The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is a federal prisoner proceeding pro se with an application
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties
have consented to the jurisdiction of the undersigned.*fn1
Petitioner was sentenced to an aggregate 255-month prison
term as follows: petitioner pled guilty to "conspiracy to possess with
intent to distribute quantities of cocaine and cocaine base" in
violation of 18 U.S.C. §§ 846 & 841, and was sentenced to 215 months
on August 7, 2003, in the Western District of North Carolina.
Petition, p. 2; Answer, p. 2 & Attachment 1 (docket # 10-1), Judgment
in Criminal Case # 5:02CR37-5-V, pp. 2- 4.*fn2
He thereafter pled guilty to "knowingly escap[ing] from the custody of an
institutional facility in which he was lawfully confined" in violation
of 18 U.S.C. § 751, and was sentenced, on February 18, 2004, to a
40-month term to be served consecutively to the prior sentence. Id.,
Judgment in Criminal Case # 5:03CR41-1-V, pp. 5-9.*fn3
Petitioner was additionally ordered to serve five years and three
years on supervised release upon his projected release date which is
scheduled to be October 23, 2021, with Good Conduct Time Release.
Petition, p. 2; see also, Answer, p. 2 & Attachment 2, Public
Information Data, Good Conduct Time Release. Petitioner was originally
serving his sentence at the United States Penitentiary (USP) Big
Sandy, but, according to petitioner, due to being "infraction free and
maintaining good programming," he "was transferred to a medium
facility," Federal Correctional Institution (FCI) Herlong.
p. 2. Petitioner's recent notice of a change of address indicates
that petitioner is now housed at USP Atwater.*fn4 See
docket # 14, Notice of Change of Address, filed on January 5, 2012.
Petitioner contends that he is being deprived of his liberty interest
because he is being confined in prison rather than in a community
correctional center (CCC) program for the duration of his sentence.
Petition, p. 2.
Respondent asserts that petitioner has failed to exhaust his administrative remedies prior to filing the instant petition. Answer, pp. 3, 6-9. Petitioner concedes both that it is well settled that before prisoners file a petition under § 2241, federal prisoners must exhaust administrative remedies and that he has not exhausted his remedies. Petition, pp. 3-4, citing, inter alia, Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). However, petitioner maintains exhaustion should be excused in his case as futile. Id., at 4. Respondent argues that to excuse the lack of administrative exhaustion "would create such an exception to the PLRA [Prison Litigation Reform Act] where none is allowed." Answer, p. 7, citing Porter v. Nussle, 534 U.S. 516, 122 S. Ct. 983, 990-91 (2002).
There is no statutory requirement, pursuant to 28 U.S.C. § 2241, that federal prisoners must exhaust administrative remedies before filing a habeas corpus petition in court, thus it is not a jurisdictional prerequisite. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 115 S. Ct. 2021 (1995). Nevertheless, federal courts "require as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241.... Prudential limits, like jurisdictional limits and limits on venue, are ordinarily not optional."Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on another ground by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S. Ct. 2422 (2006); see also, Cristobal v. Cruz, 2007 WL 2746742 *1 (N.D. Cal. 2007). Thus, while "courts have discretion to waive the exhaustion requirement when prudentially required, this discretion is not unfettered." Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004). Requiring administrative exhaustion (1) allows for "the appropriate agency to develop a factual record and apply its expertise" which "facilitates judicial review;" (2) permits agencies to grant the requested relief thus conserving judicial resources; and (3) "fosters administrative autonomy" by providing agencies an opportunity to correct their own mistakes. Sanders v. Warden, USP-Allenwood, 2008 WL 4006755 *1 (M.D. Pa. 2008), quoting Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir.1996). Nonetheless, as articulated by the Ninth Circuit:
[w]e do not hold that the exhaustion requirement can never be waived. In S.E.C. v. G.C. George Sec., Inc., 637 F.2d 685, 688 (9th Cir.1981), we noted that "there are a number of exceptions to the general rule requiring exhaustion, covering situations such as where administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void." See also Beharry v. Ashcroft, 329 F.3d 51, 62 (2nd Cir.2003) ("Specifically, exhaustion of administrative remedies may not be required when (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question.") (internal quotation marks omitted). Similar concerns govern a court's determination of whether to excuse a failure to exhaust judicial remedies.
Laing v. Ashcroft, 337 F.3d at 1000-01; see also, Murgia v. Copenhaver, 2009 WL 3707113 *2 (N. D. Cal. 2009).
Finally, as in all habeas corpus matters, petitioner has the burden of demonstrating exhaustion in a § 2241 habeas petition. Coady v. Vaughn, 251 F.3d 480, 488 (3rd Cir. 2001); Williams v. O'Brien, 792 F.2d 986 (10th Cir. 1986).
Administrative Appeal Process
The Bureau of Prisons ("BOP") has established a multi-tier system by which a prisoner may seek formal review of any aspect of his imprisonment. See 28 C.F.R. §§ 542.10-542.16 (1994). First, "[i]nmates shall informally present their complaints to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for Administrative Remedy." Id., at § 542.13(a). Second, "[i]f an inmate is unable to informally resolve his complaint, he may file a formal written complaint [to the warden], on the appropriate form, within twenty (20) calendar days of the date on which the basis of the complaint occurred." Id., at § 542.15(a). In the event the inmate is dissatisfied with the warden's response, he may file an appeal to the BOP Regional Director within twenty (20) days. Id., § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, that decision may then be appealed to the BOP Central Office within thirty (30) calendar days from the date of the Regional Director's response. Id. No administrative remedy appeal is considered to have been fully exhausted until rejected by the BOP's Central Office. 28 C.F.R. § 542, et seq.
Sanders v. Warden, supra, 2008 WL 4006755 at*2.
Petitioner evidently filed in this court after receiving the warden's response, in other words, only after having received the initial formal level denial. That response from the warden, dated April 9, 2010, is set forth in the next section of this order. Answer, Attachment 3 (docket # 10-1), p. 17. In order to have exhausted administratively, petitioner would have had to proceed to the filing of an appeal to the Regional Director. Had he received a denial from the Regional Office, he would have had to take the final step to exhaust by filing a BP-11 form to the BOP General Counsel in Washington, D.C. Martinez v. Roberts, 804 F.2d at 571. Petitioner maintains, however, that he would be subjected to irreparable injury if required to exhaust and, based on the policy the Board of Prisons is following (see below), to proceed beyond the warden's response would have been futile. Traverse, p, 2. Based on the substance of petitioner's claim, it does appear that it would have been futile for petitioner to exhaust his claim administratively, primarily for the reason that his claim lacks merit. In any case, the court will, in this instance, address the substance of his claim despite his failure to exhaust administratively. Cf 28 U.S.C. § 2254 (b)(2) (permitting a court to bypass an exhaustion issue in a state habeas matter if the petition would be denied on its merits.)
As noted, petitioner claims that he has a liberty interest in being confined in a community correctional center (CCC) program rather than a prison for the duration of his sentence. Petition, p. 2, citing, inter alia, Rodriguez v. Smith, 541 F.3d 1180,  (9th Cir. 2008) (finding that BOP [Board of Prisons] regulations conflicted "with the plain language of 18 U.S.C. § 3621(b) as to when an inmate may be considered for initial placement in or transfer to an RRC [Residential Re-entry Center]" and affirming the writ granted by the district court ordering petitioner to be considered promptly for an RRC transfer "without reference to 28 C.F.R. §§ 570.20 and 570.21"; Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004) (holding that 18 U.S.C. § 3621(b) authorizes transfer of petitioner "to a CCC at any time during his prison term" and is not subject to "temporal limitations of 18 U.S.C.§ 3624(c)"); Howard v. Ashcroft, 248 F. Supp.2d 518, 520, 544-47 (M.D. La. 2003) (granting preliminary injunction to enjoin BOP from retroactive application of new policy used in attempt to transfer petitioner from CCC to federal corrections facility); Estes v. Federal Bureau of Prisons, 273 F. Supp. 2d 1310-11 (S.D. Ala. 2002) (holding that BOP exceeded its statutory authority in adopting policy of December 20, 2002, which purported to limit BOP's exercise of discretion under 18 U.S.C. § § 3621(b).
Petitioner argues that the analytical scheme of Chevron militates for his immediate placement in CCC/RRC. Petition, pp. 5-6, referencing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 104 S. Ct. 2778 (1984). In Chevron, the Supreme Court stated:
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. 
If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute,  as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the ...