Hillman v. Willis

Filing 4

MEMORANDUM OPINION AND ORDER. Signed by Judge Frank Montalvo. (jg1)

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS jfl17
rw
EL PASO DIVISION

"'

AM

RICHARD MCNEAL HILLMAN,
Petitioner,

55

ICr COURT

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STERU Dl

10:

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OF TEXAS

BY

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0!PUT Y

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v.

EP-17-CV-326-FM

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§

J. SCOTT WILLIS, Warden,
Respondent.

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§

MEMORANDUM OPINION AND ORDER
Petitioner Richard McNeal Hiliman, federal prisoner number 47559-074, asks the Court to
intervene in his behalf with the Bureau of Prison through apro se petition for a writ of habeas corpus under
28 U.S.C. § 2241 (ECF No. 11).1

Specifically, Hillman asks the Court to order Respondent J. Scott

Willis to consider him for placement in the Residential Drug Abuse Treatment Program and a residential

reentry center to ensure his eligibility for early release from prison under the Second Chance Act.2
The Court must order a respondent to show cause why a petition pursuant to

§

2241 should not be

granted "unless it appears from the [petition] that the [petitioner] or person detained is not entitled
thereto."3

Having considered the petition and the applicable legal authorities, the Court concludes that it

appears from the face of the petition that Hillman is not entitled to relief.

Hillman is currently incarcerated at the La Tuna Federal Correctional Institution in Anthony, Texas.
Anthony is located in El Paso County, Texas, which is within the territorial limits of the Western District
of Texas. 28 U.S.C. § 124(d)(3) (2012).
2

Pet'r's Pet. 18, ECF No. 1-1.
28 U.S.C. § 2243 (2012).
-1-

BACKGROUND
The United States District Court for the Eastern District of Tennessee accepted Hiliman' s
guilty pleas on two counts of conspiracy to possess with the intent to distribute a Schedule I

controlled substance analogue, aipha-pyrrolidinopentiophenone, and one count of felon in

possession of a firearm, namely a Maverick (Mossberg) Model 88, 12 gauge shotgun. The
Court sentenced him to an aggregate term of 188 months' imprisonment and recommended his
participation in the Bureau of Prisons' Residential Drug Abuse Treatment Program.4
The Residential Drug Abuse Program is an intensive nine-month, 500-hour substance
abuse rehabilitation program offered to federal prisoners who qualify and voluntarily elect to
enroll. Upon successful completion of the program, prisoners are eligible for up to a

twelve-month reduction in their sentences. Due to high demand and insufficient space,
prisoners are placed on waiting lists and accepted into the program when an opening becomes
available.
In his petition, Hiliman asks the Court to order Willis to consider him for immediate

placement in a Residential Drug Abuse Treatment Program and a residential reentry center to
ensure his eligibility for the earliest possible release from prison under the Second Chance Act.5

APPLICABLE LAW
A petitioner may attack the manner in which his sentence is being executed in the district court

with jurisdiction over his custodian pursuant to 28 U.S.C. § 2241 6 However, "[h]abeas corpus relief is

' J. Crim. Case, ECF No. 349, United States v. Hiliman, 2:14-CR-70-RLJ (E.D. Tenn. Aug. 17, 2015).

Pet'r's Pet. at 18.
6

Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001); Tolliver v. Dobre, 211 F.3d 876,
-2-

extraordinary and 'is reserved for transgressions of constitutional rights and for a narrow range of injuries
that ... if condoned, result in a complete miscarriage ofjustice.'

' To prevail, a habeas corpus petitioner

must show that he is "in custody in violation of the Constitution or laws or treaties of the United States."8

ANALYSIS
A. Failure to Exhaust Administrative Remedies

Hiliman concedes he has not exhausted his administrative remedies. He asks that the Court
excuse him from exhausting due to futility.9 According to Hillman, the Director of the Bureau of Prisons,

Harley Lappin, "has taken a strong position on the issue [of allowing prisoners more than six months in a

residential reentry center] and has thus far been unwilling to reconsider."1° Hiliman cites no facts to
support this statement, and the cases he cites in support of his claim predate, and are unrelated to, the

Second Chance Act.'

An initial issue a court must address when screening a § 2241 petition is whether the petitioner has
exhausted his administrative

remedies.'2

A petitioner seeking habeas relief must first exhaust all

877 (5th Cir. 2000); United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).

'Kinder v. Purdy, 222 F.3d 209,213 (5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d 367, 368
(5th Cir. 1992)).
8

28 U.S.C. § 224 1(c) (2012).

Pet'r's Pet. at 11.
10

Id.

' Id.; see, e.g., McKart v. United States, 395 U.S. 185 (1969) (discussing the exhaustion requirement in
context of appeal of Selective Service classification); Aron v. LaManna, 4 F. App'x 232 (6th Cir. Feb.6,
2001) (requiring exhaustion of administrative remedies before a prisoner could bring a petition under 28
232(FB), 2003 WL
U.S.C. § 2241 to recover good-time credits); Gutierrez v. United States, No. 03C
21521759 (E.D.N.Y. July 3, 2003) (requiring a prisoner to exhaust administrative remedies).

Vi

12

See Fuller

v.

Rich,

ii F.3d 61, 62 (5th Cir. 1994) (per curiam) (addressing exhaustion in context of a §
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administrative remedies that might provide appropriate relief.'3 "Exceptions to the exhaustion

requirement are appropriate 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."4 Exceptions may be made only in "extraordinary circumstances," which the

petitioner bears the burden to establish.'5
The Bureau of Prisons uses a three-tiered Administrative Remedy Program to review inmate

complaints relating to all aspects of their imprisonment.'6 A federal prisoner must pursue the procedures
set forth in the program prior to seeking relief in a district court.'7

Hillman indicates that his projected release date is December 5, 2027.18 Ample time remains for

him to engage in the administrative remedy process. Although Hiliman obviously believes the Bureau of
Prisons will deny his request for what amounts to early placement in a Residential Drug Abuse Treatment
Program, early placement in a residential reentry center, and early release from prison, he offers no factual

basis in his petition to support that belief. While exhaustion of remedies may take time, "there is no
reason to assume that ... prison administrators ... will not act expeditiously."19

2241 challenge by a federal prisoner to a parole decision).
13

Id; Rourke v. Thompson,

14

Fuller,

15

Id

16

28 C.F.R. § 542.10 etseq.

17

Rourke,

18

Pet'r's Pet, at

19

Preiser v. Rodriguez, 411 U.S. 475, 494-95 (1973).

11

11

F.3d 47,49(5th Cir. 1993).

F.3d at 62 (internal citations omitted).

11

F.3d at 49.
1.

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Hiliman gives no indication in the petition that he has even attempted to begin the administrative
remedy process, and he has presented nothing, other than speculation, to support his contention that he
should be excused from exhausting those remedies. If the Bureau of Prisons has failed in some way to
timely and correctly evaluate Hillman for placement in the Residential Drug Abuse Treatment Program
and a residential reentry center, it should be afforded the opportunity to rectify the error.2° Hiliman

provides nothing to show the type of extraordinary circumstances needed to justify failure to exhaust
administrative remedies, and dismissal is warranted on that basis alone.21

Furthennore, even if Hillman had exhausted his administrative remedies, he would not be entitled
to relief.
B. The Petition Fails on the Merits

The Second Chance Act amended 18 U.S.C.

§

3624(c) to allow the Bureau of Prisons to reduce

"[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully

completing a treatment program ..., but such reduction may not be more than one year from the term the

prisoner must otherwise serve."22 "When an eligible prisoner successfully completes drug treatment, the
Bureau thus has the authority, but not the duty, both to alter the prisoner's conditions of confinement and
to reduce his term of imprisonment."23

20

See Smith v. Thompson, 937 F.2d 217, 219 (5th Cir.1991) (explaining an agency should be given
opportunity to correct its own error before aggrieved party seeks judicial intervention).
21

See Rivkin v. Tamez, 351 F. App'x 876, 877-78 (5th Cir. 2009) (per curiam) (affirming dismissal of
prisoner's § 2241 petition arguing violation of the Second Chance Act for failure to exhaust administrative
remedies).
22

23

18 U.S.C. § 3621 (2012).

Lopez

v.

Davis, 531 U.S. 230, 241 (2001).
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Hiliman's petition devotes several pages to a general discussion of the Second Chance Act of
2007. It includes broad allegations that the Bureau of Prisons does not properly implement the Second

Chance Act. Noticeably absent from Hiliman's petition are any facts to show how, or if, the

implementation affects Hillman. Hillman' s petition does not allege the Bureau of Prisons failed or
refused to evaluate Hillman for placement in a residential reentry center. It also does not allege Hiliman

received an assessment with which he is dissatisfied. Hiliman has not met his burden of showing he is "in
custody in violation of the Constitution or laws or treaties of the United

States."24

Accordingly, the Court

finds nothing alleged in the petition would entitle Hiliman to relief.
The Court, therefore, enters the following orders:

IT IS ORDERED that Petitioner Richard McNeal Hiliman's petition for a writ of habeas corpus
under 28 U.S.C.

§

2241 (ECF No. 1-1) is DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that all pending motions, if any, are DENIED as moot.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.

SIGNED this

day of November, 2017.

FRANK MONTALVO
UNITED STATES DISTRICT JUDGE

24

28 U.S.C. § 224 1(c) (2012).