TOTARO v. ORTIZ et al
OPINION FILED. Signed by Judge Renee Marie Bumb on 11/17/17. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RONALD N. TOTARO,
DAVID E. ORTIZ, Warden, and
FEDERAL BUREAU OF PRISONS,
Civ. No. 17-6458 (RMB)
BUMB, United States District Judge
On August 28, 2017, Petitioner filed a self-styled “Motion to
Congress April 28, 2016.”
(ECF No. 1.)
Petitioner, who is
incarcerated in the Federal Correctional Institution in Fort Dix
compassionate release.1 Petitioner also challenges the BOP Program
18 U.S.C. § (c) (1)(A)(i) provides:
Modification of an imposed term of
imprisonment. --The court may not modify a
term of imprisonment once it has been
imposed except that—
(1) in any case—
Statement under Sections 701-06 of the Administrative Procedure
Act, 5 U.S.C. § 551. (Id. at 3.)
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts, applicable to § 2241 under
Rule 1, the scope of the rules, a district judge must promptly
examine a petition, and “[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the petition
and direct the Clerk to notify the petitioner.”
For the reasons
discussed below, this Court dismisses the § 2241 without prejudice
for failure to exhaust administrative remedies.
On June 29, 2017, Petitioner requested compassionate release
from the Bureau of Prisons, pursuant to Program Statement 5050.49,
and 18 U.S.C. § 3582. (Pet., ECF No. 1 at 6; Ex. A.) Specifically,
In Totaro’s request for compassionate release
made on June 29, 2017, he cited the Amendments
(A) the court, upon motion of the
Director of the Bureau of Prisons,
may reduce the term of
imprisonment (and may impose a term of
probation or supervised release with or without conditions
that does not exceed the unserved portion of the original
term of imprisonment), after considering the factors set forth
in section 3553(a) to the extent that they are applicable, if it
(i) extraordinary and compelling reasons warrant
such a reduction; or
to the Sentencing Guidelines made by the
Sentencing Commission on April 28, 2016 and
made effective by Congress on November 1,
2016, which states, in part:
Age of the Defendant— The defendant is at
least 65 years old, has served at least
10 years or 75 percent of his or her term
of imprisonment, whichever is less.
(Pet., ECF No. 1 at 8; Ex. A, ECF No. 1 at 14.)
David Ortiz, Warden at FCI Fort Dix, denied the request for
compassionate release on July 27, 2017, under BOP Program Statement
(Id.; Ex. B, ECF No. 1 at 21.)
Warden Ortiz explained
According to Program Statement 5050.49,
section 4(c), the criteria for “Other Elderly
Inmates,” is defined as “inmates age 65 or
older who have served the greater of 10 years
or 75% of the term of imprisonment to which
the inmate was sentenced.” The Bureau has not
recommendations, nor is it bound by their
You have served over 10
years of your sentence; however, in order to
qualify for a RIS/Compassionate Release based
on these guidelines, you must serve at least
75% of your sentence. You have only served
Therefore, your request for RIS/Compassionate
Release is denied.
(Pet., Ex. B, ECF No. 1 at 21) (emphasis in original).
Petitioner then appealed, using the BOP Administrative Remedy
process, by sending a BP-9 form to Warden Ortiz.
(Id.; Ex. D, ECF
It appears that Petitioner is quoting the amendment
Application Note 1.B in the Commentary for U.S.S.G. §1B1.13.
No. 1 at 23.)
In his response on August 17, 2017, Warden Ortiz
gave an identical response to his denial of Petitioner’s July 27,
submitted a letter to the Court on October 18, 2017, stating he
received a response to his Regional Administrative Remedy Appeal
(BP-10 form), and it was denied “using the exact same language
used in the two prior requests,” proving that exhaustion is futile.
(ECF No. 2.)
The Court notes the response to Petitioner’s BP-10
appeal did not in fact use the same language to deny relief.
Relief was denied because:
The Program Statement specifically provides
that elderly inmates who are serving sentences
for offenses committed on or after November 1,
1987, must be 70 years or older and have served
imprisonment. In addition, Program Statement
5050.49 requires the consideration of the 13
factors set forth in Section 7 to determine if
the reduction in sentence request presents
particularly extraordinary and compelling
After reviewing your circumstances, it was
determined that your current offense was
committed on February 2, 1995. Although you
are over 70 years of age, you have not served
30 years or more of your term of imprisonment.
Accordingly, your appeal is denied.
(ECF No. 2 at 3.)
Guidelines was approved by Congress on April 28, 2016, effective
November 1, 2016, and should be interpreted as mandatory.
Petitioner concedes that he lacks jurisdiction under §
2241 to ask the court to modify a term of imprisonment and sua
sponte grant compassionate release, but contends the Court has
arbitrary and capricious.
28 U.S.C. § 2241(c)(3) provides, “[t]he 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 . . . .”
Petitioner states he is “challenging the BOP’s
interpretation of the rules for compassionate release in violation
of federal law.”
(Pet., ECF No. 1 at 3.)
Thus, the Court
construes this claim as a challenge to Petitioner’s custody in
jurisdiction over this claim under § 2241. See e.g. Reno v. Koray,
515 U.S. 50 (1995) (district court exercised jurisdiction under §
2241, based on Bureau of Prisons’ interpretation of 18 U.S.C. §
3585(b), refusing to grant credit for time served at a community
treatment center); Lopez v. Davis, 531 U.S. 230 (2001) (district
challenged BOP regulation categorically denying early release to
The Third Circuit Court of Appeals applies an exhaustion
requirement to claims brought under § 2241.
F.3d 627, 634 (3d Cir. 2000).
Callwood v. Enos, 230
The BOP administrative Remedy
Program “allow[s] an inmate to seek formal review of an issue
relating to any aspect of his/her own confinement.”
28 C.F.R. §
542.10. First, an inmate must seek informal resolution of an issue
Id., § 542.13.
If the inmate is dissatisfied, the
inmate may submit a formal written remedy request, on form BP-9,
to the warden of his/her facility.
Id., § 542.14. If the inmate
is dissatisfied with the warden’s response, he/she may appeal to
the Regional Director using form BP-10.
28 C.F.R. § 542.15(a).
response, he/she may appeal to the General Counsel in the Central
Office, on form BP-11.
Id., § 542.15(b)(1).
“If the inmate does
including extension, the inmate may consider the absence of a
response to be a denial at that level.”
Id., § 542.18.
Central Office appeal is the final level of administrative review.
brought under § 2241 “may be excused if an attempt to obtain relief
would be futile or where the purposes of exhaustion would not be
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)).
Here, Petitioner contends exhaustion is
futile because the BOP’s denial of his compassionate release
request at the BP-9 and BP-10 level of administrative review was
based on its Program Statement 5050.49, and his request would only
be denied at the next level for the same reason.
1 at 7; Letter, ECF No. 2 at 1.)
(Pet., ECF No.
The Court disagrees.
The Warden denied Petitioner’s request based on BOP Program
Statement 5050.49(4)(c), because Petitioner had only served 63% of
(Pet., Ex. B, ECF No. 1 at 21.)
The last Change
Notice to BOP Program Statement 5050.49 is dated March 25, 2015.3
Thus, it appears BOP Program Statement has not been updated to
reflect the amendments to the Sentencing Guidelines which were
effective, November 1, 2016.
The U.S.S Sentencing Commission
amended the compassionate release provision:
[as] a result of the Commission’s review of
“compassionate release” at §1B1.13 (Reduction
of Term of Imprisonment as a Result of Motion
by Director of Bureau of Prisons).
criteria and encourages the Director of the
Bureau of Prisons to file a motion for
compassionate release when “extraordinary and
compelling reasons” exist.
. . .
The amendment revises §1B1.13 in several ways.
First, the amendment broadens the Commission’s
“extraordinary and compelling reasons” for
. . .
The amendment also adds an age-based category
(“Age of the Defendant”) for eligibility in §
1B1.13. This new category would apply if the
defendant (i) is at least 65 years old, (ii)
is experiencing a serious deterioration in
health because of the aging process, and (iii)
has served at least 10 years or 75 percent of
his or her term of imprisonment (whichever is
The age-based category resembles
criteria in the Bureau of Prisons’ program
statement, but adds a limitation that the
defendant must be experiencing seriously
deteriorating health because of the aging
The amendment also clarifies that
the time-served aspect should be applied with
regard to “whichever is less,” an important
distinction from the Bureau of Prisons’
criteria, which has limited application to
significant terms of imprisonment. . .
See Official Text of Amendments to the Sentencing Guidelines
(Effective November 1, 2016) at 1-2.4
The Regional Director denied Petitioner’s appeal because he
did not meet the criteria under BOP Program Statement 5050.49 for
Available at https://www.ussc.gov/guidelines/amendments/readerfriendly-version-amendments-effective-november-1-2016
(ECF No. 2 at 3.)
requested relief under the Sentencing Commission’s new definition
The Regional Director stated only that there were 13
extraordinary and compelling circumstances.
Director did not say that those factors were considered and
Petitioner did not meet the definition, nor did the Regional
Director state whether or not the BOP considered the Sentencing
circumstances” to grant compassionate release.
Petitioner has not provided any reason to indicate that, upon
review, the Central Office will not grant his request based on the
change in U.S.S.G. § 1B1.13, which is not reflected in the March
2015 BOP Program Statement.
Therefore, exhaustion has not been
shown to be futile, and the Court will dismiss the petition without
prejudice to Petitioner raising his claim after exhausting his
For these reasons, the Court dismisses the petition under 28
Dated: November 17, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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