Hansen v. Maye et al
Filing
2
MEMORANDUM AND ORDER ENTERED: Petitioner is granted twenty (20) days in which to submit his petition upon court-approved forms and to satisfy the statutory filing fee by either paying the fee of $5.00 or submitting a properly completed and supp orted motion for leave to proceed in forma pauperis on court-approved forms. Within the same twenty-day period, petitioner is required to show good 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 02/26/15. Mailed to pro se party Brian Hansen by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN HANSEN,
Petitioner,
v.
CASE NO.
14-3193-RDR
CLAUDE MAYE, Warden,
United States Penitentiary,
Leavenworth, Kansas, et al.,
Respondents.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary,
Leavenworth, Kansas (USPL).
Mr. Hansen seeks an order requiring
reconsideration of the decision of prison officials to place him in
a Residential Reentry Center (RRC) for 6 instead of 9 or 12 months.
Having examined the petition and attachments together with the
relevant legal authority, the court finds that this action is subject
to dismissal because it is deficient in several ways.
Petitioner
is given time to cure the deficiencies and warned that this action
will be dismissed if he fails to comply.
BACKGROUND FACTS
As the background for his petition, Mr. Hansen alleges the
following.
In 2004, he was convicted in the United States District
Court for the Southern District of California of federal offenses
1
including importation of marijuana and bank robbery and sentenced
to “a total aggregated term of 157 months” in prison.
He is serving
this federal sentence and currently has a projected release date with
good time credit of September 9, 2015.
On January 9, 2014, Mr. Hansen “initiated this process” when
he made a written request to Mr. Johnson, his Unit Team Manager, that
he be considered for RRC placement for a period of 12 months.
was 18 months prior to his projected release date.
“refused his request.”
This
USPL officials
In July 2014 during his “program review”
Hansen “again requested consideration for RRC placement.”1
His case
manager Mr. Toot informed him that he “would not submit the request
until September” and that Hansen “was second on the list to be put
in for ‘halfway house.’”
On September 18, 2014, Toot “finally
submitted Hansen for consideration of RRC placement.”
This date was
“approximately less than 12 months before his release date.”
submitted for “6 months RRC placement” only.
He was
Hansen “address(ed)
these issues with his unit team, counselor, and Unit Manager Mr.
Johnson” but “was rejected.”
1
Generally, the BOP considers a federal inmate for RRC placement during the
inmate’s program review that falls within the requisite time frame. Petitioner
does not provide any information as to the consideration of his RRC placement at
or a written decision generated from a program review. He provides no information
as to any written decision made in response to either his January 2014 or July
2014 request. Another court found that “[i]n other § 2241 actions that address
RRC placements (citations omitted), a form is completed at the time an RRC review
is conducted by the unit manager and the inmate is notified of the determination
by the unit manager.” Atkins v. Garcia, 816 F.Supp.2d 1108, 1116 (D.Colo 2010).
That court further found that the “‘Review for Residential Reentry Center * * *
Second Chance Act of 2007 * * *’ form addresses all the factors identified under
§ 3621(b).” Id. That court also had an exhibit before it of the “Institutional
Referral RRC Placement form.” Id.
2
CLAIMS
Petitioner claims that “pursuant to the Second Chance Act of
2007 (SCA) codified at 18 U.S.C. § 3624,” prisoners are supposed “to
be automatically reviewed for RRC placement 17-19 months before their
projected release date.”
He then alleges that Bureau of Prisons
(BOP) staff at the USPL “refused to comply with” the “directives”
in the SCA “to ‘automatically’ initiate this process” 17 to 19 months
in advance of his projected release date.
He also claims that BOP
staff at the USPL “failed to consider the five factors enumerated
in § 3621(b).”
In addition, he claims that the SCA “amended the
statute to provide for the current eligibility time frame of twelve
months” and takes issue with the decision to allow his RRC placement
for only 6 months rather than the 9 to 12 months he requested and
claims to need.
Petitioner seeks a court order directing BOP officials at the
USPL to “conduct the individualized review of his application for
transfer to a Residential Re-Entry Center (RRC) required by law,”
to consider the five factors enumerated in 18 U.S.C. § 3621(b), and
to “re-submit his request of 9-12 months” RRC placement.
PETITION NOT ON FORMS
Local court rule requires that habeas corpus applications be
submitted upon court-approved forms.
these forms.
Petitioner has not utilized
Instead, he has filed a memorandum that contains many
3
unnecessary legal arguments and citations and not enough of the
necessary facts describing the administrative process that took
place in his particular case.
Mr. Hansen is required to submit his
application upon the proper forms.
If he fails to comply within the
prescribed time, this action may be dismissed without further notice.
FILING FEE NOT SATISFIED
The statutory fee for filing a federal habeas corpus petition
is $5.00.
Mr. Hansen has neither paid the fee nor submitted a motion
to proceed in forma pauperis (IFP).
This action may not proceed
until the filing fee prerequisite is satisfied in one of these two
ways.
A prisoner seeking to proceed IFP must submit a proper motion
upon court-approved forms containing an affidavit that includes a
statement of the prisoner’s assets.
28 U.S.C. § 1915(a)(1).
In
addition, the prisoner must submit a certified accounting of the
funds available to him in his institutional account.
D.Kan.Rule
9.1(g);2 see also Rule 3(a)(2) of the Rules Governing Section 2254
Cases in the United States District Courts (hereinafter “2254 Rules”)
(habeas petition must be accompanied by “a motion for leave to proceed
in forma pauperis, the affidavit required by 28 U.S.C. § 1915, and
2
D.Kan.Rule 9.1(g)(2)(A) provides:
Where a petitioner, movant, or plaintiff is an inmate of a penal
institution and desires to proceed without prepayment of fees, he or
she must also submit a certificate executed by an authorized officer
of the institution in which he or she is confined. The certificate
must state the amount of money or securities on deposit to his or her
credit in any account in the institution.
4
a certificate from the warden or other appropriate officer of the
place of confinement showing the amount of money or securities that
the petitioner has in any account in the institution”).
shall send the proper forms to Mr. Hansen.
The clerk
If he does not satisfy
the filing fee within the prescribed time, this action may be
dismissed without further notice.
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
This action is subject to dismissal because petitioner has not
exhausted the available BOP administrative remedies.
Even though
§ 2241 itself does not contain an express exhaustion requirement,
the Tenth Circuit Court of Appeals and this court have repeatedly
held that exhaustion of administrative remedies is a prerequisite
for § 2241 habeas relief.
Garza v. Davis, 596 F.3d 1198 (10th Cir.
2010); Samples v. Wiley, 349 Fed.Appx. 267, 269 (10th Cir. 2009); see
also Ciocchetti v. Wiley, 358 Fed.Appx. 20, 23-24 (10th Cir. 2009);
Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986); 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)).
Petitioner’s contrary
arguments based on citations that are not controlling in this Circuit
do not convince the court otherwise.
Administrative exhaustion is
generally required for three valid reasons, not just one: (1) to allow
5
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); Marine Mammal Conservancy, Inc.,
v. Dep’t of Agric, 134 F.3d 409, 414 (D.C.Cir. 1998).
In order to
have fully exhausted, the petitioner must have raised claims on
administrative appeal3 that are identical to those he now presents
in this federal habeas corpus petition.
There are “limited exceptions” to the exhaustion prerequisite,
including “a narrow futility exception,” which the Tenth Circuit 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, 358 Fed.Appx. at
24 (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)).
However, such exceptions “apply only in
3
The BOP provides a multi-level Administrative Remedy Program for inmates
to obtain “formal review of an issue which relates to any aspect of their
confinement.” 28 C.F.R. § 542.10(a). 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 submit a formal Administrative
Remedy Request to the appropriate staff member for consideration by the Warden
(BP-9). 28 C.F.R. § 542.14(c)(4). Next, an inmate may appeal an adverse decision
to the Regional Director (BP-10). 28 C.F.R. § 542.15(a). Finally, the inmate
may appeal to the BOP’s General Counsel (BP-11). Id. “Appeal to the General
Counsel is the final administrative appeal.” 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.
6
‘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).
Mr. Hansen admits that he has not fully exhausted administrative
remedies.
He generally argues that exhaustion in habeas corpus
cases is not a statutory or jurisdictional prerequisite and may be
waived by the court.
He contends that exhaustion should be waived
in this particular case because his pursuit of administrative
remedies “would be futile and irreparable injury would result.”
In
support of these arguments, he alleges that BOP officials at the USPL
“believe they are complying with national policy”; he seeks 9 to 12
months of RRC placement when he only has 12 months left before his
projected release date; the BOP “administrative remedy process takes
6 months to complete” and he “is expected to be released before
completion of the administrative process.”
Petitioner’s statement that the BOP officials at the USPL
believe they are following national policy does not prove futility.
Relevant BOP memoranda “clearly indicate” that “the BOP recognizes
its authority to place inmates in RRCs . . . for periods of time
exceeding six months” and plainly “instruct BOP staff to individually
consider each request for a transfer based on the factors set forth
in § 3621(b).”
Ciocchetti, 358 Fed.Appx. at 24; see 28 C.F.R. §
7
570.21(a), § 570.22.4
The BOP memoranda “do not reflect any policy
4
In Ciocchetti, the Tenth Circuit explained the statutory provisions that
are at issue in cases like this one:
Pursuant to 18 U.S.C. § 3621(b), the BOP has the authority to
designate where a federal inmate will be imprisoned and to “direct
the transfer of a prisoner from one penal or correctional facility
to another.” 18 U.S.C. § 3621(b). RRCs . . . are among the penal
or correctional facilities which the BOP may designate for inmate
placement.
In making any designation and/or transfer decisions pursuant
to § 3621(b), the BOP is instructed to consider the following five
factors:
(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(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility
as appropriate; and
(5) any pertinent policy statement issued by the Sentencing
Commission pursuant to section 994(a)(2) of title 28.
Id.
Also at issue in this case is the effect of 18 U.S.C. § 3624(c).
This statute governs “pre-release custody,” and directs the BOP to
transfer inmates to RRCs . . . as they approach the end of their sentences
in an effort to better prepare the inmates for re-entry into the
community. Prior to 2008, § 3624(c) limited the time frame during which
an inmate was eligible for pre-release custody in a RRC . . . to the final
six months or ten percent of his or her sentence, whichever was less.
18 U.S.C. § 3624(c) (West 2000), amended by Second Chance Act of 2007,
Pub.L. No. 110-199, § 251, 122 Stat. 657, 692 (2008). This eligibility
period has, however, been expanded and now § 3624(c) provides in relevant
part:
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.
8
of categorical denial.”
Cir. 2010).
Garza v. Davis, 596 F.3d 1198, 1204 (10th
Petitioner has not alleged any facts to suggest that
appropriate BOP policies were not followed in determining his RRC
placement term, or that the BOP would not have followed the statutes
and proper policies in deciding any administrative appeal.
Exhaustion of administrative remedies is not rendered futile
simply because a federal prisoner anticipates that he will be
released to an RRC before he will have completed an administrative
appeal from the decision as to his RRC placement.
See Samples v.
Wiley, 349 Fed.Appx. 267, 269 (10th Cir. 2009)(Futility argument not
supported by contention that administrative process is too slow and
18 U.S.C. § 3624(c).
The BOP has . . . issued two memoranda providing guidance to its staff
regarding the proper implementation of these statutes and their
corresponding regulations. The first memorandum, issued on April 14,
2008, addresses the issue of pre-release inmates. In relevant part,
this memorandum: (1) recognizes that the Second Chance Act of 2007
has increased the maximum available RRC or CCC placement time for
pre-release inmates to 12 months; (2) directs BOP staff to review each
pre-release inmate’s eligibility for RRC or CCC placement on an
individual basis seventeen to nineteen months before their projected
release dates; (3) instructs BOP staff that in conducting these
individual reviews they are to consider the five-factor criteria set
forth in § 3621(b); and (4) mentions that “Bureau experience reflects
inmates’ pre-release RRC needs can usually be accommodated by a
placement of six months or less”. . . .
The second BOP memorandum, issued November 14, 2008, addresses
non-pre-release inmates. As relevant here, this memorandum states
that upon the receipt of an inmate’s request to be transferred to an
RRC or CCC before his prerelease 12-month period, BOP staff must make
an individualized determination of the inmate’s eligibility for such
a transfer based on the five factors set forth in § 3621(b). It also
states that “[a]n RRC placement beyond six months should only occur
when there are unusual or extraordinary circumstances justifying such
placement . . . .” ROA, Vol. I., p. 35.
Id. at 22-23.
9
it was unlikely the BOP procedure would be completed by the date on
which petitioner would have needed to be transferred to an RRC in
order to receive a twelve-month RRC placement).
The Supreme Court
has required even those inmates who may be entitled to immediate
release to exhaust their administrative remedies.
Rodriguez, 411 U.S. 475, 494–95 (1973).
Preiser v.
Given the time limits for
responses in the BOP regulations, petitioner’s statement that the
review process may take six months appears to be pure speculation
and is not supported by any facts.
Had Mr. Hansen continued to pursue
his administrative remedies at the appropriate time, he might have
either “achieved a result in his favor or otherwise obtained a final
determination concerning his RRC-placement request.”
349 Fed.Appx. at 269.
See Samples,
Petitioner’s “decision to put off engaging
the BOP administrative process, and any delay or alleged futility
that decision” may have “created, does not excuse his failure to
exhaust.”
Id. at 270.
Petitioner does not explain why federal court is a better place
to seek the reconsideration and longer RRC placement he desires than
the agency review process.
The administrative remedy process is a
“particularly well-suited vehicle” by which he could have requested
more expeditious consideration of his requests or reconsideration
of his RRC placement for 6 months.
By contrast, this court
proceeding “is particularly ill-suited to make such a determination,
given that the Court lacks the expertise possessed by the BOP in
10
evaluating the § 3621(b) factors.”
WL 1944801, *3 (W.D. Okla. 2008).
See Waldroop v. Scibana, 2008
The only things suggested by the
sparse record presented by petitioner in this case are that USPL
officials considered him for RRC placement and granted RRC placement
for 6 months rather than the 9 to 12 months he sought.
that
petitioner
believed
USPL
officials
To the extent
unreasonably
delayed
consideration of his initial request, or improperly exercised their
discretion without considering all the requisite factors, he was free
to invoke the administrative remedies available to him to obtain
review of those claims, and that process would have generated a record
susceptible to review.
Id.
FAILURE TO STATE CLAIM FOR RELIEF UNDER § 2241
In addition, the court finds that Mr. Hansen 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.”
“Habeas
corpus
requirements,”
petitions
and
“federal
must
courts
meet
are
heightened
authorized
pleading
to
dismiss
summarily any habeas petition that appears legally insufficient on
its face.”
2254 Rules.
McFarland v. Scott, 512 U.S. 849, 856 (1994); Rule 2(c),
Under Rule 2(c), “a petitioner must state specific,
particularized facts which entitle him or her to habeas corpus relief
11
for each ground specified.”
(8th Cir. 1990).
Adams v. Armontrout, 807 F.2d 332, 334
“These facts must consist of sufficient detail to
enable the court to determine, from the face of the petition alone,
whether the petition merits further habeas corpus review.”
Id.
Petitioner’s claim that the BOP did not consider his application
for placement on an individualized basis using the five factors in
18 U.S.C. § 3621(b) is completely conclusory.
He does not summarize
the substance or provide an exhibit of any agency decision made in
his case, including that in response to his initial written request,
that which resulted from any progress review at which his RRC
placement was considered, or that which granted and notified him of
his 6-month placement.
whatsoever
to
support
Thus, Mr. Hansen fails to allege any facts
his
claim
that
his
Second
Chance
Act
Consideration submitted on September 18, 2014, was decided without
consideration of the requisite statutory factors or otherwise
violated federal statutory or constitutional law.
The only exhibit provided by petitioner relating to his RRC
placement is his written request, which included his laudable history
of class and program participation during his confinement.
His hard
work and pursuit of education and training through such programs will
hopefully assist Mr. Hansen in his reentry efforts.
He also wrote
that he has been confined for many years, needs time to locate
12
employment and obtain a driver’s license,5 needs a job to pay living
expenses, has to start from scratch to obtain clothes and tools, has
no family, and is unfamiliar with the area in which he will be
released.
However, these circumstances are not shown to be unusual
for one being released from a federal prison, and no facts are
presented
demonstrating
that
Mr.
presents a “peculiar urgency.”
Hansen’s
personal
situation
In any event, the “history and
characteristics of the prisoner” is but one of five factors to be
considered under § 3621(b).
Petitioner’s bare claim that the SCA “amended the statute to
provide for the current eligibility time frame of twelve months”
presented with his allegation that BOP officials at the USPL
“rejected (his) request for consideration of 9-12 months RRC
placement” evinces no federal constitutional or statutory violation
during the consideration of his case or in the decision itself.
The
BOP is vested with broad authority to determine the length of a
prisoner’s placement in an RRC.
See 18 U.S.C. § 3624(c).
Under §
3621(b), the BOP has broad discretion to designate any appropriate
and suitable place for the prisoner’s confinement, after considering
the statutory factors.
Id.
Nothing in the SCA indicates a
Congressional intent to impose any limitations or restrictions upon
the BOP’s authority in making decisions with regard to RRC placement.
5
28 C.F.R. § 571.13(d) provides that BOP “Staff shall help an inmate obtain
proper identification (social security card, driver’s license . . .) prior to
release.”
13
Furthermore, the twelve-month mark in the Second Chance Act is an
express statutory maximum and not a mandated minimum.
§ 3624(c)(1).
See 18 U.S.C.
Section 3624(c) “does not entitle prisoners to a
twelve-month placement in an RRC.”
Atkins, 816 F.supp.2d at 1116.
Thus, petitioner does not show that the six-month placement decision
in his case was outside the statutory authority or accepted agency
policy.
Petitioner’s claim that the process to decide his RRC placement
was not “automatically” initiated 17 to 19 months in advance of his
projected release date” is somewhat called into question by his own
allegations.
Mr. Hansen alleges and shows that he first requested
RRC placement on January 9, 2014.
While he states that this was 18
months before his projected release date; January 9, 2014, was 20
months before that date.
Thus, Mr. Hansen “initiated” his own
RRC-placement process a month before the start of the two-month time
period during which he claims it must have been automatically
initiated by USPL officials.
He does not provide any different date
on which USPL officials later “initiated the process” and explain
how that date violated the relevant statutes and regulations or
resulted in any actual prejudice.
The September 2014 date on which
USPL officials actually forwarded their request for his six-month
placement in an RRC can surely not be the date on which consideration
of his correct placement was “initiated.”
Even if petitioner presented sufficient facts to show that USPL
14
officials failed to consider him for RRC placement in a timely manner
and failed to consider the statutory factors, these are precisely
the types of actions that must be presented in the first instance
to the agency by way of the administrative review process.
For the reasons stated above, the court finds that this petition
should be dismissed for failure to exhaust administrative remedies
and failure to state sufficient facts to support a claim under § 2241.
Petitioner is given twenty (20) in which to show good cause why this
action should not be dismissed for failure to exhaust and for failure
to state a claim under § 2241.
IT IS THEREFORE BY THE COURT ORDERED that petitioner is granted
twenty (20) days in which to submit his petition upon court-approved
forms and to satisfy the statutory filing fee by either paying the
fee of $5.00 or submitting a properly completed and supported motion
for leave to proceed in forma pauperis on court-approved forms.
IT IS FURTHER ORDERED that within the same twenty-day period
petitioner is required to show good 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 IFP and § 2241 forms
and to send a copy of this Memorandum and Order to petitioner and
to the Court of Appeals for the Tenth Circuit.
IT IS SO ORDERED.
DATED:
This 26th day of February, 2015, at Topeka, Kansas.
15
s/RICHARD D. ROGERS
United States District Judge
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