TOTARO v. ORTIZ et al

Filing 5

OPINION FILED. Signed by Judge Renee Marie Bumb on 11/17/17. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
RONALD N. TOTARO,
Petitioner,
v.

DAVID E. ORTIZ, Warden, and
FEDERAL BUREAU OF PRISONS,
Respondents.
________________________

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Civ. No. 17-6458 (RMB)

OPINION

BUMB, United States District Judge
On August 28, 2017, Petitioner filed a self-styled “Motion to
Compel

the

BOP

to

Grant

Congress April 28, 2016.”

Compassionate

Release

(ECF No. 1.)

Authorized

by

Petitioner, who is

incarcerated in the Federal Correctional Institution in Fort Dix
New

Jersey,

challenging

asserts
the

jurisdiction

BOP’s

under

interpretation

28
of

U.S.C.
the

§

rules

2241,
for

compassionate release.1 Petitioner also challenges the BOP Program

1

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.
I.

BACKGROUND
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,
Petitioner states:
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 
finds that— 

(i) extraordinary and compelling reasons warrant 
such a reduction; or 

2 

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.
(§1B1.13)2
(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
5050.49.

(Id.; Ex. B, ECF No. 1 at 21.)

Warden Ortiz explained

that:
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
adopted
the
sentencing
commission[‘]s
recommendations, nor is it bound by their
recommendations.
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
approximately
63%
of
your
sentence.
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

2

It appears that Petitioner is quoting the amendment
Application Note 1.B in the Commentary for U.S.S.G. §1B1.13.
3 

to

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,
2017 request.
After

(Id.)

filing

the

present

habeas

petition,

Petitioner

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
30
years
or
more
of
their
term
of
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
circumstances.
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.)
Petitioner

contends

the

amendment

to

the

Sentencing

Guidelines was approved by Congress on April 28, 2016, effective

4 

November 1, 2016, and should be interpreted as mandatory.
9-10.)

(Id. at

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
jurisdiction

over

his

claim

that

of

the

rules

for

interpretation

the

Bureau

compassionate

of

Prisons’

release

are

arbitrary and capricious.
II.

DISCUSSION
A.

Jurisdiction

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
violation

of

18

U.S.C.

§

3582(c)(1)(A)(i).

The

Court

has

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
court

exercised

jurisdiction

under

§

2241,

where

petitioner

challenged BOP regulation categorically denying early release to
5 

certain prisoners).
B.

Exhaustion

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
of concern.

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.
If

the

inmate

is

dissatisfied

with

28 C.F.R. § 542.15(a).
the

Regional

Director’s

response, he/she may appeal to the General Counsel in the Central
Office, on form BP-11.
not

receive

a

Id., § 542.15(b)(1).

response

within

the

time

“If the inmate does
allotted

for

reply,

including extension, the inmate may consider the absence of a
response to be a denial at that level.”

Id., § 542.18.

The

Central Office appeal is the final level of administrative review.
Id.
The

requirement

of

administrative

exhaustion

of

claims

brought under § 2241 “may be excused if an attempt to obtain relief
would be futile or where the purposes of exhaustion would not be
6 

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)).

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
his sentence.

(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
the
policy
statement
pertaining
to
“compassionate release” at §1B1.13 (Reduction
of Term of Imprisonment as a Result of Motion
by Director of Bureau of Prisons).
The
amendment
broadens
certain
eligibility
criteria and encourages the Director of the
Bureau of Prisons to file a motion for

3

Available at
https://www.bop.gov/PublicInfo/execute/policysearch?todo=query#
7 

compassionate release when “extraordinary and
compelling reasons” exist.
. . .
The amendment revises §1B1.13 in several ways.
First, the amendment broadens the Commission’s
guidance
on
what
should
be
considered
“extraordinary and compelling reasons” for
compassionate release.
. . .
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
less).
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
process.
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
only
those
elderly
offenders
serving
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

4

Available at https://www.ussc.gov/guidelines/amendments/readerfriendly-version-amendments-effective-november-1-2016
8 

“Elderly Inmates.”

(ECF No. 2 at 3.)

Petitioner, however,

requested relief under the Sentencing Commission’s new definition
of

“extraordinary

release.
factors

and

compelling

reasons”

for

compassionate

The Regional Director stated only that there were 13
the

BOP

considered

in

determining

extraordinary and compelling circumstances.

if

(Id.)

there

were

The Regional

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
Commission’s

new

definition

of

“extraordinary

and

compelling

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
administrative remedies.
III. CONCLUSION
For these reasons, the Court dismisses the petition under 28
U.S.C.

§

2241

without

prejudice

administrative remedies.

Dated: November 17, 2017
9 

for

failure

to

exhaust

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

10