PIROLLO v. THE FEDERAL BUREAU OF PRISONS et al

Filing 8

OPINION re 1 Petition for Writ of Habeas Corpus filed by LAWRENCE PIROLLO. Signed by Judge Noel L. Hillman on 10/15/09. (th, )

NOT FOR PUBLICATION U N I T E D STATES DISTRICT COURT D I S T R I C T OF NEW JERSEY ________________________________ : L A W R E N C E PIROLLO, : : Petitioner, : : v. : : F B O P , et al., : : Respondents. : ________________________________ : APPEARANCES: L a w r e n c e Pirollo, Pro Se #45359-066 F C I Fort Dix- Camp P . O . Box 2000 F o r t Dix, NJ 08640 M a r k Christopher Orlowski A s s i s t a n t U.S. Attorney O f f i c e of the U.S. Attorney 4 0 2 East State Street, Rm. 430 T r e n t o n , NJ 08608 A t t o r n e y for Respondents

C i v i l Action No. 09-3034 (NLH)

OPINION

H I L L M A N , District Judge P e t i t i o n e r Lawrence Pirollo, a prisoner currently confined at t h e Federal Correctional Institution at Fort Dix, New Jersey, has s u b m i t t e d a petition for a writ of habeas corpus pursuant to 28 U . S . C . § 2241.1 The proper respondent named by Petitioner is Respondent has filed an Answer and the

W a r d e n Jeff Grondolsky.

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Section 2241 provides in relevant part:

( a ) Writs of habeas corpus may be granted by the S u p r e m e Court, any justice thereof, the district courts a n d any circuit judge within their respective jurisdictions. *** ( c ) The writ of habeas corpus shall not extend to a p r i s o n e r unless-... (3) He is in custody in violation o f the Constitution or laws or treaties of the United S t a t e s ....

administrative record of the case. p e t i t i o n will be dismissed.

For the following reasons, the

BACKGROUND P e t i t i o n e r is presently confined pursuant to a 1993 c o n v i c t i o n for Continuing Criminal Enterprise, in violation of 21 U . S . C . § 848. 2010. P e t i t i o n e r alleges that he was notified in May 2009 that he w o u l d be recommended for a 150 to 180-day pre-release placement in a Residential Re-entry Center ("RRC"). (Petition, ¶ 21). Petitioner's anticipated release date is July 30,

Petitioner initiated the Bureau of Prisons Administrative Remedy P r o g r a m .2 He first filed a BP-8 with his Unit Team, which was

d e n i e d , and then a BP-9 with the Warden, which was also denied;

The BOP Administrative Remedy Program is a multi-tier p r o c e s s that is available to inmates confined in institutions o p e r a t e d by the BOP for "review of an issue which relates to any a s p e c t of their confinement." 28 C.F.R. § 542.10. An inmate must i n i t i a l l y attempt to informally resolve the issue with i n s t i t u t i o n a l staff. 28 C.F.R. § 542.13(a). If informal r e s o l u t i o n fails or is waived, an inmate may submit a BP-9 Request t o "the institution staff member designated to receive such R e q u e s t s (ordinarily a correctional counsel)" within 20 days of t h e date on which the basis for the Request occurred, or within a n y extension permitted. 28 C.F.R. § 542.14. An inmate who is d i s s a t i s f i e d with the Warden's response to his BP-9 Request may s u b m i t a BP-10 Appeal to the Regional Director of the BOP within 2 0 days of the date the Warden signed the response. 28 C.F.R. § 5 4 2 . 1 5 ( a ) . The inmate may appeal to the BOP's General Counsel on a BP-11 form within 30 days of the day the Regional Director s i g n e d the response. Id. Appeal to the General Counsel is the f i n a l administrative appeal. Id. If responses are not received b y the inmate within the time allotted for reply, "the inmate may c o n s i d e r the absence of a response to be a denial at that level." 28 C.F.R. § 542.18.

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that is, the Unit Team and the Warden responded with the same p l a c e m e n t recommendation of 150-180 days. (Pet., ¶¶ 22-25).

P e t i t i o n e r filed a Regional Office appeal simultaneously with t h i s habeas petition, and thus has not filed an appeal with G e n e r a l Counsel. (Pet., ¶ 5). Petitioner admits that he has not

e x h a u s t e d administrative remedies, but argues that it would be " f u t i l e " to do so. H e r e , Petitioner alleges that the Bureau of Prisons failed to c o n s i d e r him for the full one-year maximum RRC placement under S e c o n d Chance Act of 2007, 18 U.S.C. § 3624(c)(1), which became e f f e c t i v e April 9, 2008.3 In addition, he challenges the 150-180

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The Second Chance Act provides, in pertinent part:

( 1 ) In General.-The Director of the Bureau of Prisons s h a l l , to the extent practicable, ensure that a p r i s o n e r serving a term of imprisonment spends a p o r t i o n of the final months of that term (not to exceed 1 2 months), under conditions that will afford that p r i s o n e r a reasonable opportunity to adjust to and p r e p a r e for the reentry of that prisoner into the c o m m u n i t y . Such conditions may include a community c o r r e c t i o n a l facility. (2) Home confinement authority.-The authority under t h i s subsection may be used to place a prisoner in home c o n f i n e m e n t for the shorter of 10 percent of the term o f imprisonment of that prisoner or 6 months. ... (4) No limitations.-Nothing in this subsection shall be c o n s t r u e d to limit or restrict the authority of the D i r e c t o r of the Bureau of Prisons under section 3621. ... (6) Issuance of regulations.-The Director of the Bureau o f Prisons shall issue regulations pursuant to this s u b s e c t i o n not later than 90 days after the date of the

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day RRC placement recommendation on the merits, alleging that the B O P did not fully consider the factors governing pre-release RRC placement. (Pet., ¶¶ 16, 25). He further alleges that the Bureau

o f Prisons should have instituted the RRC placement process e a r l i e r , in order to allow for time to complete the administrative r e v i e w process before the one-year maximum RRC placement period h a s begun. (Pet., ¶ 27). Petitioner alleges that this Court

s h o u l d excuse his failure to exhaust administrative remedies on t h e ground that he will suffer irrevocable injury, in the form of a n RRC placement of less than one year, if he must delay judicial r e v i e w until completion of the administrative review program. (Pet., ¶¶ 5-6). DISCUSSION A. S t a n d a r d of Review A writ of habeas corpus shall not extend to a prisoner unless h e is in custody "in violation of the Constitution or laws or t r e a t i e s of the United States." 28 U.S.C. § 2241(c)(3).

e n a c t m e n t of the Second Chance Act of 2007, which shall e n s u r e that placement in a community correctional f a c i l i t y by the Bureau of Prisons is(A) conducted in a manner consistent with s e c t i o n 3621(b) of this title; (B) determined on an individual basis; and (C) of sufficient duration to provide the g r e a t e s t likelihood of successful r e i n t e g r a t i o n into the community. 18 U.S.C. § 3624(c).

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A pro se pleading is held to less stringent standards than m o r e formal pleadings drafted by lawyers. See Estelle v. Gamble,

4 2 9 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions See

m u s t be construed liberally and with a measure of tolerance.

R o y c e v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney G e n e r a l , 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. B r i e r l e y , 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 9 1 2 (1970). B. Analysis P e t i t i o n e r admits that he has not exhausted his a d m i n i s t r a t i v e remedies, but that exhaustion should be excused as f u t i l e because exhaustion cannot be completed in a timely manner. A l t h o u g h 28 U.S.C. § 2241 contains no statutory exhaustion r e q u i r e m e n t , a federal prisoner ordinarily may not bring a p e t i t i o n for writ of habeas corpus under 28 U.S.C. § 2241, c h a l l e n g i n g the execution of his sentence, until he has exhausted a l l available administrative remedies. See, e.g., Callwood v.

E n o s , 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States P a r o l e Comm'n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v. A l l d r e d g e , 481 F.2d 303, 306 (3d Cir. 1973). d o c t r i n e promotes a number of goals: ( 1 ) allowing the appropriate agency to develop a f a c t u a l record and apply its expertise facilitates j u d i c i a l review; (2) permitting agencies to grant the r e l i e f requested conserves judicial resources; and (3) The exhaustion

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providing agencies the opportunity to correct their own e r r o r s fosters administrative autonomy. G o l d b e r g v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J. 1999), aff'd, 2 4 8 F.3d 1130 (3d Cir. 2000); see also Moscato v. Federal Bureau o f Prisons, 98 F.3d 757, 761 (3d Cir. 1996). Nevertheless,

e x h a u s t i o n of administrative remedies is not required where e x h a u s t i o n would not promote these goals. See, e.g., Gambino v.

M o r r i s , 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required w h e r e petitioner demonstrates futility); Lyons v. U.S. Marshals, 8 4 0 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where i t "would be futile, if the actions of the agency clearly and u n a m b i g u o u s l y violate statutory or constitutional rights, or if t h e administrative procedure is clearly shown to be inadequate to p r e v e n t irreparable harm"); Carling v. Peters, 2000 WL 1022959, *2 ( E . D . Pa. 2000) (exhaustion not required where delay would subject p e t i t i o n e r to "irreparable injury"). P e t i t i o n e r has not alleged any facts that would permit this C o u r t to find that exhaustion of his administrative remedies would b e futile or that requiring exhaustion would subject Petitioner to " i r r e p a r a b l e injury." By characterizing the process as futile, Without

P e t i t i o n e r presupposes that his grievance will be denied.

a full administrative record regarding the claim asserted here, t h i s Court cannot determine whether the decision was made in a c c o r d a n c e with law. See, e.g., Gamble v. Schultz, No. 09-3949,

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2009 WL 2634874 (D.N.J. Aug. 24, 2009); Harrell v. Schultz, No. 0 9 - 2 5 3 2 , 2009 WL 1586934 (D.N.J. June 2, 2009). F i n a l l y , contrary to Petitioner's argument, nothing in the S e c o n d Chance Act entitles Petitioner to a halfway house placement l o n g e r than the 180 days already approved. Those pre-release

p l a c e m e n t decisions are committed, by statute, to the discretion o f the Director of the Bureau of Prisons, whose exercise of d i s c r e t i o n is to be guided by the enumerated considerations. CONCLUSION F o r the reasons set forth above, the Petition will be d i s m i s s e d without prejudice for failure to exhaust administrative remedies. An appropriate order follows.

/S/NOEL L. HILLMAN NOEL L. HILLMAN U n i t e d States District Judge D a t e d : October 15, 2009 A t Camden, New Jersey

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