Opinion
CV 04-634-HA.
September 15, 2004
ORDER
Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the petition (Doc. #1) is DENIED without prejudice.
FACTUAL BACKGROUND
Petitioner is a federal inmate being housed by the Bureau of Prisons (BOP) at the Federal Correctional Institution (FCI Sheridan) in Sheridan, Oregon. Petitioner is in custody pursuant to 1998 convictions of Distribution of Cocaine and Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 841(B)(1)(C), and Unlawful Possession of a Firearm in violation of 18 U.S.C. § 922 (g)(1) and 924(A)(2). He is serving concurrent sentences of 120 months to be followed by a five year term of supervised release. Petitioner's projected release date is October 31, 2006, via Good Conduct Time Release.
In January 1999, petitioner was accepted into the BOP's residential substance abuse treatment program (DAP), but was denied eligibility for the sentence reduction based on a two-point sentencing enhancement because he possessed a firearm during the commission of his offense. Nonetheless, petitioner elected to remain on the DAP wait list.
In June 2000, petitioner declined further participation in DAP, effectively removing himself from the wait list. In March 2003, petitioner renewed his application for DAP, which was accepted, and he was again placed on the wait list. The BOP informed petitioner that although he would be placed on the wait list, he was still ineligible for a sentence reduction.
On May 7, 2004, petitioner filed this petition challenging the BOP's revocation of his eligibility for reduction of his period of custody under 18 U.S.C. § 3621(e). On May 14, 2004, petitioner filed an administrative remedy request, which was denied. On May 24, 2004, Judge Hogan sua sponte ordered the petition dismissed for failure to exhaust administrative remedies. Judge Hogan explained that although petitioner alleged that he was in the process of appealing the denial through the administrative appeals process, he must exhaust the administrative remedies made available by the BOP prior to bringing the petition.
On June 3, 2004, petitioner filed a Motion for Reconsideration, arguing that exhaustion of administrative remedies was not a jurisdictional bar in Section 2241 cases, and moreover, that the court lacked the authority to sua sponte dismiss the petition. Judge Hogan granted petitioner's Motion for Reconsideration and issued a Scheduling Order on June 15, 2004, ordering petitioner to prove that he had exhausted all available administrative remedies.
DISCUSSION
In creating the incentive-based program under Section 3621(e), Congress expressly prohibited the BOP from considering a sentence reduction for prisoners not convicted of a "nonviolent offense." A nonviolent offense is defined as any crime that does not fall within the definition of "crime of violence." See 18 U.S.C. § 924(c)(3); 28 C.F.R. § 550.58.
The BOP has established an administrative remedy procedure through which an inmate may seek formal review of any complaint regarding any aspect of the inmate's imprisonment, including allegations that the BOP has improperly revoked eligibility for a reduction of the inmate's period of custody under Section 3621(e). See 28 C.F.R. § 542.10. An inmate must first raise his or her complaint to the warden of the institution in which he or she is confined. If the inmate disputes the warden's decision, the inmate may appeal to the Regional Director and the Central Office of the BOP. See 28 C.F.R. 542 et seq.
It is well settled that exhaustion of administrative remedies in Section 2241 cases is not jurisdictional. See, e.g., Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). However, although Section 2241 does not require petitioners to exhaust administrative appeals before filing habeas petitions, the Ninth Circuit "require[s], as a prudential matter, that habeas petitioners exhaust available judicial . . . remedies before seeking relief. . . ." Id.
This court has repeatedly held that absent evidence of futility or irreparable harm, a petitioner must exhaust the administrative remedies made available by the BOP prior to bringing a petition for a writ of habeas corpus in federal courts. See, e.g., Seehausen v. Van Buren, 243 F.Supp.2d 1165, 1167 (D. Or. 2002) ("The exhaustion requirement as applied to federal prisoners is not jurisdictional, but its importance is well established."); Hines v. Crabtree, 935 F.Supp. 1104, 1107-08 (D. Or. 1996) (this court excused the exhaustion requirement, finding that it would be futile for the petitioner to pursue his administrative remedies because the petitioner's conviction was categorized as a "crime of violence" and his projected release date was less than a year from the date of the court's ruling); see also Dougherty v. Crabtree, 812 F.Supp. 1089, 1091 (D. Or. 1991) (the general rule is that a petitioner must exhaust all administrative remedies "except when unique circumstances require its waiver").
Although petitioner concedes that he has not exhausted the BOP's administrative processes, he argues that this court should waive the exhaustion requirement in this case based on the court's prior rulings in Hicks v. Hood, 203 F.Supp.2d 379 (D. Or. 2002), and Benard v. Daniels, 2004 WL 1197774 (D. Or. 2004). However, both Hicks and Benard are distinguishable from the instant action. In Hicks, the court waived the exhaustion requirement and proceeded to analyze the case on the merits because petitioner had "done everything in his power to expedite proceedings and pursue his administrative remedies." 203 F.Supp.2d at 382. In addition, the petitioner's scheduled release date was less than four months from the date of the court's decision. Id. at 381. In Benard, the petitioner filed two rounds of administrative appeals. At the date of the court's decision, the second round of appeals had not been exhausted. However, the court found that the petitioner did not need to exhaust his administrative remedies twice before seeking review in federal court. 2004 WL 1197774, at *5.
In this case, petitioner did not submit any administrative remedy requests before filing this action and still has not completed the administrative appeals process through the BOP's Central Office. Petitioner was convicted of a nonviolent offense and is not due to be released until October 2006, more than two years from the date of this Order. Therefore, the facts that supported a finding of futility and irreparable harm in Hines, Hicks, and Benard are not present here. Accordingly, the court finds no reason to depart from the general requirement that a petitioner exhaust all available administrative remedies prior to bringing a petition for writ of habeas corpus in federal court.
CONCLUSION
Petitioner's petition for a writ of habeas relief (Doc. #1) is DENIED without prejudice. Petitioner may re-file his petition after he has exhausted all available administrative remedies.
IT IS SO ORDERED.