ORTIZ v. ZICKEFOOSE
Filing
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OPINION. Signed by Judge Noel L. Hillman on 12/8/2011. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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D. ZICKEFOOSE,
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Respondent.
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________________________________:
ERNESTO ORTIZ,
Civil Action No. 10-6767 (NLH)
O P I N I O N
APPEARANCES:
Ernesto Ortiz, Pro Se
09804-014
Federal Correctional Institution
P.O. Box 2000
Fort Dix, NJ 08640
Mark Christopher Orlowski
Assistant U.S. Attorney
Office of the U.S. Attorney
402 East State Street, Room 430
Trenton, NJ 08608
Attorney for Respondent
HILLMAN, District Judge
Petitioner, Ernesto Ortiz, a federal prisoner currently
confined at the Federal Correctional Institution (“FCI”) in Fort
Dix, New Jersey, submitted a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2241,1 seeking an Order requiring
1
Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
that the Federal Bureau of Prisons (“BOP”) grant him “the maximum
amount of time in [an] RRC”2 pursuant to the Second Chance Act of
2007 (“SCA”).
(Petition at p. 18).
The named respondent
(hereinafter, the “Government”) is Donna Zickefoose, the Warden
at FCI Fort Dix.
On May 18, 2011, counsel for the Government
filed a motion to dismiss the petition on the ground that
Petitioner deliberately failed to exhaust the available
administrative remedies before commencing this action, in
contravention of controlling decisional law.
Petitioner has not
responded to the Government's motion.
Because it appears from a review of the submissions that
Petitioner did not attempt to exhaust his administrative remedies
before filing this petition, the motion to dismiss will be
granted, and the petition will be dismissed without prejudice.
BACKGROUND
A.
The Second Chance Act
Residential Re–Entry Center (“RRC”) assignments are governed
by 18 U.S.C. § 3624(c)(1), which was amended in 2007 by the
* * *
(c) The writ of habeas corpus shall not extend to a
prisoner unless—... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ....
2
“RRC” refers to a Residential Reentry Center, more
commonly known as a halfway house.
2
Second Chance Act, Pub. L. No. 110–199, effective April 9, 2008.
In essence, the Act extended the maximum amount of time that the
Bureau of Prisons (“BOP”) may place an inmate in an RRC from 180
days to twelve months.
Regularly referred to as the “Second Chance Act,” the
amended statute provides, in pertinent part:
(1) In General.—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.
(2) Home confinement authority.—The authority under
this subsection may be used to place a prisoner in home
confinement for the shorter of 10 percent of the term
of imprisonment of that prisoner or 6 months.
...
(4) No limitations.—Nothing in this subsection shall be
construed to limit or restrict the authority of the
Director of the Bureau of Prisons under section 3621.
...
(6) Issuance of regulations. The Director of the Bureau
of Prisons shall issue regulations pursuant to this
subsection not later than 90 days after the date of the
enactment of the Second Chance Act of 2007, which shall
ensure that placement in a community correctional
facility by the Bureau of Prisons is(A)
conducted in a manner consistent with section
3621(b) of this title;
(B) determined on an individual basis; and
(C)
of sufficient duration to provide the
greatest likelihood of successful
reintegration into the community.
3
18 U.S.C. § 3624(c).
As noted in the statute, the BOP was
ordered to issue regulations not later than 90 days after the
date of the enactment of the Second Chance Act, to ensure that
placement was conducted consistently with § 3621(b) of the
statute, that the determination was individualized, and that the
duration of placement was sufficient.
Section 3621(b) states:
(b) Place of imprisonment. The Bureau of Prisons shall
designate the place of the prisoner's imprisonment. The
Bureau may designate any available penal or
correctional facility that meets minimum standards of
health and habitability established by the Bureau,
whether maintained by the Federal Government or
otherwise and whether within or without the judicial
district in which the person was convicted, that the
Bureau determines to be appropriate and suitable,
considering—
(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)
title 28 ...
... Any order, recommendation, or request by a
sentencing court that a convicted person serve a term
of imprisonment in a community corrections facility
shall have no binding effect on the authority of the
Bureau under this section to determine or change the
place of imprisonment.
4
On April 14, 2008, the BOP issued a “Memorandum for Chief
Executive Officers”, providing staff guidance for implementing
the Second Chance Act.
The memorandum indicated that the BOP's
then-existing time frame on pre-release community confinement
placement was no longer applicable and should not be followed,
that certain adjustments were necessary to the Program Statement
7310.04 concerning review of inmates for pre-release RRC
placement, and that each inmate's pre-release RRC decision must
be analyzed and supported under the § 3621(b) factors, cited
above.
Among other guidelines, the memorandum provided:
While 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.
Should 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.
BOP Memo, April 14, 2008, as cited in Strong v. Schultz, 559 F.
Supp.2d 556, 562 (D.N.J. 2009).
Subsequently, the BOP issued the required regulations,
effective October 21, 2008, setting forth procedures for
evaluating inmates' placement decisions to RRCs or home
detention.
See 28 C.F.R. §§ 570.20–570.22.
The regulations do
not include the requirement in the April 14, 2008 memo for
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approval from the Regional Director for pre-release RRC placement
beyond six-months.3
B.
Factual Background
Petitioner was sentenced on July 29, 2008, in the United
States District Court for the District of Connecticut, to serve a
48-month prison term for Interfering with Interstate Commerce by
Threats of Violence and Aiding and Abetting, in violation of 18
3
Title 28 of the Code of Federal Register, section 570.22
states: “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.”
The time frames noted are set forth in section 570.21, which
states:
(a) Community confinement. Inmates may be designated to
community confinement as a condition of pre-release
custody and programming during the final months of the
inmate's term of imprisonment, not to exceed twelve
months.
(b) Home detention. Inmates may be designated to home
detention as a condition of pre-release custody and
programming during the final months of the inmate's
term of imprisonment, not to exceed the shorter of ten
percent of the inmate's term of imprisonment or six
months.
(c) Exceeding time-frames. These time-frames may be
exceeded when separate statutory authority allows
greater periods of community confinement as a condition
of pre-release custody.
28 C.F.R. § 570.21.
6
U.S.C. § 1951.
An inmate at FCI Fort Dix, Petitioner's projected
good conduct release date is March 30, 2012.
On February 25, 2011, Petitioner’s Unit Team recommended an
RRC placement of 150-180 days.
Petitioner filed this habeas petition on December 28, 2010,
prior to the Unit Team recommendation.
Petitioner admits in his
petition that he has not filed a request for administrative
remedy before commencing this action because he believes the
administrative remedy process would be futile.
(Pet. at p. 14).
On May 18, 2011, the Government filed a motion to dismiss the
petition based on Petitioner's failure to exhaust his
administrative remedies.
The Government confirms that Petitioner
has not filed any administrative remedy request while in BOP
custody. (Declaration of Tara Moran, ¶ 3).
DISCUSSION
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, a federal prisoner ordinarily may not bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the execution of his sentence, until he has exhausted
all available administrative remedies.
See, e.g., Callwood v.
Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States
Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v.
Alldredge, 481 F.2d 303, 306 (3d Cir. 1973).
doctrine promotes a number of goals:
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The exhaustion
(1) allowing the appropriate agency to develop a
factual record and apply its expertise facilitates
judicial review; (2) permitting agencies to grant the
relief requested conserves judicial resources; and (3)
providing agencies the opportunity to correct their own
errors fosters administrative autonomy.
Goldberg v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J. 1999), aff'd,
248 F.3d 1130 (3d Cir. 2000).
See also Moscato v. Federal Bureau
of Prisons, 98 F.3d 757, 761 (3d Cir. 1996).
Nevertheless,
exhaustion of administrative remedies is not required where
exhaustion would not promote these goals.
See, e.g., Gambino v.
Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required
where petitioner demonstrates futility); Lyons v. U.S. Marshals,
840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where
it “would be futile, if the actions of the agency clearly and
unambiguously violate statutory or constitutional rights, or if
the administrative procedure is clearly shown to be inadequate to
prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,
*2 (E.D. Pa. 2000) (exhaustion not required where delay would
subject petitioner to “irreparable injury”).
In Snisky v. Pugh, the petitioner did not deny his failure
to exhaust; however, the Court excused exhaustion because the
petitioner was scheduled to be released, and his claim was
clearly without merit.
See 974 F. Supp. 817, 819 (M.D. Pa.1997),
rev'd on other grounds, 159 F.3d 1353 (3d Cir. 1998).
The court
recognized that exhaustion could be excused where it would be
futile.
See id.
In Snisky, the court found that the BOP
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“unequivocally” would deny the petitioner's relief, and he would
return to the district court after the denial.
Thus, the court
addressed the claims on the merits.
Likewise, in Ferrante v. Bureau of Prisons, the court found
that if the petitioner's claim were meritorious, he would be
released to a halfway house relatively soon; therefore,
dismissing the petition for lack of exhaustion would be futile.
See 990 F. Supp. 367, 370 (D.N.J. 1998) (citing Snisky, 974 F.
Supp. at 819–20).
Further, the court held that the petitioner's
claim was clearly without merit, so that the exhaustion issue
need not be reached.
See id.; see also Fraley v. Bureau of
Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (stating that exhaustion
was not required because it was futile, as Regional Director
would “almost certainly” have denied request, and term of
imprisonment was completed).
In this case, Petitioner admits that he did not exhaust
administrative remedies.
He maintains that he should be excused
from pursuing administrative relief because it would be futile.
In particular, Petitioner asserts that there would be
insufficient time for him to complete the administrative review
process before his hypothetical twelve month RRC placement date.
Further, he contends that the futility doctrine is applicable
here because the BOP has adopted an inflexible placement policy
that violates the SCA.
(Pet., pp. 14-17).
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The Government argues that Petitioner intentionally bypassed
the administrative process, and that regardless of the time
frame, exhaustion should not be deemed futile.
Typically, courts have not applied the futility exception
based on a timeliness argument.
See Velez v. Zickefoose, 2010 WL
5186158 at *3–4 (D.N.J. Dec. 15, 2010) (the self-serving strategy
of bypassing administrative remedies and arguing futility—because
there is insufficient time for those remedies to run their
course—has never been rewarded by the courts), quoting Shoup v.
Schultz, 2009 WL 1544664, *4–5 (D.N.J. June 2, 2009) (the
self-described timing calamity, if any, was of the inmate's own
making, and such hypothetical self-inflicted distress cannot
serve to excuse the exhaustion requirement).
See also Winters v.
Warden, FCI Ft. Dix, 2009 WL 2928549, *3 (D.N.J. Sept. 10, 2009);
Malvestuto v. Martinez, 2009 WL 2876883, *3 (M.D. Pa. Sept.1,
2009) (“Exhaustion of administrative remedies is not rendered
futile simply because a prisoner anticipates he will be
unsuccessful in his administrative appeals before the twelve
month pre-release mark, which is simply a statutory maximum and
not a mandate.”).
Likewise, courts have found the futility argument unavailing
where the prisoner simply asserts that the BOP has an inflexible
placement policy and won't consider twelve month RRC placements.
See, e.g., Levon v. Zickefoose, 2010 WL 3025135, *4 (D.N.J. July
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30, 2010) (rejecting futility argument based on the inmate's
presumption that his administrative grievance would be denied and
concluding that a full administrative record was necessary for
the Court to determine whether the RRC placement decision had
been made in accordance with the law); Craig v. Zickefoose, 2010
WL 234908, *3–4 (D.N.J. Jan. 15, 2010) (petition dismissed for
failure to exhaust where the inmate alleged that exhaustion
should be excused because he was challenging the BOP policy of
not affording more than six month RRC placements); Brown v.
Grondolsky, 2009 WL 2778437 (D.N.J. Aug. 31, 2009) (dismissing
petition for failure to exhaust where there was no demonstrable
record of such BOP practice); Shoup, 2009 WL 1544664 at *4
(“While Petitioner invites this Court to reach an umbrella
conclusion that no exhaustion of administrative remedies is ever
required for any litigant raising a 2241 challenge on the grounds
of the Second Chance Act, this Court disinclines the invitation
and finds that such holding would fly in the face of the Third
Circuit's teachings—as to the firmness of the exhaustion
requirement”).
Therefore, this Court sees no reason to excuse Petitioner's
failure to exhaust administrative remedies.
See Velez, 2010 WL
5186158 at *3 (“the exhaustion requirement is not excused
lightly”); Maddox v. Zickefoose, 2010 WL 2762242, *4 (D.N.J. July
12, 2010); Gardner v. Grondolsky, 2009 WL 5103209, *2–3 (D.N.J.
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Dec. 17, 2009). Accordingly, the Court will dismiss the Petition
without prejudice to the filing of a new § 2241 petition after
Petitioner exhausts administrative relief.
CONCLUSION
For the foregoing reasons, Respondent's motion to dismiss
shall be granted, and the petition for a writ of habeas corpus,
filed pursuant to 28 U.S.C. § 2241, is dismissed without
prejudice, for Petitioner's failure to exhaust administrative
remedies.
An appropriate Order accompanies this Opinion.
/s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: December 8, 2011
At Camden, New Jersey
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