Gordon v. Warden

Filing 7

MEMORANDUM (Order to follow as separate docket entry) re 1 Petition for Writ of Habeas Corpus(Lodged No FF and No Motion for IFP Filed), filed by Romaine Gordon, 4 MOTION to Expedite filed by Romaine Gordon Signed by Honorable Malachy E Mannion on 8/29/2024. (gg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ROMAINE GORDON,

:

Petitioner
v.
WARDEN, FCI ALLENWOOD
LOW,
Respondent

:

CIVIL ACTION NO. 3:24-1322

:

(JUDGE MANNION)

:
:

MEMORANDUM
Pro se Petitioner Romaine Gordon (“Gordon”), who is incarcerated at
FCI Allenwood Low, initiated this action by filing a petition for a writ of habeas
corpus under 28 U.S.C. §2241, alleging that the Federal Bureau of Prisons
(“BOP”) improperly denied his request for Residential Reentry Center/Home
Confinement (“RRC/HC”) placement. (Doc. 1.) He has also filed a motion for
expedited consideration of his petition and an affidavit in support of the
motion. (Docs. 4, 5.) For the following reasons, the Court will dismiss the
habeas petition without prejudice based on Gordon’s failure to exhaust the
BOP’s available administrative remedies and deny the motion for expedited
consideration.

I.

BACKGROUND
Gordon is serving a sixty-three (63)-month term of imprisonment

following his guilty plea to one count of attempted wire fraud (18 U.S.C.
§§1343, 1349) and sentencing in the United States District Court for the
District of South Carolina. (Id. at 1); see also J. at 1–2, United States v.
Gordon, No. 4:21-cr-293 (D.S.C. Apr. 27, 2022). He asserts that his
projected release date is November 29, 2024. See (Doc. 1 at 3). But see
Bureau

of

Prisons

Inmate

Locator,

Federal

Bureau

of

Prisons,

https://www.bop.gov/inmateloc/ (last visited August 21, 2024) (stating
Gordon’s release date is January 18, 2025).
In his Section 2241 habeas petition, Gordon alleges that the BOP
violated his equal protection rights under the Fifth Amendment to the United
States Constitution by denying his request for RRC/HC placement. (Doc. 1
at 2, 6.) Regarding this habeas claim, Gordon acknowledges that he has not
exhausted his administrative remedies with the BOP insofar as he indicates
that he has appealed from the initial denial of his RRC/HC request to the
Warden of FCI Allenwood Low, and the Warden’s response to his appeal
was due on August 18, 2024. (Id. at 2.) He nevertheless argues in his motion
for expedited consideration and supporting affidavit that the Court should

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excuse him from the exhaustion requirement because requiring him to
exhaust would render his petition moot. (Doc. 4 at 1; Doc. 5 at 1.)
II.

DISCUSSION
A.

Legal Standard

Under Section 2241, habeas relief may be extended to a federal
prisoner only when they are “in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §2241(c)(3). Pursuant to Rule 4
of the Rules Governing Section 2254 Cases in the United States District
Courts, applicable to Section 2241 petitions through Rule 1(b), this Court has
the authority to dismiss a habeas petition if it “plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief.”
R. 4, 28 U.S.C. foll. §2254; see R. 1(b), 28 U.S.C. foll. §2254 (“The district
court may apply any or all of these rules to a habeas corpus petition not
[involving a petition under 28 U.S.C. §2254].”); see also Heath v. Bell, 448
F. Supp. 416, 417 (M.D. Pa. 1977) (noting that Rule 1(b) of the Rules
Governing Section 2254 Habeas Petitions in the United States District
Courts renders Rule 4 applicable to Section 2241 habeas petitions). Thus, a
district court is “authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849,
856 (1994) (citing R. 4, 28 U.S.C. foll. §2254).
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B.

Analysis

As explained above, Gordon recognizes that he has not fully
exhausted his administrative remedies as to the sole claim in his Section
2241 habeas petition but seeks to be excused from exhaustion because he
purportedly has a release date of November 29, 2024. (Doc. 1 at 3; Doc. 4
at 1; Doc. 5 at 1.) Unlike with Section 2254 and 2255 habeas petitions, there
is no explicit statutory exhaustion requirement for Section 2241 habeas
petitions. See Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000) (“[T]here
is no statutory exhaustion requirement attached to §2241[.]”). Nevertheless,
the Third Circuit Court of Appeals has “consistently applied an exhaustion
requirement to claims brought under §2241.” Id. (citations omitted).
Exhaustion “allow[s] the appropriate agency to develop a factual record and
apply its expertise[,] . . . conserves judicial resources[,] and . . . provide[s]
agencies the opportunity to correct their own errors [which] fosters
administrative autonomy.” Moscato v. Fed. Bureau of Prisons, 98 F.3d 757,
761–62 (3d Cir. 1996) (citations omitted).
Regarding exhaustion within the BOP, it has an Administrative
Remedy Program through which federal prisoners can request review of
nearly any aspect of their imprisonment. See 28 C.F.R. §542.10(a) (“The
purpose of the Administrative Remedy Program is to allow an inmate to seek
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formal review of an issue relating to any aspect of his/her own
confinement.”). Specifically, the BOP has a four (4)-step administrative
process through which an inmate can address issues concerning the
conditions of their confinement. See id. §542.13(a)–15(a). Except in
circumstances inapplicable here, an inmate must first informally present the
complaint to staff, who must attempt to informally resolve the matter. See id.
§542.13(a) (“Except as provided in §542.13(b), an inmate shall first present
an issue of concern informally to staff, and staff shall attempt to informally
resolve the issue before an inmate submits a Request for Administrative
Remedy.”). If the informal resolution is unsuccessful, then the inmate must
execute the appropriate form to bring the matter to the attention of the
Warden, within twenty (20) calendar days of the date of the incident. See id.
§542.14(a) (“The deadline for completion of informal resolution and
submission of a formal written Administrative Remedy Request, on the
appropriate form (BP–9), is 20 calendar days following the date on which the
basis for the Request occurred.”). If the inmate is dissatisfied with the
Warden’s response, they may then appeal to the Regional Director within
twenty (20) calendar days. See id. §542.15(a) (“An inmate who is not
satisfied with the Warden’s response may submit an Appeal on the
appropriate form (BP–10) to the appropriate Regional Director within 20
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calendar days of the date the Warden signed the response.”). The inmate
may then, if dissatisfied with the Regional Director’s response, appeal to the
General Counsel at the BOP’s Central Office within thirty (30) calendar days.
See id. (“An inmate who is not satisfied with the Regional Director’s response
may submit an Appeal on the appropriate form (BP–11) to the General
Counsel within 30 calendar days of the date the Regional Director signed the
response.”). This is the final administrative appeal level in the BOP, and no
administrative appeal is considered to have been fully exhausted until
considered by the BOP’s General Counsel. See id. (“Appeal to the General
Counsel is the final administrative appeal.”); see also Redmond v. Dortch,
823 F. App’x 266, 267 (5th Cir. 2020) (unpublished) (“Redmond did not fully
exhaust his remedies because he never completed the fourth and final step
of appeal to the Office of General Counsel.”).
Exhaustion is the rule in most cases, and failure to exhaust will
generally preclude federal habeas review. See Eiland v. Warden Fort Dix
FCI, 634 F. App’x 87, 89 (3d Cir. 2015) (unpublished) (explaining that
“exhaustion is a precondition to bringing suit” and summarily affirming district
court’s dismissal of Section 2241 petition due to petitioner’s failure to
exhaust). Only in rare circumstances is exhaustion of administrative
remedies not required. For example, exhaustion is unnecessary if “the issue
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presented involve[s] only statutory construction.” Vasquez v. Strada, 684
F.3d 431, 433–34 (3d Cir. 2012) (citing Bradshaw v. Carlson, 682 F.2d 1050,
1052 (3d Cir. 1981)). Similarly, exhaustion is not required “if an attempt to
obtain relief would be futile or where the purposes of exhaustion would not
be served.” Cerverizzo v. Yost, 380 F. App’x 115, 116 (3d Cir. 2010)
(unpublished); see also Duckworth v. Serrano, 454 U.S. 1, 3 (1981)
(explaining that “[a]n exception is made [to the exhaustion requirement] only
if there is no opportunity to obtain redress in state court or if the corrective
process is so clearly deficient as to render futile any effort to obtain relief”).
In this case, Gordon does not articulate any legal basis to support his
suggestion of futility, i.e., that he need not exhaust his administrative
remedies at the BOP because of his impending November 29, 2024 release
date. Even if he attempted to do so, his argument would fail because, as
recently stated:
The Court is unaware of any decision from the Third Circuit Court
of Appeals holding that a federal prisoner may be excused from
the exhaustion requirement on that ground. Additionally, district
courts within the Third Circuit have repeatedly rejected the
argument that an inmate can be excused from the exhaustion
requirement simply because [their] projected release date is
approaching, and [they] may not complete [their] administrative
appeal before the release date. See, e.g., Brown v. Sage, No.
22-cv-325, 2022 WL 1295414, at *1-2 (M.D. Pa. April 29, 2022);
Malvestuto v. Martinez, No. 09-cv-1339, 2009 WL 2876883, at
*2-3 (M.D. Pa. Sept. 1, 2009); Bartolotti v. Knight, No. 22-cv6137, 2022 WL 17959577, at *1-2 (W.D. Pa. Dec. 27, 2022);
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Rosales v. Hollingsworth, No. 15-cv-3840, 2015 WL 4314572, at
*2 (D.N.J. July 14, 2015).
Meadows v. Warden, FCI-Allenwood Low, No. 3:24-cv-952, 2024 WL
3871810, at *2 (M.D. Pa. Aug. 19, 2024). Moreover, as Gordon points out in
his petition, the Warden’s response to his initial formal request was due on
August 18, 2024. (Doc. 1 at 3.) As such, he still has ample time to complete
the remainder of the administrative process before seeking habeas relief.
Accordingly, there is no factual or legal basis upon which this Court could
conclude that requiring Gordon to fully exhaust his administrative remedies
with the BOP is futile, and the Court must deny his motion for expedited
consideration and dismiss without prejudice his Section 2241 habeas
petition.
C.

Certificate of Appealability

To receive a certificate of appealability under 28 U.S.C. §2253(c),
Gordon must demonstrate, “at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
th[is Court] court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). Here, the Court concludes that Gordon has made no
such showing. Thus, a certificate of appealability will not issue in this case.

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III.

CONCLUSION
Based on the foregoing, the Court will deny Gordon’s motion for

expedited consideration and dismiss without prejudice his Section 2241
habeas petition. In addition, a certificate of appealability will be not issued,
and the Clerk of Court will be directed to close this case. An appropriate
order follows.

S/ Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: August 29, 2024
24-1322-01

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