VITRANO v. FEDERAL BUREAU OF PRISONS et al

Filing 4

OPINION. Signed by Chief Judge Jerome B. Simandle on 4/16/2013. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD VITRANO,

:
Civil Action No. 13-1427 (JBS)

Petitioner,

:

v.

:

FEDERAL BUREAU OF PRISONS,
et al.,

OPINION

:
:

Respondents.
:
APPEARANCES:
Richard Vitrano
03031-018
FCI Fort Dix
PO Box 2000
Fort Dix, NJ 08640
Petitioner pro se
SIMANDLE, Chief Judge
Petitioner Richard Vitrano, a prisoner currently confined at
FCI Fairton, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241.1

The matter was previously

administratively terminated because Petitioner failed to pay the
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.
(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 ... .

filing fee.

Petitioner subsequently paid the fee and the matter

will be reopened.

For the following reasons, this Court will

dismiss the Petition.
I.

BACKGROUND

Petitioner states that he has been in federal custody since
October 5, 2012 serving a sentence of one year and one day for a
violation of supervised release.

He states that he was informed

that he has been “excluded from CTC (Halfway house)
consideration.”

He states that he received no explanation for

the exclusion and that he was “originally promised a 90 day CTC
at Ft. Dix.”

He asserts that he is “severely prejudiced” because

the denial of halfway house placement is “unreasonable” and
“arbitrary and not based on fact.”

He states that a referral to

a CTC facility would aid in his re-adjustment to the community.
He asks that the Court “investigate the unreasonable decision of
exclusion from the CTC Program and Order CTC placement as the
Court deems fair and proper.”

He asserts that “the issue of

immediate CTC placement creates a liberty interest hence the
Administrative Remedy Requirement is not applicable.”

He asks

that the Court immediately order CTC placement.
II.
A.

DISCUSSION

Legal Standard
United States Code Title 28, Section 2243 provides in

relevant part as follows:

2

A court, justice or judge entertaining an
application for a writ of habeas corpus shall forthwith
award the writ or issue an order directing the
respondent to show cause why the writ should not be
granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.

Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.

See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney
General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399
U.S. 912 (1970).

Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of
the petition that the petitioner is not entitled to relief.

See

Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773
F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
See also 28 U.S.C. §§ 2243, 2255.
“Habeas corpus petitions must meet heightened pleading
requirements.”

McFarland v. Scott, 512 U.S. 849, 856 (1994).

A

petition must “specify all the grounds for relief” and set forth
“facts supporting each of the grounds thus specified.”

See 28

U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004), applicable to §
2241 petitions through Habeas Rule 1(b).

3

A court presented with

a petition for writ of habeas corpus “shall forthwith award the
writ or issue an order directing the respondent to show cause why
the writ should not be granted, unless it appears from the
application that the applicant or person detained is not entitled
there.”

28 U.S.C. § 2243.

Thus, “[f]ederal courts are

authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.”

McFarland, 512 U.S. at 856;

see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir.
2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985).
B.

Analysis
Petitioner has failed to exhaust his administrative

remedies, as discussed below, and accordingly the Petition will
be dismissed.
The BOP Administrative Remedy Program is a multi-tier
process that is available to inmates confined in institutions
operated by 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.
C.F.R. § 542.14.

See 28

An inmate who is dissatisfied with the Warden’s

response to his BP–9 Request may submit a BP–10 Appeal to the

4

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.
Petitioner did not pursue his administrative remedies
regarding this issue.

In fact, Petitioner explicitly states that

he has not filed any administrative remedies.

In his Petition,

he states that “the Administrative Remedy Requirement is not
applicable” because “the issue of immediate CTC placement creates
a liberty interest.”
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:

5

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).
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.

As such, the petition

must be dismissed for failure to exhaust.
The Court notes that even if Petitioner had fully exhausted
his administrative remedies, it is well established that a
prisoner possesses no liberty interest arising from the Due
Process Clause in a particular custody level or place of
confinement.

See, e.g., Olim v. Wakinekona, 461 U.S. 238, 245-46

(1983); Hewitt, 459 U.S. at 466-67; Moody v. Daggett, 429 U.S.
78, 88 n.9 (1976); Meachum v. Fano, 427 U.S. 215, 224-25 (1976);
Montanye, 427 U.S. at 242.

6

III.

CONCLUSION

For the reasons set forth above, the petition will be
dismissed.

Additionally, Petitioner’s Motion to Cancel

Administrative Termination and Excuse Exhaustion of
Administrative Remedies will be dismissed as moot.

An

appropriate order follows.

April 16, 2013
Dated:

s/ Jerome B. Simandle
Jerome B. Simandle
Chief Judge
United States District Court

7