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Kelly v. Director, Federal Bureau of Prisons

United States District Court, E.D. California

March 26, 2014

LEROY J. KELLY, Petitioner,


SHEILA K. OBERTO, Magistrate Judge.

Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on February 11, 2013, and on behalf of Respondent on June 24, 2013.

Pending before the Court is the Respondent's motion to dismiss the first amended petition (FAP) which was served on Petitioner on October 31, 2013. The time for filing an opposition to the motion has passed and no opposition has been filed.

In the FAP, Petitioner seeks an order directing the Federal Bureau of Prisons (BOP) to respond to Petitioner's request for a "Nunc Pro Tunc Designation Transfer" (FAP, doc. 8, 5), whereby the BOP would exercise its discretion pursuant to 18 U.S.C. § 3621 to consider designating a state institution for Petitioner to serve his federal sentence and allow him to serve this sentence concurrently with a state sentence imposed after commencement of his federal sentence.

Respondent contends the petition should be dismissed for Petitioner's failure to exhaust his administrative remedies within the BOP; if not dismissed, the petition should be denied because the relief Petitioner seeks is not possible.

I. Proceeding by a Motion to Dismiss

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy , 521 U.S. 320, 327 (1997); Jeffries v. Wood , 114 F.3d 1484, 1499 (9th Cir. 1997).

Title 28 U.S.C. § 2241 provides that writs of habeas corpus may be granted by a district court within its jurisdiction only to a prisoner whose custody is within enumerated categories, including but not limited to custody under the authority of the United States or custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(a), (c)(1) and (3).

A district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) is applicable to proceedings brought pursuant to § 2241. Habeas Rule 1(b). Habeas Rule 4 permits the filing of "an answer, motion, or other response, " and thus it authorizes the filing of a motion in lieu of an answer in response to a petition. Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments. Rule 4 confers upon the Court broad discretion to take "other action the judge may order, " including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Id.

In light of the broad language of Rule 4, motions to dismiss are appropriate in cases brought pursuant to 28 U.S.C. § 2254 that present issues of failure to state a colorable claim under federal law, O'Bremski v. Maas , 915 F.2d 418, 420-21 (9th Cir. 1990); procedural default in state court, White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989); and failure to exhaust state court remedies, Hillery v. Pulley , 533 F.Supp. 1189, 1194 n.12 (E.D.Cal. 1982). Here, a motion to dismiss the petition for failure to exhaust administrative remedies is appropriate because the facts appear in the administrative record before the Court, and the motion addresses an issue of procedural exhaustion. Accordingly, the Court will consider the motion pursuant to its authority under Habeas Rule 4.

II. Exhaustion of Administrative Remedies

In the FAP, Petitioner seeks to have the BOP consider designating him to a state institution to facilitate concurrent service of a state sentence imposed on Petitioner after he was sentenced on the offenses that resulted in his federal prison commitment.

A. Legal Standards

As a "prudential matter, " federal prisoners are generally required to exhaust available administrative remedies before bringing a habeas petition pursuant to 28 U.S.C. § 2241. Huang v. Ashcroft , 390 F.3d 1118, 1123 (9th Cir. 2004) (quoting Castro-Cortez v. INS , 239 F.3d 1037, 1047 (9th Cir. 2001)); Martinez v. Roberts , 804 F.2d 570, 571 (9th Cir. 1986). The exhaustion requirement applicable to petitions brought pursuant to § 2241 is judicially created and is not a statutory requirement; thus, a failure to exhaust does not deprive a court of jurisdiction over the controversy. Brown v. Rison , 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds, Reno v. Koray , 515 U.S. 50, 54-55 (1995). If a petitioner has not properly exhausted his or her claims, a 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 at 535.

Exhaustion may be excused if the administrative remedy is inadequate, ineffective, or if attempting to exhaust would be futile or would cause irreparable injury. Fraley v. United States Bureau of Prisons , 1 F.3d 924, 925 (9th Cir. 1993); United Farm Workers of America v. Arizona Agr. Emp. Rel. Bd. , 669 F.2d 1249, 1253 (9th Cir. 1982). Failure to exhaust administrative remedies may be excused where an official policy of the BOP requires denial of the claim. Ward v. Chavez , 678 F.3d 1042, 1045-46 (9th Cir. 2012). 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 to preclude the need for judicial review. Noriega-Lopez v. Ashcroft , 335 F.3d 874, 880-81 (9th Cir. 2003) (citing Montes v. Thornburgh , 919 F.2d 531, 537 (9th Cir. 1990)).

B. Analysis

Respondent argues that Petitioner's efforts to exhaust administrative remedies were insufficient. Petitioner's appeal from the regional director's decision, which was received by the BOP's Central Office on July 19, 2012, was rejected due to Petitioner's failure to submit with his appeal his original request (BP-9) and the warden's response (BP-09). (Pet., doc. 1, exs. D-E.) Petitioner was given fifteen (15) days from the date of the rejection notice in which to resubmit his matter in the proper form. (Id. at ex. E.) Petitioner received notice of the rejection on October 4, 2012, but Petitioner's resubmission was not received until over twenty (20) days later on October 26, 2012. (Id. at exs. E, F; pet. at 3.) The resubmission also failed to include a copy of Petitioner's BP-9 request or the BP-09 response from the warden. (Id. at ex. F.) On January 9, 2013, Petitioner received a response from the Central Office informing him his BP-11 was being rejected for his ...

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