Bishop v. Boyle
MEMORANDUM AND ORDER. The Petition for Writ of Habeas Corpus filed by Darlene Aurelia Bishop 1 is DISMISSED; The Order directing the government to answer 5 is VACATED. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
DARLENE AURELIA BISHOP,
July 06, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. 4:16-CV-758
MEMORANDUM AND ORDER
Darlene Aurelia Bishop is a federal prisoner incarcerated in the United States Bureau of
Prisons (“BOP”) at the Federal Prison Camp in Bryan, Texas. Bishop has filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241 (“Petition”) (Docket Entry No. 1), challenging
the administration of her sentence.
The Court ordered the government to answer the petition. Upon further review of all of
the pleadings and the applicable law, however, the court concludes that no answer is required
and that this case must be dismissed for the reasons explained below.
Bishop was sentenced to 70 months’ imprisonment pursuant to a conviction in the
United States District Court for the Western District of Texas. Petition at 1. With credit for
good conduct, Bishop’s projected release date is April 20, 2018. Id.
Bishop does not challenge the validity of her underlying conviction. Instead, she has
filed a boilerplate pleading which asserts that she is entitled to placement in a Residential
Reentry Center (“RRC”) for the final 12 months of her sentence pursuant to the Second Chance
Act of 2007, Pub. L. No. 110-199 (April 9, 2008). The court concludes, however, that the
Petition must be dismissed for reasons below.
Exhaustion of Remedies is Required
It is evident that Bishop did not attempt to present her claim for relief in the BOP’s threetiered administrative remedy program before filing this suit. Id. at 9-17. See 28 C.F.R. §§
542.10 – 542.19 (2016). The Fifth Circuit has determined that a federal prisoner seeking relief
under 28 U.S.C. § 2241 “must first exhaust his administrative remedies through the Bureau of
Prisons.” Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993) (citing United States v. Gabor,
905 F.2d 76, 78 n.2 (5th Cir. 1990) (citations omitted). Exceptions to the exhaustion requirement
are appropriate only where “‘the available administrative remedies either are unavailable or
wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would
itself be a patently futile course of action.’” Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994)
(quotation omitted). The petitioner bears the burden of showing the futility of exhaustion. Id.
Bishop does not meet that burden.
Bishop contends that exhaustion would be futile because former BOP Director Harley
Lappin “has taken a strong position on the issue [of allowing prisoners more than six months in
an RRC] and has thus far been unwilling to reconsider.”
Petition at 11.
comments attributed to former Director Lappin were made in 2008, and are remote in time. Id.
at 14. The boilerplate Petition contains no information showing what position, if any, current
BOP administration has taken on the subject of RRC placement. Although Bishop cites several
cases in support of her argument, none of them involve the Second Chance Act. Considering
that she is not projected for release until April 20, 2018, there is more than ample time for
Bishop to exhaust the administrative remedy process before she becomes eligible for placement
in an RRC. Under these circumstances, Bishop has not established that it would be futile for her
The Petition Lacks Merit
Even if Bishop had exhausted her administrative remedies before bringing this lawsuit,
the petition must be dismissed because it fails to state a valid claim for habeas corpus relief. The
Second Chance Act amended 18 U.S.C. § 3624(c) to increase the possible term of placement in
an RRC from six months to a period of no more than 12 months before a prisoner’s projected
release date. The amendment also requires the BOP to assess prisoners for placement on an
individual basis consistent with five factors set forth in 18 U.S.C. § 3621(b). Those factors are:
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence—
(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as
(5) any pertinent policy statement issued by the Sentencing Commission....
18 U.S.C. § 3621(b); see also 28 C.F.R. 57.22 (dictating that inmates will be considered for
“pre-release community confinement” in a manner consistent with 18 U.S.C. § 3621(b)).
A prisoner’s placement in any particular facility is a matter solely within the BOP’s
discretionary authority. See Moore v. U.S. Atty. Gen., 473 F.2d 1375, 1376 (5th Cir. 1973); see
also Stewart v. Daniels, Civil No. 1:13-184, 2014 WL 4949884, *1 (E.D. Tex. Sept. 30, 2014)
(“The duration of RRC placement is a matter to which the [Bureau of Prisons] retains
discretionary authority.”) (citation omitted). It is also well established that prisoners have no
constitutional right to be assigned to a particular institution, facility, or rehabilitative program.
See, e.g., Olim v. Wakinekona, 103 S. Ct. 1741, 1745 (1983); Meachum v. Fano, 96 S. Ct. 2532,
2538-40 (1976); Moody v. Daggett, 97 S. Ct. 274, 429 U.S. 78, 88 n.9 (1976). Nothing in the
Second Chance Act or § 3621(b) automatically entitles a prisoner to placement in an RRC. See
Creager v. Chapman, No. 4:09-713, 2010 WL 1062610, at *3 (N.D. Tex. Mar. 22, 2010) (citing
various cases). Bishop does not otherwise allege that the BOP has failed or refused to evaluate
her for placement in an RRC or that the BOP performed an improper assessment in her case. As
a result, the Petition raises no cognizable claim for review.
For the foregoing reasons, Bishop’s petition is dismissed with prejudice.
Certificate of Appealability
Bishop has not requested a certificate of appealability (“COA”), but this Court may
determine whether he is entitled to this relief in light of the foregoing rulings. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (“It is perfectly lawful for district court’s [sic] to
deny COA sua sponte. The statute does not require that a petitioner move for a COA; it merely
states that an appeal may not be taken without a certificate of appealability having been issued.”)
A petitioner may obtain a COA either from the district court or an appellate court, but an
appellate court will not consider a petitioner’s request for a COA until the district court has
denied such a request. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1988); see also
Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“[T]he district court should continue to review
COA requests before the court of appeals does.”). “A plain reading of the AEDPA compels the
conclusion that COAs are granted on an issue-by-issue basis, thereby limiting appellate review to
those issues alone.” Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
A COA may issue only if the petitioner has made a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United States v. Kimler, 150 F.3d 429,
431 (5th Cir. 1998). A petitioner “makes a substantial showing when he demonstrates that his
application involves issues that are debatable among jurists of reason, that another court could
resolve the issues differently, or that the issues are suitable enough to deserve encouragement to
proceed further.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S.
966 (2000). The Supreme Court has stated that:
Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253© is straightforward:
The petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims
debatable or wrong.
The issue becomes somewhat more
complicated where . . . . the district court denies a habeas petition
on procedural grounds. We hold as follows: When the district
court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, 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 the district court was
correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This Court has carefully considered Bishop’s petition. The Court finds that reasonable
jurists would not find it debatable that Bishop’ claims are foreclosed by clear, binding precedent.
Bishop thus fails to make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). The Court therefore concludes that Bishop is not entitled to a certificate of
For the foregoing reasons, it is ORDERED as follows:
The Petition for Writ of Habeas Corpus filed by Darlene Aurelia Bishop (Dkt. No.
1) is DISMISSED;
The Order directing the government to answer (Dkt. No. 5) is VACATED.
The Clerk will provide a copy of this Memorandum Opinion and Order to the parties.
SIGNED on this 6th day of July, 2016.
Kenneth M. Hoyt
United States District Judge
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