Cox v. Federal Bureau of Prisons et al

Filing 6

ORDER ENTERED: Petitioner's motion 4 to amend the petition is denied without prejudice. Petitioner's motion 5 for a cease and desist order is denied. The petition for a writ of habeas corups under 28 U.S.C. 2241 is dismissed without prejudice. Signed by Senior District Judge Richard D. Rogers on 6/21/2011. (Mailed to pro se party Welby Thomas Cox by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WELBY THOMAS COX,
Petitioner,
v.

CASE NO. 11-3017-RDR

FEDERAL BUREAU OF PRISONS, et al.,
Respondents.

O R D E R
This matter comes before the court on a petition for writ of
habeas corpus under 28 U.S.C. § 2241, filed pro se by a petitioner
incarcerated in the United States Penitentiary in Leavenworth,
Kansas.
Petitioner alleges error in the execution of his federal
sentence.

In part, petitioner claims error in the offense history

recited in his Inmate Skills and Development Program has deprived
him

of

home

confinement

credit

under

the

Second

Chance

Act.

Petitioner also claims he stopped participating in a Residential
Drug and Alcohol Program which was not needed once he discovered no
psychological counseling was provided.
On these allegations, petitioner seeks correction of his record
within the Bureau of Prisons (BOP), and disclosure of all persons
responsible for said error.

Petitioner also seeks transfer to

another federal facility pursuant to a 24 hour furlough, one year of
home confinement pursuant to the Second Chance Act, administrative
leave for a unit team member to undergo stress and anger management,
an accounting of all fines collected from petitioner by BOP and paid

to the court, and to have his file sealed.
Petitioner acknowledges he has not exhausted administrative
remedies within the Bureau of Prisons, but claims exhaustion is not
required to establish this court’s jurisdiction.
a

BOP

counselor

resolution.1

refused

to

accept

his

Petitioner claims

informal

request

for

Petitioner also cites his repeated lack of success in

all other attempts to correct his record.
Section 2241 is appropriate to challenge the execution of a
federal sentence.2
Cir.2000).

Haugh v. Booker, 210 F.3d 1147, 1149 (10th

However, it is well-settled in this circuit that

exhaustion of available remedies is required before seeking habeas
corpus relief under § 2241 in a federal court.
F.3d 1198, 1203 (10th Cir.2010).

Garza v. Davis, 596

See e.g., Montez v. McKinna, 208

F.3d 862, 866 (10th Cir.2000)("A habeas petitioner is generally
required to exhaust state remedies whether his action is brought
under § 2241 or § 2254."); Williams v. O'Brien, 792 F.2d 986, 987
(10th

Cir.1986)(federal

prisoners

must

exhaust

administrative

remedies before commencing a petition pursuant to § 2241).

While a

narrow exception to the exhaustion requirement has been recognized
for

futility,

petitioner’s

Garza,
efforts

596
at

F.3d

at

pursuing

1203-04,

the

administrative

court

finds

remedies

is

insufficient on its face to show that administrative relief was

1

See 28 C.F.R. §§ 542.10 to 542.16 (codifying the four-level
BOP administrative remedy system an inmate must utilize to fully
exhaust administrative remedies).
2

Petitioner’s motion to amend the instant § 2241 petition to
further assert a demand under the Freedom of Information Act (FOIA),
5 U.S.C. § 552a(d), for specific corrections or amendments to his
inmate record is denied as an improper attempt to expand the scope
of this matter beyond habeas corpus.
2

“effectively foreclosed” to petitioner.

Goodwin v. Oklahoma, 23

F.2d 156, 158 (10th Cir.1991).
The court thus finds the instant petition should be dismissed
without prejudice, based upon petitioner’s patently clear failure to
first fully exhaust administrative remedies.

Petitioner’s “Urgent

Motion for a Court Ordered Cease and Desist” order is denied.
IT IS THEREFORE ORDERED that petitioner’s motion to amend the
petition (Doc. 4) is denied without prejudice, that petitioner’s
motion for a cease and desist order (Doc. 5) is denied, and that the
petition for a writ of habeas corpus under 28 U.S.C. § 2241 is
dismissed without prejudice.
DATED:

This 21st day of June 2011, at Topeka, Kansas.

s/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge

3