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Bristow v. Johnson

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

July 6, 2015

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

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION

JOSEPHINE L. STATON, District Judge.

Lonny Lee Bristow ("petitioner"), a federal prisoner currently incarcerated at the Federal Correctional Institution in Adelanto, California, initiated this action on April 15, 2015, by filing 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..." ("Memorandum" or "Mem.").[1] (Dkt. Nos. 1, 2). Petitioner claims that he did not receive an individualized review for placement in a Residential Reentry Center ("RRC") (Mem. at 4-6), and that any attempt to exhaust his administrative remedies would be futile. (Mem. at 1 to 3.1). Petitioner also filed a Motion to Expedite Case ("Motion to Expedite"), which the Magistrate Judge denied on May 5, 2015.[2] (Dkt. No. 4). On April 22, 2015, the Magistrate Judge ordered petitioner to show cause ("Order to Show Cause") no later than June 19, 2015, why the Petition should not be dismissed for failure to exhaust administrative remedies, and/or for lack of subject matter jurisdiction based on the fact that to the extent petitioner is challenging the warden's individualized determination as to the amount of time that petitioner should spend in RRC placement, the Court lacks jurisdiction over any such challenge. (Dkt. No. 6 at 4-8; Dkt. No. 15 (granting petitioner's request for an extension of time to respond to the Order to Show Cause)). As of the date of this Order, petitioner has not filed a response to the Order to Show Cause and his time to do so has expired.

I.

BACKGROUND

On April 19, 2013, in the United States 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, [3] 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 to 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).

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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