ROCCAFORTE v. UNITED STATES OF AMERICA
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 7/14/14. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 13-5660 (JBS)
Frank Roccaforte, Pro Se
P.O. Box 420
Fairton, NJ 08320
Elizabeth Ann Pascal
Office of the U.S. Attorney
401 Market Street
Camden, NJ 08101
Attorney for Respondent
SIMANDLE, Chief Judge
Frank Roccaforte (“Petitioner”), an inmate incarcerated at FCI
Fairton in New Jersey, filed a Petition for a Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2241 (Docket Item 1). Respondent filed an
Answer on March 4, 2014 (Docket Item 4) to which Petitioner replied
(Docket Item 6). This Court has reviewed all documents, and for the
following reasons, will deny the petition.
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
According to the record of this case, Petitioner received a
46-month sentence after conviction in the United States District
Court, Southern District of New York for racketeering offenses. His
projected release date is January 12, 2015. See Response, Declaration
of Donna Broome “Broome Decl.”, Ex. 1.
On July 11, 2013, Petitioner’s Unit Team at FCI Fairton held
a program review and completed a Consideration for Residential
Reentry Center Form. The Form outlined the factors to consider in
formulating a RRC start date for Petitioner. See Response,
Declaration of Nancy Mori “Mori Decl.” at ¶¶ 3, 4. The Unit Team
Inmate Roccaforte is being referred for Residential
Re-entry Center placement for a period of 151-180 days,
pursuant to the Second Chance Act. The Unit Team has
determined the recommended placement is of sufficient
duration to provide the greatest likelihood of successful
reintegration into the community. He will be able to use
this time to establish employment and enhance family ties.
Based upon his history of substance abuse and special
conditions of supervision, transitional services are
recommended. Inmate Roccaforte has three years Supervised
Release to follow.
See Mori Decl. at Ex. 2. Petitioner’s report date for RRC placement
is July 17, 2014. See Mori Decl. at ¶ 7.
Petitioner argues that his Unit Team failed to consider the
proper factors, including his minimal job skills, lack of community
resources, institutional programming and risk of recidivism. See
Petition at pp. 2-4. He asks this Court to order FCI Fairton to
recalculate his time award in accordance with the Second Chance Act.
Section 2241 of Title 28 of the United States Code provides in
(c) The writ of habeas corpus shall not extend to a prisoner
unless... He is in custody in violation of the Constitution
or laws or treaties of the United States.
28 U.S.C. § 2241(c)(3).
“Section 2241 is the only statute that confers habeas
jurisdiction to hear the petition of a federal prisoner who is
challenging not the validity but the execution of his sentence.”
Coady v. Vaughn, 251 F.3d 480, 485–486 (3d Cir. 2001). This Court
has subject matter jurisdiction under § 2241 to consider the instant
petition because Petitioner was incarcerated in New Jersey when he
filed the petition, and he challenges the denial of early release
on federal grounds. See Woodall v. Fed. Bureau of Prisons, 432 F.3d
235, 241–44 (3d Cir. 2005); Barden v. Keohane, 921 F.2d 476, 478–
79 (3d Cir. 1990). Moreover, if the Bureau of Prisons (“BOP”)
incorrectly determined his eligibility for early release, this error
carries a potential for a miscarriage of justice that can be corrected
through habeas corpus. See Murray v. Carrier, 477 U.S. 478, 495
(1986); Barden, 921 F.2d at 479.
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
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 and Petitioner’s own admission,
Petitioner has not completed his administrative remedy process. See
Response at p. 8, citing Broome Decl. at ¶ 5; Petition, p. 1.
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). 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
Here, Petitioner has not exhausted administrative remedies,
claiming he did not have time to do so. As such, the Petition is
dismissible for failure to exhaust.
Alternatively, the Petition Must Be Denied as Meritless.
It is well-established that 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. See Wilson v. Strada, 474 F.
App’x 46, 48-49 (3d Cir. Apr. 9, 2012); 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 . . . .”).
It is clear that Petitioner does not have a liberty interest
in a vested right to reduction of his sentence by means of his
placement in a RRC: the decision is statutorily reserved to be subject
to the BOP's discretion. Cf. Magnin v. Beeler, 110 F. Supp.2d 338,
340 n.2 (D.N.J. 2000). The statutory or ensuing regulatory enactments
merely created an entitlement protected by the Due Process Clause,
i.e., these provisions merely protect Petitioner's expectation to
be evaluated for such placement. Cf. Greenholtz v. Inmates of
Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979)
(addressing the right to parole consideration); see also Board of
Pardons v. Allen, 482 U.S. 369 (1987); Prevard v. Fauver, 47 F.
Supp.2d 539, 545 (D.N.J.), aff'd, 202 F.3d 254 (3d Cir. 1999).
Correspondingly, Petitioner has no vested right in either being
evaluated for RRC placement on a certain date or in being placed in
a RRC on a certain date: rather, he has a right to be evaluated,
generally, and to be placed in a RRC if the BOP concludes, upon due
evaluation, that Petitioner shall be so placed.
In this case, Petitioner was considered for RRC placement, and
the record reflects that he received an RRC placement of 151-180 days
by his Unit Team. Petitioner has presented no reason to upset the
findings of the BOP. Although Petitioner disagreed with the BOP's
decision, it is clear from the record that Petitioner was properly
considered for RRC placement and received such a placement, and thus
no constitutional violation occurred. As such, he is not entitled
to habeas relief under § 2241.
For the foregoing reasons, Petitioner's petition for a writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2241, is hereby denied.
An appropriate Order accompanies this Opinion.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
July 14, 2014
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