SENIOR v. ZICKEFOOSE et al

Filing 7

OPINION. Signed by Judge Robert B. Kugler on 3/7/2013. (dmr)(n.m.)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MATTHEW A. SENIOR,
Petitioner,
v.
DONNA ZICKEFOOSE, et al.,
Respondents.

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Civil No. 12-0127 (RBK)

OPINION

APPEARANCES:
Matthew A. Senior, Pro Se
03385-049
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Karen Helene Shelton
Office of the US Attorney
402 East State Street
Trenton, NJ 08608
Attorney for Respondents
KUGLER, District Judge
Matthew A. Senior (“Petitioner”), an inmate previously
incarcerated at FCI Fort Dix in New Jersey, filed a Petition for a
Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241.

Respondents

filed a Response to the Petition and the administrative record of

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the case (docket entry 6).

For the following reasons, this Court

will dismiss the petition.
BACKGROUND
Under 18 U.S.C. § 3624(c)(1), as amended by the Second Chance
Act of 2007, Pub. L. No. 110-199, April 9, 2008 (“the Second Chance
Act”), “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
corrections facility....”
Petitioner received a 120-month sentence after conviction in
the United States District Court, District of New Hampshire for drug
and witness tampering offenses.

In his petition, Petitioner argues

that his Unit Team did not properly consider his homelessness,
indigency, and unemployed status when considering his Residential
Re-Entry Center (“RRC”) placement recommendation.
The Response to the Petition filed by Respondents includes the
administrative record of the case.

It reveals that on June 3, 2011,

the Unit Team considered Petitioner’s RRC placement.

They completed

a RRC Consideration/Re-Consideration Form which outlined the factors
to consider in formulating an RRC start date.
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(Response, p. 8).

After consideration, it was determined that Petitioner would receive
an RRC placement of 150 days.

The Unit Team noted:

Regarding release planning, inmate Senior stated that he
would live alone and would need to find an apartment upon
release from custody. He stated that he would stay in a
homeless shelter until he was reestablished. As of now,
inmate Senior has no promise of employment, however Unit
team feels that 150 days RRC placement time would help to
facilitate a successful transition back into the community.
According to his PSI, inmate Senior has been incarcerated
for the past 6 years. He has his high school diploma and an
Associate Degree in Business Management. He has programmed
well during this period of incarceration taking various
beneficial classes. During Mr. Senior's incarceration, he
has worked in the Safety Department as a clerk, and in
Education as a Tutor. Mr. Senior's parents are deceased, and
he no longer associates with his sisters. He has a daughter
who is in college who supports him emotionally. Mr. Senior
arrived at this facility on August 9, 2005, and has gained
some marketable skills by working in the Safety Department.
Based on his educational background, past employment,
community and family resources, assets and employable
skills, the Unit Team feels that the recommendation for RRC
is substantiated. In addition, The Unit Team discussed
methods to secure employment ... i.e. employment center etc.
Unit Team also encouraged inmate Sultan [sic] to begin
reaching out to prospective employers prior to his release
from custody.
(Declaration of Laurie Alexander, Ex. 2).
Petitioner did not file any administrative remedies concerning
his claims.
DISCUSSION
A. Petitioner Has Failed to Exhaust Remedies.
The BOP Administrative Remedy Program is a multi-tier process
that is available to inmates confined in institutions operated by

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the BOP for “review of an issue relating to any aspect of his/her
own confinement.” 28 C.F.R. § 542.10. An inmate must initially
attempt to informally resolve the issue with institutional staff.
See 28 C.F.R. § 542.13(a). If informal resolution fails or is waived,
an inmate may submit a BP–9 Request to within 20 days of the date
on which the basis for the Request occurred, or within any extension
permitted. See 28 C.F.R. § 542.14. An inmate who is dissatisfied with
the Warden's response to his BP–9 Request may submit a BP–10 Appeal
to the Regional Director of the BOP within 20 days of the date the
Warden signed the response. See 28 C.F.R. § 542.15(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 signed the response. See id.
Appeal to the General Counsel is the final administrative appeal.
See 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.
According to the BOP's records, Petitioner has not filed any
administrative remedies. (Answer, p. 7, citing Declaration of Tara
Moran).
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
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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). The exhaustion doctrine promotes a number of goals:
(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).
Here, Petitioner has not attempted to exhaust administrative
remedies. Further, Petitioner has not alleged any facts that would
permit this Court to find that exhaustion of his administrative
remedies would be futile or that requiring exhaustion would subject
Petitioner to “irreparable injury.” As such, the petition must be
dismissed for failure to exhaust.

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B.

Alternatively, Petitioner’s Case is Now Moot.
According to the federal inmate locator website, www.bop.gov,

Petitioner was released from federal custody on November 29, 2012.
Therefore, his claims regarding RRC placement and the Second Chance
Act are moot.
Federal courts are not empowered to decide moot issues. See
U.S. Const. art. III, § 2, cl. 1.; Doe v. Delie, 257 F.3d 309, 313
(3d Cir. 2001) (citing North Carolina v. Rice, 404 U.S. 244, 246
(1971)). To avoid mootness, a controversy must exist at all stages
of review. See id. (citing New Jersey Turnpike Auth. v. Jersey Central
Power & Light, 772 F.2d 25, 31 (3d Cir. 1985)).
When Petitioner was released, “the Petition became moot because
Petitioner was no longer threatened with ‘an actual injury traceable
to the [BOP] and likely to be redressed by a favorable judicial
decision.’”

Hagwood v. Grondolsky, 2009 WL 455499 (D.N.J. Feb. 19,

2009) (Hillman, J.) (unpubl.) (finding that Petitioner's placement
into home confinement rendered his petition challenging the
calculation of time for placement under the “Second Chance Act” moot)
(quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). See also Chu v.
Schultz, 2009 WL 689675 (D.N.J. Mar.11, 2009) (Kugler, J.) (unpubl.)
(also finding that Petitioner's placement into halfway house
rendered Petition challenging calculation of time for placement
under “Second Chance Act” moot).
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In the instant case, because the issues are no longer “live”
and because a controversy no longer exists, the issues raised in the
petition are moot.
C.

Alternatively, Petitioner’s Claims Have No Merit.
The Second Chance Act does not guarantee a one-year RRC

placement, but “only directs the Bureau of Prisons to consider
placing an inmate in a RRC for up to the final twelve months of his
or her sentence.” Lovett v. Hogsten, 2009 WL 5851205 (6th Cir. Dec.29,
2009) (unpubl.); see also Travers v. Federal Bureau of Prisons, 2009
WL 4508585 (D.N.J. Nov. 30, 2009) (Hillman, J.) (finding that “...
nothing in the Second Chance Act entitles Petitioner to a halfway
house placement longer than the 120–150 days already approved. These
pre-release placement decisions are committed, by statute, to the
discretion of the Director of the Bureau of Prisons, whose exercise
of discretion is to be guided by the enumerated considerations.”).
In this case, Petitioner was considered for RRC placement, and,
in fact, received an RRC placement of 150 days by his Unit Team at
FCI Fort Dix. This Court finds no reason to upset the findings of
the BOP. Although Petitioner disagreed with the BOP's decision, it
is clear that Petitioner was properly considered, and thus no
constitutional violation occurred.

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CONCLUSION
For the foregoing reasons, Petitioner's petition for a writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2241, is hereby
dismissed.
An appropriate Order accompanies this Opinion.

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated:

March 7, 2013

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