13 F.3d
1079, 1080 (7th Cir. 1994). The writ of habeas corpus may be granted where the

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defendant is in custody in violation of the Constitution or laws or treaties of the
United States. 28 U.S.C. § 2241(c)(3).
Initially, there is some disagreement among the district courts in the
Seventh Circuit as to whether a habeas corpus petition is the proper vehicle to
make a claim regarding halfway house placement. See Woolridge v. Cross, 2014
WL 4799893 (S.D. Ill. Sept. 26, 2014) (finding that claim must be brought
pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)); Stokes
v. Cross, 2014 WL 503934, at *2 (S.D. Ill. Feb. 2014) (same); Moody v. Rios,
2013 WL 5236747 (C.D. Ill. Sept. 17, 2013) (finding that halfway house
placement can be addressed under § 2241); Feazell v. Sherrod, 2010 WL
5174355 (S.D. Ill. Dec. 16, 2010) (same); Pence v. Holikna, 2009 WL 3241874
(W.D. Wis. Sept. 29, 2009) (same).
Requests for quantum change in the level of custody, such as outright
freedom, probation, etc., are typically brought as habeas corpus actions, while
requests for a change in the circumstances of confinement are typically brought as
civil rights actions. Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1995). “Put
differently, if the prisoner is not seeking release, or release is not available as a
remedy to the prisoner’s claims, then ‘his challenge can only concern the
conditions of his confinement . . . not the fact of his confinement. As such, he may
not proceed with a habeas petition.’” Stokes v. Cross, 2014 WL 503934, at *2
(S.D. Ill. Feb. 2014) (citing Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir.
2005)).

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Here, outright release is not an option. In fact, Petitioner does not even
request release. Rather, he asks that he be assigned to serve twelve months of his
term at an RRC, or that this Court recommend he be assigned accordingly. This
would appear to be more like the challenges to requests for work release, transfer
between prisons, or changes in housing quarters that have been held to constitute
civil rights actions as opposed to habeas corpus proceedings. Pischke v. Litscher,
178 F.3d 497,499 (7th Cir. 1999); Falcon v. U.S. BOP, 52 F.3d 137, 138 (7th Cir.
1995); Adams v. Beldsoe, 173 F. App’x. 483, 484 (7th Cir. 2006).

However,

assuming arguendo that Petitioner may proceed under § 2241 and that the Court
has jurisdiction to consider his Petition, he is still not entitled to the relief sought.
Under the Second Chance Act, 18 U.S.C. § 3624(c), the Bureau of Prisons
(“BOP”) has the authority to place inmates in community confinement facilities
during the final portion of their sentences for up to 12 months. Specifically:
The Director of the Bureau of Prisons shall, to the extent practicable,
ensure that a prisoner serving a term of imprisonment spends a
portion of the final months of that term (not to exceed 12 months),
under conditions that will afford that prisoner a reasonable
opportunity to adjust to and prepare for the reentry of that prisoner
into the community. Such conditions may include a community
correctional facility.
Id. The amount of time to be allocated to each inmate is left to the considerable
discretion of the BOP. Pence v. Holinka, 2009 WL 3241874, at *1 (W.D. Wis.
Sept. 29, 2009), citing Sessel v. Outlaw, 2009 WL 1850331, at *4 (E.D. Ark.
2009); Woods v. Wilson, 2009 WL 2579241, at *2 (N.D. Ill. Aug. 19, 2009);
Daraio v. Lappin, 2009 WL 303995 (D. Conn. Feb. 9, 2009) (BOP retains

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discretion under the Second Chance Act to decide whether and when an inmate
should be placed in a halfway house). In exercising this discretion, the BOP must
make decisions on an individual basis considering the factors listed in 18 U.S.C. §
3621(b) in an effort to “ensure that placement in a community correctional facility
. . . is . . . of sufficient duration to provide the greatest likelihood of successful
reintegration into the community.”

18 U.S.C. § 3624(c)(6).

Factors to be

considered are: (1) the resources of the facility contemplated; (2) the nature and
circumstances of the offense; (3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence concerning the purposes
for which the sentence was determined to be warranted or recommending a
specific type of facility; and (5) any pertinent policy statement issued by the
Sentencing Commission. 18 U.S.C. § 3621(b).
Petitioner has failed to indicate whether the BOP has actually made a
determination as to his eligibility for placement in an RRC for any amount of time.
It is therefore unclear to this Court whether the issue Plaintiff brings in his
Petition is ripe for review. With respect to Petitioner’s request in his Petition that
this Court make an RRC determination in place of the BOP, it will not, as it is not
the role of this Court to conduct an independent review of the § 3621(b) factors
and make a de novo determination as to Petitioner’s placement in a halfway
house. See Deffenbaugh v. Krueger, 2015 WL 362743 (C.D. Ill. Jan. 28, 2015).
Even if this issue were ripe for review, which seems unlikely given
Petitioner is presently seeking a recommendation as to his placement, under the

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Administrative Procedures Act, courts are only empowered to “compel agency
action unlawfully withheld or unreasonably delayed” and to “hold unlawful and
set aside agency action, findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706. See also Vasquez v. Strada, 684 F.3d 431, 433 (3d Cir. 2012) (the
Court’s review of the BOP’s RRC placement decision is limited to an abuse of
discretion).
Before a court can conduct this limited review, however, it must address
the issue of exhaustion. Concerning the requirement to exhaust administrative
remedies, the Seventh Circuit notes that there is no statutory exhaustion
requirement in Section 2241. 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, 112 S.Ct. 1081, 117

L.Ed.2d 291 (1992). 1
Exhaustion may be excused when: (1) requiring exhaustion of
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.

1

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 Bureau of Prisons.
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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Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002) (internal quotations and citations
omitted).
Petitioner does not touch on the issue of exhaustion in his Petition. It is
entirely unclear to what extent, if any, Petitioner has sought administrative
resolution of his issues. 2 This Court suspects that, given Petitioner’s request that
this Court recommend a certain length of RRC time, or simply grant it in response
to this Petition, Petitioner has not yet sought administrative remedies, much less
exhausted them.

The Court therefore cannot conclude that Petitioner has

exhausted his administrative remedies, and in this instance, the Court shall not
exercise its discretion to excuse exhaustion, as Petitioner has provided no
allegations that would support such leniency.

The Petition will therefore be

denied for failure to exhaust.
In addition, Petitioner has not named the proper respondent in this habeas
action. In a habeas corpus proceeding, an individual respondent who has the
authority to bring the petitioner before the Court must be named. This individual
is the prisoner’s custodian, i.e., 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

2

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).

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shall be dismissed for failure to name an appropriate respondent as well.
Disposition
For these reasons, the Court DENIES the Petition (Doc. 1) and DISMISSES
Petitioner’s claims without prejudice for failure to exhaust and failure to name an
appropriate respondent.
IT IS SO ORDERED.
DATED: May 19, 2017

Judge Herndon
2017.05.19
07:59:37 -05'00'
____________________________________
United States District Judge

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