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Christopher Cook v. Richard B. Ives

January 14, 2011

CHRISTOPHER COOK, PETITIONER,
v.
RICHARD B. IVES, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a federal prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On June 25, 2007, petitioner was sentenced to a term of 90 months of incarceration for a violation of 18 U.S.C. § 1341 and 18 U.S.C. § 1342 (mail fraud and aiding and abetting) and 18 U.S.C. § 1956 and 18 U.S.C. § 1952 (promotion of unlawful activity and aiding and abetting). Petitioner's current release date, via good conduct time, is March 17, 2014.

This action is proceeding on the amended petition filed January 5, 2009. (Dkt. No. 5.) Petitioner challenges regulations enacted by the Bureau of Prisons ("BOP") regarding placement of prisoners in Residential Re-Entry Centers ("RRC").

Both parties have consented to the jurisdiction of the undersigned. (Dkt. Nos. 3, 4.) For the following reasons, the petition is denied.

II. Discussion

A. Subject Matter Jurisdiction

Respondent first argues that the court lacks subject matter jurisdiction on grounds that the claims raised challenge conditions of confinement and should be raised in a civil rights action pursuant to 42 U.S.C. 1983.

In Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008), the Ninth Circuit affirmed a grant of relief very similar to that requested here: a writ of habeas corpus directing the BOP to properly evaluate the petitioner for RCC placement. Id., at 1189. Although the question of subject matter jurisdiction was not expressly raised or discussed in Rodriguez, respondent's jurisdictional assertion is fundamentally inconsistent with the Ninth Circuit's decision in that case. In the same manner, it is also inconsistent with the recently filed case Sacora v. Thomas, 2010 WL 4925437 (9th Cir. Dec. 6, 2010). In Sacora, the Ninth Circuit entertained another appeal of a federal prisoner's section 2241 action challenging BOP policies for RRC placement, without finding that jurisdiction was lacking. Id.

Because respondent's jurisdictional argument has been, in effect, rejected by the Ninth Circuit, the undersigned finds that it has no merit.

B. Exhaustion of Administrative Remedies

Respondent next argues that petitioner failed to exhaust administrative remedies. In the petition, petitioner concedes that he has not exhausted administrative remedies. (Dkt. No. 5, at 7.)

Federal prisoners must exhaust their administrative remedies prior to the filing of a petition seeking relief pursuant to § 2241. E.g., Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). Under this exhaustion doctrine, "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed remedy has been exhausted." Laing, 370 F.3d at 998 (quoting McKart v. United States, 395 U.S. 185, 193 (1969)).

If a petitioner has not properly exhausted his claims, the district court in its discretion may either "excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court." Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Factors weighing in favor of requiring exhaustion include whether: (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and ...


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