Nelson v. Smith

Filing 8

-CLERK TO FOLLOW UP- DECISION AND ORDER dismissing the petition for a writ of habeas corpus consistent with this Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/20/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

EMMETT NELSON, #12156-055
DECISION AND ORDER
No. 6:12-CV-6581(MAT)

Petitioner,
-vsCHIEF KEVIN SMITH,
Respondent.

I.

Introduction
Emmett Nelson (“Petitioner”) has filed the instant petition

pursuant to 28 U.S.C. § 2241. He alleges that he was “falsely
imprisoned” in Niagara County Jail (“NCJ”) in violation of his due
process rights. See Petition (“Pet”) (Dkt #1).
II.

Factual Background and Procedural History
On the form petition, with regard to the type of determination

being challenged, Petitioner states he was “falsely imprisoned in
violation of his due process [rights] and in retaliation for
exercising

his

constitutional

rights”.

He

claims

that

the

determination was made by “the director of the federal halfway
house (V.O.A.) in the City of Rochester” on October 3, 2012. He
indicated that he did not appeal the determination because he was
not given the opportunity to do so. Pet., ¶ 1.
For his first ground for relief, he claims that he was falsely
imprisoned by the U.S. Marshal’s in retaliation for his grievances.
According

to Petitioner,

on

or

about

September

20,

2012, he

requested a “sensitive BP-10 (grievance) due to sexual harassment
and denial of passes to Monroe Community College to register for
winter classes.” Pet.,

¶ 2(a). He believes that due to his request

for grievances, he was “targeted, written up, & placed in the
custody of the U.S. Marshal’s without reason” and “[a]lso in
retaliation to [sic] exercising his constitutional rights.” Id.
For his second ground for relief, Petitioner states that he is
being falsely imprisoned in violation of his due process rights. He
claims that towards the end of September 2012, after asking for the
grievances discussed in ground one, he was “issued several incident
reports” but was never afforded any hearing on these reports, in
violation of his due process rights. He states he was “not aware of
any sanction, if he was found guilty, or given an opportunity to
appeal any report or sanction. . . .” Pet., ¶ 2(b).
In Respondent’s answer, he notes that NCJ has a contract to
house federal prisoners. On October 3, 2012, NCJ received a request
from the United States Department of Justice (“DOJ”) to house
Petitioner.

Petitioner

was

transported,

presumably

by

the

United States Marshal’s Service, to NCJ, and arrived on October 10,
2012. NCJ subsequently received a Sentence Monitoring Computation
Data Form from DOJ with instructions to release Petitioner. NCJ
complied and released Petitioner from its custody on November 28,
2012.

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The Court performed a search on the Federal Bureau of Prisons
Inmate

Locator

website

(“the

BOP

inmate

locator”)1

using

Petitioner’s Register Number 12156-055. The BOP inmate locator
indicates that Petitioner was released on November 28, 2012. A
search of the Western District of New York’s CM/ECF indicates that
Emmett Nelson, Register Number 12156-055, has been the subject of
several criminal proceedings here.
Petitioner did not file any reply papers.
II.

Discussion
Habeas corpus review under 28 U.S.C. § 2241 is available to

federal prisoners “in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
Section 2241 provides a mechanism by which a federal prisoner may
challenge the execution of his sentence, “including such matters as
the administration of parole, computation of a prisoner’s sentence
by prison officials, prison disciplinary actions, prison transfers,
type of detention and prison conditions.” Jiminian v. Nash, 245
F.3d 144, 146 (2d Cir. 2001).
“Whenever a § 2241 habeas petitioner seeks to challenge his
present physical custody within the United States, he should name
his warden as respondent and file the petition in the district of
confinement.” Rumsfeld v. Padilla, 542 U.S. 426, 446-47 (2004).

1

http://www.bop.gov/inmateloc/ (last accessed June 19,

2014).
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Here, Petitioner named Chief Kevin Smith (“Smith”). Respondent’s
attorney indicates Smith works at the NCJ, but it is unclear from
Respondent’s answer whether Smith is the warden of the NCJ.
Even assuming that Petitioner named the proper respondent,
there are other fundamental problems with his § 2241 petition.
Petitioner

admits

that

he

never

exhausted

his

administrative

remedies relating to his alleged removal from the halfway house and
placement in NCJ. Petitioner is required to exhaust those remedies
before bringing a petition here pursuant to Section 2241, and
failure to do so can be excused only by a showing of “cause and
prejudice.” Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634
(2d Cir.2001). Because the exhaustion requirement is prudential,
however, it may be waived if “‘(1) available remedies provide no
genuine opportunity for adequate relief; (2) irreparable injury may
occur without immediate judicial relief; (3) administrative appeal
would be futile; and (4) in certain instances a plaintiff has
raised

a

Ashcroft,
United

substantial
329

States,

constitutional

F.3d

51,

88

F.3d

62

(2d

1280,

Cir.
1288

question.’”
2003)
(2d

Beharry

(quoting

Cir.

1996);

Able

v.
v.

further

quotations and citations omitted). Petitioner vaguely suggests in
his petition that any attempt to exhaust his remedies would have
been futile. Where a party makes a “‘clear and positive showing’
that pursuing available administrative remedies would be futile,
the purposes behind the requirement of exhaustion are no longer

-4-

served,

and

thus

a

court

will

release

the

[party]

from

the

requirement.” Kennedy v. Empire Blue Cross and Blue Shield, 989
F.2d 588, 594-95 (2d Cir. 1993) (quotation omitted). Here, however,
Petitioner has made no such “clear and positive showing”, and there
is no basis to excuse the exhaustion requirement. Accordingly, the
petition should be dismissed without prejudice for failure to
exhaust. See, e.g., Grant v. Terrell, No. 10–CV–2769 (MKB), 2014 WL
2440486, at *4 (E.D.N.Y. May 29, 2014) (dismissing § 2241 petition
prejudice

based

on

petitioner’s

failure

to

exhaust

his

administrative remedies and failure to demonstrate futility of
exhaustion; dismissal was without prejudice).
The Court notes that the petition now may be moot because
Petitioner has since been released from NCJ. However, it is unclear
whether Petitioner is subject to supervised release.2 Therefore,
the Court refrains from holding that the petition has been mooted
by Petitioner’s release from NCJ. See Lopez v. Terrell, 654 F.3d
176, 180 n. 2 (2d Cir. 2011) (noting that habeas petitioner who had
been released from prison “does not divest [court] of jurisdiction;
he is still ‘in custody’ for purposes of 28 U.S.C. § 2241 because

2

See http://www.bop.gov/inmateloc/about_records.jsp (“ If the
listed date has passed, the release occurred on the date listed and
the inmate is no longer in BOP custody. Note however that the
inmate may still be on parole or supervised release or in the
custody of some other correctional/criminal justice system.”) (last
accessed June 19, 2014).
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he remains subject to the conditions of his supervised release.”).
III. Conclusion
Emmett Nelson’s petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 is dismissed without prejudice based on his
failure to exhaust his administrative remedies. A certificate of
appealability will not issue. 28 U.S.C. § 2253(c)(2). The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith, and therefore, in forma pauperis status
is denied for purposes of an appeal. See Coppedge v. United States,
369 U.S. 438, 444–45 (1962).
SO ORDERED.

S/Michael A. Telesca
__________________________
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

June 20, 2014
Rochester, New York

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____