Gaines v. Samuels

Filing 3

MEMORANDUM AND ORDER ENTERED: Petitioner's motion 2 to proceed in forma pauperis is denied and he is granted thirty (30) days in which to submit the fee of $5.00 to the court. Within the same thirty-day period, petitioner is required to submit his petition upon court-approved 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 Calvin Bernis Gaines by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CALVIN BERNIS GAINES,
Petitioner,
v.

CASE NO.

13-3019-RDR

Charles E. Samuels, Warden,
USP-Leavenworth,
Respondents.
MEMORANDUM AND ORDER
This petition for writ of habeas corpus was filed pro se
pursuant to 28 U.S.C. § 2241 by an inmate of the United States
Penitentiary, Leavenworth, Kansas.

Mr. Gaines was convicted of

drug trafficking and is serving a 43-month sentence imposed by
the United States District Court for the Eastern District of
Utah.

He

has

a

projected

release

date

of

November

2013.

Petitioner claims that the Bureau of Prisons (BOP) should be
required to review inmates for placement in a Residential Reentry Center (RRC) earlier than the current policy allows and
complains

that

the

BOP

placement to 6 months.
to

consider

his

is

improperly

trying

to

limit

RRC

He seeks a court order requiring the BOP

request

earlier and more favorably.

for

12-months

placement

in

an

RRC

Having considered the petition, the

court finds as follows.

MOTION TO PROCEED IN FORMA PAUPERIS
1

Petitioner has filed a Motion to Proceed in forma pauperis.
Having considered the motion, the court finds that it must be
denied because his current balance indicates he has funds to pay
the $5 fee.
fee.

Accordingly, petitioner is required to submit the

If he fails to comply within the time allotted, this

action may be dismissed without further notice.

PETITION IS NOT ON FORMS
Local court rule requires that habeas corpus applications
be

submitted

upon

court-approved

utilized the forms.

forms.

Petitioner

has

not

Instead, he has filed a very lengthy and

general legal memorandum that presents few facts regarding his
particular case.
the

proper

He is required to submit his application upon

forms.

If

he

fails

to

comply

within

the

time

allotted, this action may be dismissed without further notice.

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
It

has

long

been

established

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

U.S.C. § 2241.

federal

habeas

corpus

relief

pursuant

to

28

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.
2

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.”

See Moscato v. Federal

BOP, 98 F.3d 757, 761-62 (3rd Cir. 1996).

In order to have fully

exhausted, petitioner must have raised claims on administrative
appeal1 that are identical to those he now presents in this
federal habeas corpus petition.
It plainly appears from petitioner’s arguments and exhibits
that he has not fully exhausted administrative remedies.

This

is true whether petitioner’s claim is that his application for
RRC placement was considered too late to allow exhaustion of
administrative and judicial remedies or that he was improperly
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.

3

denied RRC placement for the full 12 months.

Mr. Gaines does

not allege facts or provide exhibits showing that he filed a BP8, BP-9, BP-10, and a BP-11 challenging the decision as to the
length

of

his

RRC

placement

or

the

time

frame

of

the

RRC

placement decision 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

§

See Ciocchetti v. Wiley, 2009 WL 4918253 (10th Cir. Dec.

2241.”

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

guidelines

for

it

will

each

take

tier

of

too

long

the

BOP’s

based

upon

the

administrative

time
remedy

process, and it would be futile based upon BOP Director Harley
2

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

4

Lappin’s 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

remedies

is

unreasonable

and

speculates

extensions

available

to

prison

frame

for

administrative

that

authorities,

with

all

exhaustion

the
could

take as long as 140 to 220 days.
Petitioner

contends

that requiring full exhaustion would

deprive him of time in an RRC.

However, this, in and of itself,

is not 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

remedies

to

require

exhaustion

of

state

.

.

.

would

deprive a . . . prisoner of the speedy review of his grievance
which is so often essential to any effective redress,”
Court acknowledged

that

that

“exhaustion of . . . remedies takes

time” but concluded “there is no reason to assume that . . .
prison

administrators

.

.

.

will

not

act

expeditiously.”

Preiser v. Rodriguez, 411 U.S. 475, 494-95 (1973).
exhaustion

of

administrative

remedies

is

not

Similarly,

rendered

futile

simply because a prisoner anticipates he will not obtain relief
5

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.
In short,
extraordinary

petitioner
circumstances

exhaustion requirement.
2241

has not met his burden of showing

petition

is

that

would

exempt

him

from

the

Accordingly, the court finds this §

subject

to

being

dismissed

for

failure

to

exhaust.

FAILURE TO STATE CLAIM FOR RELIEF UNDER § 2241
The court also finds that Mr. Gaines has failed to state
facts to support a claim for relief under § 2241.
2241(c)(3)

pertinently

provides:

“The

writ

of

28 U.S.C. §
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 . . . .”

Petitioner 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

successful

an

RRC

to

reintegration

provide
into

the

the
6

“greatest

likelihood

of

community.”

However,

he

alleges no facts to demonstrate that proper consideration of
requisite statutory provisions was not provided in determining
his

RRC

placement.

In

fact,

he

provides

no

information

whatsoever regarding the RRC placement decision in his case, and
does not even allege that a decision has been rendered.
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’s Motion to Proceed
in forma pauperis (Doc. 2) is denied, and he is granted thirty
(30) days in which to submit the fee of $5.00 to the court.
IT

IS

FURTHER

ORDERED

that

within

the

same

thirty-day

period petitioner is required to submit his petition upon courtapproved 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 § 2241 forms to petitioner.
IT IS SO ORDERED.
DATED:

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

s/RICHARD D. ROGERS
United States District Judge

7