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Shelton Mckenzie v. Paul Copenhaver

August 31, 2012

SHELTON MCKENZIE,
PETITIONER,
v.
PAUL COPENHAVER, RESPONDENT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent*fn1 is represented by the Office of the United States Attorney.

BACKGROUND

On January 20, 2006, Petitioner was sentenced in the United States District Court for the Southern District of Alabama to a term of 125 months for violations of 21 U.S.C. § 846 and 18 U.S.C. § 1956(A)(1)(a)(i). (See Resp't's Answer, Ex. 1.) Petitioner has a projected release date, via good conduct time release, of June 26, 2013. (Id.)

Petitioner filed the instant federal petition for writ of habeas corpus on May 3, 2012. He contends that the Bureau of Prisons ("BOP") has improperly refused to consider him for placement in a Residential Re-Entry Center ("RRC") pursuant to 18 U.S.C. § 3621(b). He also claims that a placement of six months or less runs afoul of 18 U.S.C. § 3624(a)(2). Last, he claims the BOP's failure to consider him for RRC placement violates the Administrative Procedures Act.

Respondent filed an answer to the petition on July 31, 2012. Respondent claims the petition should be denied because the Court lacks subject matter jurisdiction, Petitioner has failed to exhaust administrative remedies, and the petition is moot.

Petitioner did not timely file a traverse.

DISCUSSION

I. Subject Matter Jurisdiction

Respondent argues that the petition should be dismissed because this Court lacks subject matter jurisdiction.

A federal court may only grant a petition for writ of habeas corpus if the federal petitioner can demonstrate that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(a), (c)(3). A habeas corpus petition is the correct method for a prisoner to challenge "the very fact or duration of his confinement," and where "the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment." Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Any deprivation that does not affect the fact or duration of a prisoner's overall confinement is necessarily a condition of that confinement. Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999). In other words, if a successful conditions of confinement challenge would not necessarily shorten the prisoner's sentence, then § 1983 is the appropriate vehicle. See Wilkinson v. Dotson, 544 U.S. 74 (2005). In the federal context, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), provides petitioners with a remedy for violation of civil rights by federal actors. C.f., Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (challenges to conditions of confinement by state prisoners should be presented in a 42 U.S.C. § 1983 civil rights action rather than a habeas corpus petition).

In the instant petition, Petitioner's claims that the BOP has failed to grant him individualized consideration for transfer to an RRC for the full twelve months as provided in 18 U.S.C. § 3624(c) as amended by the Second Chance Act of 2007, Pub. L. No. 110-199. Respondent correctly argues that this claim does not challenge the fact or duration of Petitioner's sentence. The Ninth Circuit has determined that release to an RRC is not a release from incarceration. Rodriguez v. Smith, 541 F.3d 1180 (9th Cir.2008). Therefore, a transfer to an RRC will not affect the fact or duration of his confinement, and therefore does not give rise to a claim for which habeas relief can be granted. Moreover, the Ninth Circuit recently held that federal district courts lack jurisdiction to review individualized discretionary decisions made by the BOP pursuant to 18 U.S.C. § 3621. See Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir.2011). Accordingly, this Court does not have subject matter jurisdiction to review the instant challenge under section 2241, and the petition must be dismissed.

II. Exhaustion

A petitioner who is in federal custody and wishes to seek habeas relief pursuant to 28 U.S.C. ยง 2241 must first exhaust available administrative and judicial remedies. Brown v. Rison, 895 F.2d 533, 535 (9th Cir.1990); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984). It is only after a petitioner has fully exhausted his administrative remedies that he becomes entitled to present his claims to the federal court. See United States v. Mathis, 689 F.2d 1364, 1365 (11th Cir.1982). In Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.1983) (per curiam), the Ninth Circuit explained why a petitioner must first exhaust his administrative remedies before filing for habeas relief: "The requirement of exhaustion of remedies will aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the ...


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