Alexander v. Ebbert

Filing 13

MEMORANDUM (Order to follow as separate docket entry) re: petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Signed by the Honorable John E. Jones, III on August 7, 2015. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CRAIG ALEXANDER,
Petitioner,
v.
WARDEN DAVID EBBERT,
Respondent.

:
:
:
:
:
:
:

1:14-cv-2397
Hon. John E. Jones III

MEMORANDUM
August 7, 2015
Petitioner, Craig Alexander (hereinafter “Petitioner”), an inmate currently
confined at the United States Penitentiary in Lewisburg, Pennsylvania, filed the
instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1).
Petitioner claims that his due process rights were violated during the course of a
prison disciplinary hearing held in January 2014, at the United States Penitentiary
at Beaumont, Texas. (Doc. 1; Doc. 10-1, ¶ 3). He seeks expungement of the
incident report and restoration of lost privileges. (Doc. 1, p. 9). The petition is
ripe for disposition. For the reasons set forth herein, the petition will be dismissed.
I.

BACKGROUND
In general, the Federal Bureau of Prisons (“BOP”) Administrative Remedy

Program is a multi-tier process that is available to inmates confined in institutions
operated by the BOP for “review of an issue which relates to any aspect of their

confinement.” 28 C.F.R. § 542.10. An inmate must initially attempt to informally
resolve the issue with institutional staff. 28 C.F.R. § 542.13(a). If informal
resolution fails or is waived, an inmate may submit a BP–9 Request to “the
institution staff member designated to receive such Requests (ordinarily a
correctional counsel)” within 20 days of the date on which the basis for the
Request occurred, or within any extension permitted. 28 C.F.R. § 542.14. An
inmate who is dissatisfied with the Warden’s response to his BP–9 Request may
submit a BP–10 Appeal to the Regional Director of the BOP within 20 days of the
date the Warden signed the response. 28 C.F.R. § 542.15(a). The inmate may
appeal to the BOP’s General Counsel on a BP–11 form within 30 days of the day
the Regional Director signed the response. Id. Appeal to the General Counsel is
the final administrative appeal. Id. If responses are not received by the inmate
within the time allotted for reply, “the inmate may consider the absence of a
response to be a denial at that level.” 28 C.F.R. § 542.18.
Disciplinary Hearing Officer (DHO) appeals are submitted directly to the
Regional Director. See 28 C.F.R. § 542.14(d)(2). Therefore, DHO appeals involve
fewer levels of review in order to be considered “exhausted.”
On December 12, 2013, Petitioner was charged in Incident Report Number
2526069 with “introduction of Drugs/Alcohol (attempted) and Phone Abuse,
2

(Criminal Codes 111A and 197).” (Doc. 10-1, p. 3, ¶ 3). A disciplinary hearing
was held on January 9, 2014. (Id. at p. 33) Petitioner was found guilty of the
charged conduct and sanctioned with eighty-two days loss of good conduct time,
sixty days of disciplinary segregation, and twelve months loss of telephone,
visitation, and email privileges. (Id. at p. 34).
On September 22, 2014, Petitioner challenged the hearing officer’s (“DHO”)
decision by fling an appeal with the Regional Director. (Doc. 10-1, at ¶ 7). On
September 30, 2014, the appeal, which was assigned “REM ID 796138-R-1,” was
rejected as untimely. (Id.). Petitioner was afforded the opportunity to refile the
appeal with the Regional Office to include an explanation concerning the
untimeliness of the request. (Id.). On October 27, 2014, he refiled the appeal at
the Central Office Level. (Id. at ¶ 8). On December 3, 2014, the appeal was
rejected for failure to comply with the September 30, 2014 directive that he refile
with the Regional Office. (Id.) He was again advised to refile the appeal with the
Regional Office. (Id.) He failed to file anything further. (Id.)
II.

DISCUSSION
A habeas corpus petition is the proper mechanism for a prisoner to challenge

the “fact or duration” of his confinement, Preiser v. Rodriguez, 411 U.S. 475,
498–99 (1973), including challenges to prison disciplinary proceedings that bear
on the length of confinement, such as deprivation of good time credits.

Muhammad v. Close, 540 U.S. 749 (2004); Edwards v. Balisok, 520 U.S. 641
(1997). See also Wilkinson v. Dotson, 544 U.S. 74 (2005).
Respondent seeks dismissal of the petition as unexhausted. (Doc. 10, p. 1).
Although 28 U.S.C. § 2241 contains no statutory exhaustion requirement, a federal
prisoner ordinarily may not bring a petition for writ of habeas corpus under 28
U.S.C. § 2241, challenging the execution of his sentence, until he has exhausted all
available administrative remedies. See, e.g., Callwood v. Enos, 230 F.3d 627, 634
(3d Cir. 2000); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761 (3d Cir.
1996); Arias v. United States Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981);
Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). The burden is on the
petitioner to prove that he exhausted administrative remedies. Meyers v. Martinez,
427 F. App’x. 125, 127 (3d Cir. 2011) (citing Coady v. Vaughn, 251 F.3d 480, 488
(3d Cir. 2001)). If a petitioner fails to exhaust administrative remedies, the district
court must dismiss the petition. Callwood, 230 F.3d at 634.
“[F]ailure to satisfy the procedural rules of the [Bureau of Prisons’]
administrative process constitutes a procedural default.” Moscato, 98 F.3d at
760–761 (citing Francis v. Rison, 894 F.2d 353,355 & n. 2 (9th Cir. 1990);
Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir.1986)). Petitioner failed to timely
submit his request for review to the Regional Office. See 28 C.F.R. § 542.14(d)(2).
4

This failure to satisfy the procedural rules of the BOP’s administrative remedy
process constitutes a procedural default. Moscato, 98 F.3d at 760. “[I]f a prisoner
has failed to exhaust his administrative remedies due to a procedural default and
the default renders unavailable the administrative process, review of his habeas
claim is barred unless he can demonstrate cause and prejudice.” Id. at 761. To
demonstrate “cause” for a procedural default, the petitioner must show that “some
objective factor external to the [petitioner’s] defense impeded [his] efforts to
comply with [a] procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Meanwhile, to demonstrate “actual prejudice,” the petitioner must show “not
merely that the errors . . . created a possibility of prejudice, but that they worked
to his actual and substantive disadvantage.” Carrier, 477 U.S. at 494 (quoting
United States v. Frady, 456 U.S. 152, 270 (1982)).
Petitioner failed to exhaust the administrative review process. His request
for administrative review of the disciplinary hearing was rejected as untimely and
he failed to avail himself of the opportunity to remedy his procedural default by
filing with the Regional Office an explanation of untimeliness. He offers no
explanation for his failure to comply with the administrative appeal process and,
therefore, has not shown cause for his procedural default. Absent such a showing,
review of the merits of Petitioner’s claims is barred.
5

A separate Order will issue.

6