Konikow v. Hendrix
OPINION AND ORDER: Petitioner failed to exhaust his administrative remedies and fails to state a viable habeas claim in Ground Two. Accordingly, the Petition for Writ of Habeas Corpus #1 is DISMISSED, without prejudice to refile as to Ground One. Signed on 11/17/2022 by Judge Michael J. McShane. (Deposited in outgoing mail to pro se party on 11/18/2022.) (jw)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
JUSTIN D. KONIKOW,
Case No. 3:22-cv-01449-MC
OPINION AND ORDER
MCSHANE, District Judge.
Petitioner files this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
alleging that the Bureau of Prisons (BOP) has failed to correct his criminal history and refuses to
determine whether he is entitled to relief under the Coronavirus Aid, Relief, and Economic
Security Act (CARES Act). Petitioner has not exhausted his available administrative remedies
and fails to show that he should be excused from the exhaustion requirement. Moreover, this
Court cannot provide the relief petitioner seeks. Accordingly, the Petition is DISMISSED.
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Petitioner is currently serving a federal sentence at FCI Sheridan. In Ground One of his
Petition, petitioner claims that his BOP “Individualized Needs Plan–Program Review”
incorrectly references a “pending” charge for Grand Theft and prevents him from earning time
credits under the First Step Act. Petitioner contends that, even though the charge was cleared,
BOP refuses to remove the reference. In Ground Two, petitioner asserts that BOP has failed to
review his eligibility for home confinement as required by the CARES Act. Petitioner recently
notified the Court that BOP and Warden Hendrix determined that he was not eligible for
placement in home confinement pursuant to the CARES Act, and petitioner challenges that
decision. Petitioner concedes that he has not sought an administrative remedy from BOP for
either of his claims.
Before seeking habeas relief under § 2241, “a petitioner must first, ‘as a prudential
matter,’ exhaust his or her available administrative remedies.” Singh v. Napolitano, 649 F.3d
899, 900 (9th Cir. 2010) (per curiam). Requiring the exhaustion of administrative remedies aids
“judicial review by allowing the appropriate development of a factual record in an expert
forum,” conserves “the court’s time because of the possibility that the relief applied for may be
granted at the administrative level” and allows “the administrative agency an opportunity to
correct errors occurring in the course of administrative proceedings.” Ruviwat v. Smith, 701 F.2d
844, 845 (9th Cir. 1983); United Farm Workers v. Arizona Agric. Employ. Relations Bd., 669
F.2d 1249, 1253 (9th Cir. 1982).
Exhausting administrative remedies “is not required where the remedies are inadequate,
inefficacious, or futile, where pursuit of them would irreparably injure the plaintiff, or where the
administrative proceedings themselves are void.” United Farm Workers, 669 F.2d at 1253
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(citation omitted); see also Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir.
1993) (waiving exhaustion where relief was denied because of official BOP policy and further
appeal would likely have been denied based on the same policy). However, courts should not
relax the exhaustion requirement where it “would encourage the deliberate bypass of the
administrative scheme.” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004).
BOP implements an administrative review process that begins with an informal
grievance. If an inmate does not obtain satisfactory results from the informal process, the inmate
may file a Request for Administrative Remedy with the warden. If the inmate is dissatisfied with
the warden’s response, the inmate may file an appeal with the Regional Office. If the regional
appeal does not afford relief, the inmate may file a final appeal with the Central Office. See 28
C.F.R. §§ 542.13-542.15. If the final appeal denies relief, the inmate has exhausted
administrative remedies and may pursue judicial relief.
According to petitioner, he did not pursue an administrative remedy because it would be
futile and he would be eligible for release before the administrative process concluded. However,
aside from his conclusory assertion, petitioner fails to explain why the administrative remedy
process would be futile in these circumstances. Further, petitioner fails to show that he would be
irreparably harmed by the administrative process, aside from the wholly unsupported allegation
that the administrative process would not conclude before he is potentially eligible for release.
Petitioner presents no evidence to support this assertion and has failed to pursue any step of the
Even if petitioner’s calculation is correct, neither the alleged brevity of his remaining
sentence nor his desire for a faster path to federal court justifies the failure to exhaust in these
circumstances. In addition to producing a “useful record for subsequent judicial consideration,”
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the administrative review process “promotes efficiency” because “[c]laims can generally be
resolved much more quickly and economically in proceedings before an agency than in litigation
in federal court.” Woodford v. Ngo, 548 U.S. 81, 89 (2006).
Additionally, this Court lacks the authority to grant relief on Ground Two. Under the
CARES Act, BOP is granted discretion to “lengthen the maximum amount of time for which the
[BOP] is authorized to place a prisoner in home confinement.” Pub. L. No. 116-136, §
12003(b)(2), 134 Stat. 516 (March 27, 2020). Importantly, the CARES Act does not mandate
home confinement and whether an inmate should be transferred to home confinement remains
within BOP’s sole discretion. See United States v. Oscar, Case No. 6:19-cr-00021-AA, 2021 WL
864948 at *3 (D. Or. Mar. 8, 2021) (“The decision whether to exercise this authority…and
release a [prisoner] to home confinement lies entirely with BOP; the court lacks the power to
order that a prisoner be released to home confinement, even under the CARES Act.”). Thus, this
Court has no authority to order petitioner’s placement in home confinement.
Petitioner failed to exhaust his administrative remedies and fails to state a viable habeas
claim in Ground Two. Accordingly, the Petition for Writ of Habeas Corpus (ECF No. 1) is
DISMISSED, without prejudice to refile as to Ground One.
IT IS SO ORDERED.
DATED this 17th day of November, 2022.
s/ Michael J. McShane
MICHAEL J. MCSHANE
United States District Judge
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