Petitioner is a federal prisoner without counsel proceeding with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This case is before the undersigned pursuant to the parties' consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2). Petitioner challenges the Warden's refusal to grant his request for a transfer to a Residential Re-entry Center or Community Correctional Center (hereinafter RRC or CCC) to serve the remainder of his sentence. In opposing the granting of relief, respondent contends that petitioner has failed to exhaust his administrative remedies, that this court lacks subject matter jurisdiction over this action, and that petitioner's claims are moot because he has already received an individualized RRC placement determination. For the following reasons, petitioner's application for habeas corpus relief must be denied.
On August 24, 2007, petitioner was sentenced to 97 months in federal prison following his conviction for distribution of cocaine within 1,000 feet of a protected location. Dckt. No. 13-1 at 3, 4. Petitioner's eligibility date for home detention is December 11, 2013, and his projected release date is June 11, 2014. Id. Petitioner is currently serving his sentence at the Federal Correctional Institution in Herlong, California. Dckt. No. 13 at 2.
On July 1, 2010, petitioner filed an "inmate request to staff" in which he asked to be placed in a Residential Re-entry Center for the remainder of his sentence. Dckt. No. 13-1 at 6. Petitioner's Federal Bureau of Prisons (BOP) Unit Team denied that request on July 23, 2010, after taking into consideration the following five factors: (1) the resources of the facility contemplated; (2) the nature and circumstance of the offense; (3) the history and characteristics of the prisoner; (4) any statement of the court that imposed the sentence; and (5) any pertinent policy statement issued by the U.S. Sentencing Commission. Id. After considering these factors, the BOP Unit Team determined that petitioner did not meet the criteria for immediate RRC placement. Id. Petitioner was advised of the Unit Team's decision in a written response that explained the five factors considered and the circumstances specific to petitioner that supported the unfavorable decision. Id. Petitioner states that he subsequently filed another request with the Unit Team for placement in an RRC or CCC but was told that he was not eligible to be transferred until "his last 10% (ten percent) of his sentence." Dckt. No. 1 (Pet.) at 3.
On August 26, 2010, petitioner filed a form entitled "Request for Administrative Remedy," in which he again requested that he be placed in "a RRC/CCC for the remainder of my time." Dckt. No. 13-1 at 7. In evaluating this request, the BOP noted that the Unit Team had conducted an analysis of the five factors set forth above and had determined that petitioner did not meet the criteria for placement in an RRC or CCC. Id. at 8. On October 21, 2010, petitioner's Request for Administrative Remedy was denied in a form signed by the Warden. Id.
Petitioner was advised that if he was dissatisfied with the Warden's response, he could submit a Regional Appeal to the Regional Director of the Federal Bureau of Prisons. Id. There is no evidence in the file that petitioner filed a regional appeal.
Petitioner filed the instant federal petition for a writ of habeas corpus on January 3, 2011. Respondent filed an answer on March 25, 2011, and petitioner filed a traverse on April 25, 2011.
II. Applicable Standards of Review
Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that his custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). A federal prisoner who challenges the validity or constitutionality of his conviction must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. A federal prisoner challenging the manner, location, or conditions of the execution of a sentence, as petitioner does here, must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). The court's habeas jurisdiction extends to claims challenging the BOP's denial of RRC placement. See Rodriguez v. Smith, 541 F.3d 1180, 1189 (9th Cir. 2008) (affirming district court's grant of habeas relief where petitioner brought habeas corpus petition to compel BOP to immediately consider transferring him to an RRC pursuant to the factors set forth in 18 U.S.C. Section 3621(b)).
Respondent argues that the pending petition should be dismissed due to petitioner's failure to exhaust his administrative remedies. Dckt. No. 13 at 4-6. Respondent notes that although petitioner states he asked the warden for a transfer to a CCC, the petition is silent as to whether petitioner exhausted all available administrative remedies. Id. at 4. In the traverse, petitioner argues that "since the Warden speaks in the capacity of the BOP . . . the Petitioner has exhausted his administrative remedies for the warden stands in stead of the BOP and Petitioner need not go any further for he will receive the same answer . . . ." Dckt. No. 15 (Traverse) at 3.
In essence, petitioner appears to be arguing that exhaustion of administrative remedies would be futile in this case because the Warden would almost certainly deny any further request for a transfer to a CCC.
The duty to exhaust administrative remedies in the context of a § 2241 petition for a writ of habeas corpus is a judicially-created duty. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Although not specifically required by statute, "as a prudential matter" federal prisoners must exhaust available judicial and administrative remedies prior to the filing of a petition seeking relief pursuant to § 2241. Ward v. Chavez, 678 F.3d 1042, *2 (9th Cir. 2012). "Because exhaustion is not required by statute, it is not jurisdictional." Brown, 895 F.2d at 535. Therefore, 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." Id.
The court's interest in maximizing judicial resources weighs in favor of deciding this case now rather than delaying its resolution. See Bozeman v. Ives, No. 2:10-cv-1883-MCE TJB (E.D. Cal. June 14, 2011). In addition, it appears that further attempts by petitioner to exhaust his administrative remedies would be futile, based on the responses he has received thus far to all of his requests for placement in an RRC. Accordingly, the court excuses petitioner's failure to exhaust his administrative remedies prior to filing his § 2241 petition as further requests by the petitioner would be futile.
Petitioner claims that the respondent is violating his rights under 18 U.S.C. § 3621(b), the "Second Chance Act," and his federal right to due process by refusing to transfer him to a CCC or RRC for the remainder of his sentence. Pet. at 1, 5-6; Traverse at 2. He asserts that he "has served a reasonable amount of time away from home and family in the BOP Correctional Facilities," and that placement in a community center and the services provided there, such as "one on one sessions with a psychiatrist," is critical for his successful re-entry into society. Pet. at 2-5. Petitioner states that "he must have help with these issues to be productive" and that he ...