Bermudez v. Warden, FCI Allenwood-Low

Filing 5

MEMORANDUM re petn for writ of h/c 1 and mtn for PI 2 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 6/8/17. (ma)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHARLES BERMUDEZ,
Petitioner
vs.
WARDEN, FCI ALLENWOOD LOW
Respondents

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No. 1:17-CV-00519
(Judge Rambo)

MEMORANDUM

I.

Background

On March 27, 2017, Petitioner Charles Bermudez, an inmate at the Federal
Correctional Institution at Allenwood, White Deer, Pennsylvania (“FCIAllenwood”), filed a petition for a writ of habeas corpus pursuant to 28. U.S.C. §
2241 and a memorandum in support thereof. (Doc. No. 1.) Petitioner also filed an
emergency motion for preliminary injunction on the same day. (Doc. No. 2.)
Bermudez paid the $5.00 filing fee on April 18, 2017. In liberally construing
Bermudez’s petition, he essentially argues that he was wrongfully expelled from
the Bureau of Prisons’ (“BOP”) Residential Drug Abuse Program (“RDAP”) and
the expulsion violated his right to early release under § 3621(e).

II.

Discussion

The Court first reviews Bermudez’s petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the U.S. District Courts, applicable to § 2241
petitions through Rule 1(b), to determine whether the petition may be subject to
summary dismissal. See Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa.
1979). Rule 4 provides in pertinent part: “If 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.”
It has been repeatedly held that “[a] petition may be dismissed without
review of an answer ‘when the petition is frivolous, or obviously lacking in merit,
or where . . . the necessary facts can be determined from the petition itself.’ ”
Thomas v. Hauser, No. 3:15-CV-0469, 2015 WL 1566233, at *1 (M.D. Pa. April
8, 2015) (Nealon, J.) (citing Allen v. Perini, 424 F.2d 134, 141 (6th Cir.), cert.
denied, 400 U.S. 906 (1970). The Allen court stated that “the District Court has a
duty to screen out a habeas corpus petition which should be dismissed for lack of
merit on its face.” Allen, 424 F.2d at 141.
At the outset, the Court notes Bermudez’s failure to exhaust administrative
remedies. Bermudez, in fact, concedes this fact, but appears to argue that he need

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not exhaust administrative remedies in the present habeas proceeding. (Doc. No. 1
at 2). Bermudez’s contention is misplaced.
Despite the absence of a statutory exhaustion requirement attached to
§ 2241, courts have consistently required a petitioner to exhaust administrative
remedies prior to filing a § 2241 petition. See Moscato v. Fed. Bureau of Prisons,
98 F.3d 757, 760 (3d Cir. 1996) (holding “that a prisoner’s procedural default of
his administrative remedies bars judicial review of his habeas petition unless he
can show cause for the default and prejudice attributable thereto”); Arias v. United
States Parole Comm’n., 648 F.2d 196, 199 (3d Cir. 1981) (concluding that, in the
context of a habeas petition filed under § 2241, “the district court should have
dismissed appellant’s petition on exhaustion grounds”). Exhaustion of
administrative remedies is required “for three reasons: (1) allowing the appropriate
agency to develop a factual record and apply its expertise facilitates judicial
review; (2) permitting agencies to grant the relief requested conserves judicial
resources; and (3) providing agencies the opportunity to correct their own errors
fosters administrative autonomy.” Moscato, 98 F.3d at 761-62 (citing Bradshaw v.
Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981).
In order for a prisoner to exhaust his administrative remedies, he must
comply with 28 C.F.R. § 542.10 et seq., otherwise, the habeas petition should be
dismissed. Arias, 648 F.2d at 199 (requiring federal prisoner to exhaust
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administrative remedies before bringing claim under § 2241). An inmate first must
informally present his complaint to staff, and staff shall attempt to informally
resolve any issue before an inmate files a request for administrative relief. 28
C.F.R. § 542.13(a). If unsuccessful at informal resolution, the inmate may raise his
complaint with the warden of the institution where he is confined. Id. at §
542.14(a). If dissatisfied with the response, he may then appeal an adverse
decision to the Regional Office and the Central Office of the BOP. Id. at §§
542.15(a) and 542.18. No administrative appeal is considered finally exhausted
until a decision is reached on the merits by the BOP’s Central Office. See Sharpe
v. Costello, No. 08-1811, 2008 WL 2736782, at *3 (3d Cir. July 15, 2008).
However, exhaustion is not required if there is no opportunity to obtain
adequate redress; if the issue presented only pertains to statutory construction; or if
the prisoner makes an affirmative showing of futility. Gambino v. Morris, 134
F.3d 156, 171 (3d Cir. 1998); Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d
Cir. 1986); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). Here,
Bermudez acknowledges that he has not yet exhausted his administrative appeal;
however, he argues that completing the administrative appeal would be futile
because he alleges that the staff who terminated him from RDAP are the same
people that will hear his grievance. (Doc. No. 1 at 3.)

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Bermudez’s conclusory assertion that the administrative process is a
“frivolous formality” and futile, without providing any more specificity, fails to
make the affirmative showing required of him. Because Bermudez has not yet
exhausted his administrative remedies with respect to the claim presented in his
petition, the Court will dismiss the § 2241 petition for failure to exhaust
administrative remedies. However, even if Bermudez was not required to exhaust
the administrative remedies before bringing this action, his claim is nonetheless
without merit.
The Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA)
amended 18 U.S.C. § 3621 to require the BOP to “make available appropriate
substance abuse treatment for each prisoner the Bureau determines has a treatable
condition of substance addiction or abuse.” 18 U.S.C. § 3621(b). The Act is
applicable to persons convicted of a “nonviolent offense” and allows the BOP to
reduce a prisoner’s sentence by up to one-year as an incentive for the successful
completion of the treatment program. See 18 U.S.C. § 3621(e)(2)(B); see also 28
C.F.R. § 550.58. However, while eligibility for early release under
§ 3621(e)(2)(B) is open to all prisoners who meet the statutory requirements, the
statute expressly vests the BOP with broad discretion to grant or deny sentence
reductions to eligible prisoners. See 18 U.S.C. § 3621(e)(2)(B) (“the period a
prisoner convicted of a nonviolent offense remains in custody after successfully
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completing a treatment program may be reduced by the Bureau of Prisons”)
(emphasis added).
Although Bermudez argues that he was wrongfully expelled from the BOP’s
RDAP and the expulsion violated his right to early release under § 3621(e),
pursuant to § 3621(e)(2)(B), an inmate is only entitled to early release upon the
successful completion of the drug treatment program. Because Bermudez was
expelled prior to full completion of the program, he is not entitled to early release.
Additionally, even if Bermudez was not expelled and successfully completed the
program, he is still not entitled to early release as § 3621 simply does not create an
entitlement to early release. See Orr v. Hawk, 156 F.3d 651, 654 (6th Cir. 1998)
(there is no protectable liberty interest in early release under § 3621(e)); O’Bar v.
Pinion, 953 F.2d 74, 84 (4th Cir. 1991) (a statute that creates only a hope about a
future discretionary decision by prison administrators is too speculative to create a
liberty interest); Heard v. Quintana, 184 F. Supp. 3d 515, 519 (E.D. KY. 2016)
(removal from the RDAP does not deprive an inmate of either procedural or
substantive due process because a prisoner has no liberty interest in discretionary
release from prison prior to the expiration of his or her sentence. Further, § 3621
does not implicate a constitutionally-protected liberty interest because it does not
mandate a sentence reduction).

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Moreover, given BOP’s authority to manage inmate drug treatment
programs, including RDAP, “any substantive decision by the BOP to admit a
particular prisoner into RDAP, or to grant or deny a sentence reduction for
completion of the program, is not reviewable by the district court,” and “[t]he
BOP’s substantive decisions to remove particular inmates from the RDAP program
are likewise not subject to judicial review.” Reeb v. Thomas, 636 F.3d 1224, 1227
(9th Cir. 2011); Santiago-Lebron v. Florida Parole Comm’n, 767 F. Supp. 2d 1340,
1352 (S.D. Fla. 2011). Consequently, the Court also does not have jurisdiction to
consider Petitioner’s challenge to his preclusion from RDAP.1
III.

Certificate of Appealability

Section 102 of the Antiterrorism and Effective Death Penalty Act
(28 U.S.C. §2253 (as amended)) codified standards governing the issuance of a
certificate of appealability for appellate review of a district court’s disposition of a
habeas petition. Federal prisoner appeals from the denial of a §2241 habeas corpus
proceeding are not governed by the certificate of appealability requirement.
United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc) (certificate
of appealability not required to appeal from denial of §2241 petition), abrogated on
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Accordingly, Petitioner’s motion for preliminary injunction (Doc. No. 2) will be
denied as Petitioner cannot meet the requirements for this extraordinary request for
relief. Specifically, he has not demonstrated that there is a substantial likelihood
that he will prevail on the merits, that he is being irreparably harmed or that he will
suffer irreparable harm if the preliminary injunction is not issued. See S & R Corp.
v. Jiffy Lube Int’l, Inc., 968 F.2d 371, 374 (3d Cir. 1992).
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other grounds by Gonzalez v. Thaler, 565 U.S. 134, 142 (2012)); Kornegay v.
Ebbert, 402 F. App’x 131, 133 (3d Cir. 2012). Thus, the Court need not address
this issue in the current action.
IV.

Conclusion

For the reasons stated above, the petition for a writ of habeas corpus will be
DISMISSED. An appropriate order follows.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: June 8, 2017

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