Koger v. Maye

Filing 2

ORDER ENTERED: Petitioner is granted thirty (30) days in which to submit his petition upon court-provided forms and to show cause why this action should not be dismissed for failure to exhaust administrative remedies and failure to state a claim entitling him to relief. Signed by Senior District Judge Richard D. Rogers on 2/14/2013. (Mailed to pro se party Darren S. Koger by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARREN S. KOGER,
Petitioner,
v.

CASE NO.

13-3007-RDR

C. MAYE, Warden,
USP-Leavenworth,
Respondents.
O R D E R
This petition for writ of habeas corpus was filed pro se pursuant
to 28 U.S.C. § 2241 by an inmate of the Federal Prison Camp,
Leavenworth, Kansas.

Petitioner has paid the filing fee.

He seeks

a court order requiring the Bureau of Prisons (BOP) to consider his
request for 12-months placement in a Residential Re-entry Center
(RRC) earlier and more favorably.

Having considered the petition,

the court finds as follows.

PETITION IS NOT ON FORMS
Local court rule requires that habeas corpus applications be
submitted upon court-approved forms.
the forms.

Petitioner has not utilized

Instead, he has filed a very lengthy and general legal

memorandum that presents few facts from his particular case.

He is

required to submit his application upon the proper forms.

If he

fails to comply within the time allotted, this action may be dismissed
without further notice.
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FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
It has long been held that exhaustion of all available
administrative remedies is a prerequisite to a federal prison inmate
seeking judicial review of administrative action by the BOP and
federal habeas corpus relief pursuant to 28 U.S.C. § 2241.

See

Williams v. O=Brien, 792 F.2d 986, 987 (10th Cir. 1986); see also
Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); McClung v.
Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004)(citing Carmona v. U.S.
Bureau of Prisons, 243 F.3d 629, 634 (2nd Cir. 2001); Little v.
Hopkins, 638 F.2d 953, 953-54 (6th Cir. 1981)).

Administrative

exhaustion is generally required for three valid reasons: (1) to
allow the agency to develop a factual record and apply its expertise,
which facilitates judicial review; (2) to permit the agency to grant
the relief requested, which conserves judicial resources; and (3)
to provide the agency the opportunity to correct its own errors, which
“fosters administrative autonomy.”
F.3d 757, 761-62 (3rd Cir. 1996).

See Moscato v. Federal BOP, 98

In order to have fully exhausted,

petitioner must have raised claims on administrative appeal1 that are
1

The BOP provides a three-level Administrative Remedy Program for
inmates to obtain “review of an issue which relates to any aspect of their
confinement.” 28 C.F.R. § 542.10. First, an inmate must attempt informally to
resolve the issue with institutional staff. 28 C.F.R. § 542.13(a). If the
concern is not informally resolved, an inmate may file an appeal to the Warden.
28 C.F.R. § 542.14. Next, an inmate may appeal an adverse decision to the Regional
Director. 28 C.F.R. § 542.15(a). Finally, the inmate may appeal to the BOP’s
Central Office. Id. No administrative remedy appeal is considered fully and
finally exhausted until it has been denied by the Central Office.
Id.
If
responses are not received by the inmate within the time allotted for reply, “the
inmate may consider the absence of a response to be a denial at that level.” 28
C.F.R. § 542.18.

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identical to those he now presents in this federal habeas corpus
petition.
It is clear from petitioner’s arguments and exhibits that he
has not fully exhausted administrative remedies.

This is true

whether his claim is that his application for RRC placement was
considered too late to allow for exhaustion of administrative and
judicial remedies or that he was improperly denied RRC placement for
the full 12 months.

Petitioner’s exhibits show that his first BP-8

filed on July 16, 2012, simply claimed that he needed 12 months
halfway house and was “answered on the spot by (his counselor).”
Petitioner appealed by way of a BP-9, and exhibits the response from
Warden Maye dated September 7, 2012, which provided in pertinent
part:
[Y]ou indicate that you require additional time in (an RRC)
pursuant to the Second Chance Act.
For relief, you
request up to 12 months in an RRC. . . . [S]econd Chance
Act considerations are ordinarily conducted 17 to 19
months prior to your release.
The request will be
considered in conjunction with your regularly scheduled
program review . . . in October 2012. At that time you
will be approximately 20 months from release.
Petition (Doc. 1) Attach. 11.

During this time petitioner also

pursued a separate administrative remedy seeking action on his first
grievance.

Mr. Koger does not allege facts or provide exhibits

showing that he filed a BP-8, BP-9, BP-10, and a BP-11 challenging
the decision made during his Second Chance Act Consideration or even
his complaint regarding the time frame of the RRC placement decision

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relative to the review process.
There are “limited exceptions” to the exhaustion prerequisite,
including “a narrow futility exception,” which the Tenth Circuit
Court of Appeals has “recognized in the context of petitions brought
under 28 U.S.C. § 2254;” and “other circuits have recognized in the
context of petitions brought under § 2241.”

See Ciocchetti v. Wiley,

2009 WL 4918253 (10th Cir. Dec. 22, 2009, unpublished)2(citing see
Fairchild v. Workman, 579 F.3d 1134, 1155 (10th Cir. 2009); see e.g.,
Fazzini v. Northeast Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir.
2006)).

Such

exceptions

“apply

only

in

‘extraordinary

circumstances,’ and [petitioner] bears the burden of demonstrating
the futility of administrative review.”

See Fuller v. Rich, 11 F.3d

61, 62 (5th Cir. 1994)(citations omitted).
Petitioner argues that exhaustion should be excused in his case
because it will take too long based upon the time guidelines for each
tier of the Bureau of Prisons’ administrative remedy process, and
it would be futile based upon BOP Director Harley Lappin’s general
statement in 2008 not to expect the Second Change Act to result in
a substantial move to RRC facilities.

In support of these arguments,

he alleges that were he required to pursue administrative remedies,
he “would likely be near his last twelve months” or “inside the twelve
months before his release date.”

He claims that the time frame

2

This unpublished case is cited for its reasoning only, and not as
binding precedent.

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for administrative remedies is unreasonable and speculates that with
all the extensions available to prison authorities, exhaustion could
take as long as 140 to 220 days.

Petitioner’s corollary argument

is that requiring full exhaustion could deprive him of time in an
RRC.
Petitioner has alleged no facts showing that his personal
situation

presents

a

“peculiar

urgency.”

With

his

initial

administrative grievance, he presented a budget of projected living
expenses and conditions in the area of his release including high
unemployment and lack of contacts, which are not unusual.
Similarly,

exhaustion

of

administrative

remedies

is

not

rendered futile simply because a prisoner anticipates he will not
obtain relief on administrative appeal before the final year of his
sentence.

The twelve-month mark in the Second Chance Act is an

express statutory maximum, and not a mandated minimum.
3624(c)(1)-(6).

See 18 U.S.C.

Petitioner’s arguments to the contrary are not

convincing.
That exhaustion could deprive petitioner of RRC time is not,
in and of itself, such an extraordinary circumstance as to warrant
waiver of the exhaustion requirement.

The Supreme Court has

required that even those inmates who may be entitled to immediate
release exhaust their administrative remedies.

Faced with the

argument “that to require exhaustion of state remedies . . . would
deprive a . . . prisoner of the speedy review of his grievance which
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is so often essential to any effective redress,”

that Court

acknowledged that “exhaustion of . . . remedies takes time” but
concluded

“there

is

no

reason

to

assume

that

.

.

administrators . . . will not act expeditiously.”

.

prison

Preiser v.

Rodriguez, 411 U.S. 475, 494-95 (1973).
In short,

petitioner

has not met his burden of showing

extraordinary circumstances that exempt him from the exhaustion
requirement.

Accordingly, the court finds this § 2241 petition is

subject to being dismissed for failure to exhaust.

FAILURE TO STATE CLAIM FOR RELIEF UNDER § 2241
In addition, the court finds that Mr. Koger has failed to state
facts to support a claim for relief under 28 U.S.C. § 2241.

28 U.S.C.

§ 2241(c)(3) pertinently provides: “The writ of habeas corpus shall
not extend to a prisoner unless . . . he is in custody in violation
of the Constitution or laws or treaties of the United States . . .
.”

He asks the court to order the BOP to consider his application

for placement “in good faith” and “on an individualized basis using
the five factors” in 18 U.S.C. § 3621(b) and to take into account
the language of 18 U.S.C. § 3624(c)(6)(C), which he claims grant[s]
him the maximum amount of time in an RRC to provide the “greatest
likelihood

of

successful

reintegration

into

the

community.”

However, he alleges no facts to show that proper consideration of
the requisite statutory provisions was not provided in determining
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his RRC placement.
the

October

He provides little if any information regarding

decision

as

to

his

RRC

placement.

From

that

consideration, he provides only page 2 of his “latest program
review,” which shows his programming and education history.
(Attach. 18).

Id.

The court concludes that Mr. Koger does not allege

facts or provide exhibits showing that his Second Chance Act
Consideration conducted in October 2012 was without consideration
of the requisite statutory factors or otherwise a violation of
federal or constitutional law.
Petitioner is given thirty (30) days in which to show cause why
this action should not be dismissed for failure to exhaust and for
failure to state a claim under § 2241.
IT IS THEREFORE ORDERED that petitioner is granted thirty (30)
days in which to submit his petition upon court-provided forms and
to show cause why this action should not be dismissed for failure
to exhaust administrative remedies and failure to state a claim
entitling him to relief.
The clerk is directed to send petitioner § 2241 forms.
IT IS SO ORDERED.
DATED:

This 14th day of February, 2013, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

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