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Bristow v. Johnson

United States District Court, C.D. California, Western Division

April 22, 2015

LONNY LEE BRISTOW, Petitioner,
v.
CALVIN JOHNSON, Warden, Respondent.

ORDER TO SHOW CAUSE RE: DISMISSAL OF PETITION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND/OR FOR LACK OF SUBJECT MATTER JURISDICTION

PAUL L. ABRAMS, Magistrate Judge.

On April 15, 2015, petitioner, a federal prisoner currently incarcerated at the Federal Correctional Institution in Adelanto, California, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241 ("Petition" or "Pet."), with an accompanying "Memorandum in Support of Petition..." ("Mem."). (Dkt. Nos. 1, 2). Petitioner also filed a Motion to Expedite Case ("Motion").[1] (Dkt. No. 4).

I.

BACKGROUND

On April 19, 2013, in the district court for the Northern District of Ohio, Eastern Division, case number CR 13-148, petitioner pleaded guilty to six counts of bomb threats. (Pet. at 2). Petitioner's projected release date is November 30, 2016. (Mem. at 3).

Petitioner states that he requested placement in an RRC for the last twelve months of his sentence, i.e., from November 30, 2015, to November 30, 2016, and instead received only six months, commencing on May 30, 2016. (See Mot. at 1; Mem. at 2). Petitioner claims that he did not receive individualized consideration for placement in an RRC as required by 18 U.S.C. § 3624. (Mem. at 4-6). He claims that had he received individualized consideration, [2] he would have been found eligible to be placed in an RRC as of November 30, 2015. (Mot. at 3).

Petitioner admits that he has not exhausted his administrative remedies, but contends that requiring him to do so would be futile. (Mem. at 2-3.1). He argues that the Bureau of Prisons ("BOP"), "either by policy or memo, " has directed respondent "to approve inmates for no more than six (6) months halfway house time." (Mem. at 2). He also argues that there is insufficient time between now and November 30, 2015, to exhaust his administrative remedies "without mooting this case."[3] (Mem. at 3).

II.

STATUTORY FRAMEWORK

The BOP has the authority to designate the location of an inmate's imprisonment. Specifically, under 18 U.S.C. § 3621(b), the BOP has discretion to place an inmate in an available penal or correctional facility and to direct the transfer of an inmate "at any time." Rodriguez v. Smith , 541 F.3d 1180, 1182, 1185 (9th Cir. 2008).

"Two statutory provisions govern the BOP's authority to place inmates in its custody in RRCs: 18 U.S.C. §§ 3621(b) and 3624(c)." Sacora v. Thomas , 628 F.3d 1059, 1061-62 (9th Cir. 2010). Section 3621 "governs the BOP's authority in cases where a prisoner who has more than a year left to serve of his or her prison sentence requests a transfer to such a facility." Id. at 1062 (footnote omitted). When determining which facility is suitable, the BOP must consider the following five factors:

(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of ...

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