Johnson v. Hudson

Filing 7

MEMORANDUM AND ORDER ENTERED: The petition for writ of habeas corpus is dismissed without prejudice. Signed by District Judge John W. Lungstrum on 11/19/2020. Mailed to pro se party Kareem Johnson by regular mail. (jal)

Case 5:20-cv-03193-JWL Document 7 Filed 11/19/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KAREEM JOHNSON,
Petitioner,
v.

CASE NO. 20-3193-JWL

D. HUDSON, WARDEN,
USP-Leavenworth,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner
is in federal custody at USP-Leavenworth (“USPL”). Petitioner proceeds pro se and has paid the
filing fee. The Court ordered Respondent to show cause why the writ should not be granted. (ECF
No. 3). Respondent filed an Answer and Return (ECF No. 6), and Petitioner’s time for filing a
Traverse has passed.
I. Factual Background
Petitioner was sentenced in the United States District Court for the Southern District of
Florida on November 13, 2013 and is serving a sentence of 165 months of incarceration, followed
by five years of supervised release, for felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1); bank robbery by force or violence, in violation of 18 U.S.C. § 2113(a) and (d) and 2;
and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(a). (Ex.
A to Declaration of John Brantley, Petitioner’s Public Information Data, ECF No. 6–1, at 6-7.)
Petitioner’s projected release date is May 23, 2022, via good conduct time release. Id. at 5.

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II. Grounds and Requested Relief
Petitioner is challenging the Federal Bureau of Prisons (“BOP”)’s implementation of the
Second Chance Act of 2007. Petitioner wants the BOP to place him in a Residential Reentry
Center (“RRC,” commonly referred to as a halfway house) for twelve months. Petitioner asks the
Court to “ORDER the BOP in good faith to consider Petitioner on an individualized basis using
the five factors set forth in 18 U.S.C. 3621(b) plus take into account the language in 18 U.S.C.
3624(c)(6)(C) granting him the maximum amount of time in the RRC to provide the ‘greatest
likelihood of successful reintegration into the community.’” (ECF No. 1, Petition, at 18.)
III. Discussion
A. Standard of Review
To obtain habeas corpus relief, an inmate must demonstrate that “[h]e is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S. C. § 2241(c)(3).
B. Statutory Framework
Under the Second Chance Act of 2007, Pub. L. No. 110-199, § 251 (2008), federal inmates
are eligible to spend up to the final twelve months of their sentence in an RRC. 18 U.S.C. §
3624(c)(1). The purpose of this placement is to give the inmate an opportunity to adjust to and
prepare for reentry into the community. Id. Pre-release RRC placement decisions must be made
on an individual basis according to criteria set forth in the Second Chance Act and the factors listed
in 18 U.S.C. § 3621(b). See 28 C.F.R. § 570.22 (2008) (“Inmates will be considered for pre-release
community confinement in a manner consistent with 18 U.S.C. section 3621(b), determined on an
individual basis, and of sufficient duration to provide the greatest likelihood of successful
reintegration into the community, within the time frames set forth in this part.”). Under BOP

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policy and procedures, inmates are evaluated for RRC placement 17 to 19 months prior to their
release date. (ECF No. 6–2, Declaration of C. Masters, ¶6.)
The Second Chance Act amended a previous version of 18 U.S.C. § 3624(c), which had
limited pre-release RRC placement to the final six months or ten percent of a prisoner’s sentence,
whichever was less. After the statute was amended to expand the eligibility period to twelve
months, the BOP issued two memoranda to provide guidance to staff in implementing the new
amendment:
The first memorandum, issued on April 14, 2008, addressed the
statutory changes . . . emphasizing that the pre-release time frame
for RRC and CCC had been increased to twelve months and that
there was no percentage limitation on time to be served.
Additionally, the memorandum instructed staff that they must make
prerelease placement decisions “on an individual basis in every
inmate’s case” and that “the Bureau’s categorical timeframe
limitations on pre-release community confinement . . . are no longer
applicable, and must no longer be followed.” . . . Staff were
instructed to review inmates for pre-release placements at an earlier
time, e.g., seventeen to nineteen months before their projected
release dates, and to consider pre-release inmates on an individual
basis using the five factors from 18 U.S.C. § 3621(b). However, the
memorandum also stated that “[w]hile the Act makes inmates
eligible for a maximum of 12 months pre-release RRC placements,
Bureau experience reflects inmates’ pre-release RRC needs can
usually be accommodated by a placement of six months or less” and
that “[s]hould staff determine an inmate’s pre-release RRC
placement may require greater than six months, the Warden must
obtain the Regional Director’s written concurrence before
submitting the placement to the Community Corrections Manager.”
Garza v. Davis, 596 F.3d 1198, 1202–03 (10th Cir. 2010) (citations omitted).
The second BOP memorandum, issued on November 14, 2008, addressed requests for
transfer to an RRC by an inmate who had more than twelve months remaining on their sentence—
a “non-prerelease inmate.” It also stated that “[a]n RRC placement beyond six months should only
occur when there are unusual or extraordinary circumstances justifying such placement, and the

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Regional Director concurs.” Id. at 1203 (citation omitted). The Tenth Circuit has held that the
BOP memoranda indicate that the BOP recognizes its authority to place inmates in RRCs and/or
CCCs for periods exceeding six months, and they do not reflect any policy of categorical denial.
Id. (citing Ciocchetti v. Wiley, No. 09-1336, 2009 WL 4918253, at *3 (10th Cir. Dec. 22, 2009)).
C. Exhaustion
The petition is subject to dismissal for lack of exhaustion. Generally, a federal prisoner
must exhaust available administrative remedies before commencing a habeas corpus petition under
28 U.S.C. § 2241. Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986). The BOP has a fourpart administrative remedy program, which is codified at 28 C.F.R. Pt. 542.

Under the

administrative remedy program for inmates, an inmate is required to first attempt informal
resolution of the complaint, and if unsuccessful, he must raise his complaint, with the informal
resolution attached, to the Warden of the institution where he is confined. If dissatisfied with that
response, he may appeal his complaint to the Regional Director. If the inmate is dissatisfied with
the Regional Director’s response, the inmate may appeal to the National Inmate Appeals
Administrator in the Office of the General Counsel in Washington, D.C. Generally, an inmate has
not exhausted his remedies until he has sought review and received a final substantive response at
all three levels. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (finding that exhaustion requires
“using all steps that the agency holds out, and doing so properly (so that the agency addresses the
issues on the merits)”) (citation omitted). If an inmate does not receive a response within the
allotted time for a reply, including extensions, the inmate may consider the absence of a response
to be a denial at that level. See 28 C.F.R. § 542.18. To properly exhaust administrative remedies,
the petitioner must have presented the same claims in the administrative grievance that appear in
the court petition. Williams v. Wilkinson, 659 F. App’x 512, 514 (10th Cir. 2016) (unpublished)

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(citing Woodford, 548 U.S. at 94).
It plainly appears from Petitioner’s arguments and exhibits that he has not fully exhausted
his administrative remedies. Petitioner does not claim to have submitted any administrative
grievance related to RRC placement, and Respondent confirms that Petitioner has not. See ECF
No. 6–1, Brantley Decl., at ¶11.
Although exhaustion of available administrative remedies is a prerequisite for § 2241
habeas relief, a narrow exception to the exhaustion requirement applies if a petitioner can
demonstrate that exhaustion would be futile. Daybell v. Davis, 366 F. App’x 960, 962 (10th Cir.
2010) (unpublished) (citing Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam);
Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 235-36 (6th Cir. 2006)). Such exceptions “apply only
in ‘extraordinary circumstances,’ and [petitioner] bears the burden of demonstrating the futility of
administrative review.” Lanni v. Hollingsworth, No. 11-3066-RDR, 2012 WL 523744, at *3 (D.
Kan. Feb. 16, 2012) (citing Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994)).
Petitioner argues exhaustion should be excused in his case for two reasons. First, he asserts
exhaustion will take too long based on the time guidelines for each step of the administrative
remedy process and will cause him irreparable harm. Petitioner alleges the process of exhaustion
takes as long as six months and “would completely destroy any hope that the Petitioner has of
receiving twelve months in an RRC.” (ECF No. 1, Petition, at 11.) A similar “irreparable harm”
argument was rejected in Gaines v. Samuels, where the petitioner argued that requiring full
exhaustion would deprive him of time in an RRC. Gaines v. Samuels, No. 13-3019-RDR, 2013
WL 591383, at *2 (D. Kan. Feb. 14, 2013) (finding no extraordinary circumstance to warrant
waiver of exhaustion requirement); see also McIntosh v. English, No. 17-3011-JWL, 2017 WL
2118352 (D. Kan. May 16, 2017). As the Court noted in Gaines, “[t]he Supreme Court has

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required that even those inmates who may be entitled to immediate release exhaust their
administrative remedies.” Gaines, 2013 WL 591383, at *2 (citing Preiser v. Rodriguez, 411 U.S.
475, 494-95 (1973)).
Petitioner’s second argument for excusing exhaustion is that it would be futile. His futility
argument is based on statements made in 2008 by then-BOP Director Harley Lappin not to expect
any mass movement to halfway houses, suggesting that any time in an RRC beyond six months is
not productive, and claiming it was cheaper to house an inmate in a low security prison than to
place him in an RRC. (ECF No. 1, Petition, at 5.) Petitioner argues, “Based upon Mr. Lappin’s
public comments regarding the Act, the BOP has taken a position that they are not placing anyone
in an RRC for longer than six months despite the Act granting all inmates the right to be considered
for up to twelve months.” Id. at 15. As a result, Petitioner asserts, requiring him to exhaust his
administrative remedies would be futile. Id.
A very similar argument has been considered and rejected by the Tenth Circuit. See Garza
v. Davis, 596 F.3d 1198 (10th Cir. 2010). In Garza, the petitioner alleged that the BOP was
categorically denying review and transfer of eligible inmates to RRCs and community correction
centers in violation of statutes and regulations. He argued he should not be required to exhaust his
administrative remedies because it would be futile to do so, given the BOP’s predetermination of
the issues. Id. at 1200. The petitioner pointed to the two 2008 BOP memoranda discussed above,
which provided guidance to staff on proper implementation of the Second Chance Act. Id. at 120203. The Tenth Circuit found the petitioner did not demonstrate that administrative review would
be futile, and therefore, the petition was correctly dismissed for failure to exhaust administrative
remedies. Id. at 1204.
Here, Mr. Johnson relies on public statements made by a former head of the BOP twelve

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years ago to support his futility argument. Petitioner has not met his burden of demonstrating the
futility of administrative review or any extraordinary circumstances that would excuse the
exhaustion requirement. Consequently, the petition must be dismissed for failure to exhaust.

IT IS THEREFORE ORDERED THAT the petition for writ of habeas corpus is
dismissed without prejudice.

IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 19th day of November, 2020.

S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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