ROSALES v. HOLLINGSWORTH
Filing
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OPINION. Signed by Chief Judge Jerome B. Simandle on 7/13/2015. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ENGELBERT ROSALES,
HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 15-3840 (JBS)
v.
JORDAN L. HOLLINGSWORTH,
OPINION
Respondent.
APPEARANCES:
Engelbert Rosales, Petitioner Pro Se
#51881-007
FCI Fort Dix
P.O. BOX 2000
Fort Dix, NJ 08640
SIMANDLE, Chief Judge:
INTRODUCTION
Engelbert Rosales, a federal prisoner confined at FCI Fort
Dix, New Jersey, filed this Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Docket Entry 1). For the reasons
expressed below, this Court will dismiss the Petition without
prejudice pending exhaustion of Petitioner’s administrative
remedies.
BACKGROUND
Petitioner is serving a thirty-six month sentences for
attempted second-degree sex abuse and attempted kidnapping.
(Docket Entry 2 at 4).1 On April 7, 2014, the Bureau of Prisons
(“BOP”) evaluated Petitioner for residential re-entry center
(“RRC”) placement pursuant to the Second Chance Act of 2007,
Pub. L. No. 110-199, April 9, 2008 (“Second Chance Act”).
(Docket Entry 1 at 8; Docket Entry 2 at 4). The Unit Team in
charge of Petitioner’s evaluation determined a placement of 6090 days RRC placement was appropriate. (Docket Entry 2 at 5). It
further determined home confinement was not appropriate. (Docket
Entry 2 at 5).
Petitioner mailed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 on May 29, 2015. (Docket Entry 1).
He asserted that the BOP improperly denied him the 10% halfway
house time allotment, which would have set his date of release
to June 2, 2015. (Docket Entry 1 ¶¶ 4-7). Petitioner asserted
the BOP was delaying the administrative remedy process, making
exhaustion futile. (Docket Entry 1 ¶¶ 6-9). On June 29, 2015, he
supplemented his petition with more documents. (Docket Entry 2).
STANDARD OF REVIEW
Petitioner brings this Petition for a Writ of Habeas Corpus
as a pro se litigant. 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.
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Petitioner’s district and date of judgment are unknown.
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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).
DISCUSSION
Petitioner challenges the decision of the BOP denying him
placement at a halfway house. Section 2241 of Title 28 of the
United States Code provides in relevant part:
(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, 485–86 (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
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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.
“Federal prisoners are required to exhaust their
administrative remedies before filing a § 2241 habeas petition.”
Tiffin v. Lewisburg, 589 F. App'x 609, 611 (3d Cir. 2014)
(citing Moscato v. Fed. Bureau of Prisons, et al., 98 F.3d 757,
760 (3d Cir. 1996)). The record reflects that Petitioner is in
the process of pursuing his administrative appeal, beginning
with an informal request that was submitted on May 12, 2015, and
to which a response was received on May 15, 2015. (Docket Entry
1 at 8). Thereafter, Petitioner submitted a formal remedy
request to the administrative remedy coordinator on May 26,
2015. (Docket Entry 1 at 5). His request was rejected because he
failed to submit the request number of copies, however he was
informed that he could resubmit his request within five days.
(Docket Entry 1 at 5). A handwritten note on the form indicates
Petitioner resubmitted his request on May 29, 2015, (Docket
Entry 1 at 5), the same day Petitioner mailed his petition.
Warden Hollingsworth responded to Petitioner’s Administrative
Remedy form on June 22, 2015, (Docket Entry 2 at 4-5), and
Petitioner submitted an appeal of that decision to the Northeast
Regional Director on June 25, 2015, (Docket Entry 2 at 2); see
also 28 C.F.R. § 542.15(a). In order to fully exhaust his
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administrative remedies, Petitioner must appeal any unfavorable
decision to the BOP General Counsel. 28 C.F.R. § 542.15(a).
Although exhaustion of administrative remedies may be
excused “if an attempt to obtain relief would be futile or where
the purposes of exhaustion would not be served[,]” Cerverizzo v.
Yost, 380 F. App'x 115, 116 (3d Cir. 2010) (citing Woodall v.
Fed. Bureau of Prisons, 432 F.3d 235, 239 n.2 (3d Cir. 2005);
Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986);
Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998) (Roth, J.,
concurring)), the record submitted by Petitioner indicates his
appeal is proceeding in the normal course. Warden Hollingsworth
responded to Petitioner within the time contemplated by 28
C.F.R. § 542.18. The Regional Director has thirty (30) days to
respond to Petitioner’s appeal, and the Central Office shall
have forty (40) days to consider his final appeal. 28 C.F.R. §
542.18. “If the inmate does not receive a response within the
time allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that
level.” 28 C.F.R. § 542.18. As the administrative appeal process
is ongoing and the record is developing, it is premature for the
federal courts to become involved.
Although the “release date” cited by Petitioner, June 2,
2015, has come and gone, the Court notes that the record
reflects the decision on Petitioner’s RRC placement was made
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more than a year in advance, namely, on April 4, 2014. (Docket
Entry 2 at 5). The fact that Petitioner waited until May 12,
2015 to start pursuing his administrative remedies does not
entitle him to federal court intervention prior to the
exhaustion of administrative appeals. A prisoner seeking § 2241
relief from the unit Team’s placement determination pursuant to
the Second Chance Act cannot wait a year before pursuing an
administrative remedy and then claim that the Court should waive
administrative remedy exhaustion because too little time remains
before the release date petitioner seeks.
When a prisoner
disagrees with the Unit Team’s decision, he should file for
administrative relief at an early date so that the required
administrative remedy process has sufficient time to be
concluded before seeking court intervention.
Under the present
circumstances, the Court will not excuse Mr. Rosales’ failure to
exhaust his administrative remedies, and finds this present
petition is premature.
As Petitioner is in the process of exhausting his
administrative remedies, the petition shall be dismissed without
prejudice. Petitioner may move to reopen the matter upon
exhaustion of his administrative remedies by submitting an
amended petition.2
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Petitioner should further note that “[u]nless prepared by
counsel, petitions to this Court for a writ of habeas corpus . .
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CONCLUSION
For the foregoing reasons, the petition shall be dismissed
without prejudice. An accompanying order follows.
July 13, 2015
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
. shall be in writing (legibly handwritten in ink or
typewritten), signed by the petitioner or movant, on forms
supplied by the Clerk.” L. Civ. R. 81.2(a). Petitioner did not
use the habeas form supplied by the Clerk for habeas corpus
petitions, i.e., AO242 (12/11). The Clerk shall be directed to
provide this form to Petitioner, and Petitioner shall use this
form in the event he wishes to move to reopen this matter upon
the conclusion of his administrative remedies.
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