Opinion

Rehfuss v. Spaulding

Court
District Court, M.D. Pennsylvania
Filed
Jun 29, 2021
Cited by
0 cases
Authority
More cited than 29.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SETH REHFUSS, :

Petitioner, :

: No. 1:21-cv-00677

v. :

: (Judge Kane)

STEPHEN SPAULDING, :

Respondent :

MEMORANDUM

On April 12, 2021, pro se Petitioner Seth Rehfuss (“Petitioner”), who is currently

incarcerated at the Federal Prison Camp in Lewisburg, Pennsylvania (“FPC Lewisburg”),

initiated the above-captioned action by filing a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 (Doc. No. 1) and a memorandum in support thereof (Doc. No. 2). Petitioner seeks

an Order directing the Bureau of Prisons (“BOP”) to award him 189 days of earned time credit

(“ETC”) pursuant to the First Step Act (“FSA”) and to immediately release him to home

confinement.1 (Doc. No. 1 at 8.) Petitioner paid the requisite filing fee on April 14, 2021. (Doc.

No. 5.) Following an Order to show cause (Doc. No. 7), Respondent filed a response on May 3,

2021 (Doc. No. 8). After receiving a short extension of time (Doc. Nos. 9, 10), Petitioner filed

his traverse on May 20, 2021 (Doc. No. 11). Accordingly, Petitioner’s § 2241 petition is ripe for

disposition.

1 Petitioner claims entitlement to 189 and 185 days of ETC at various points in his submissions.

(Doc. Nos. 1 at 8; 2 at 4.) Respondent states that “[t]he fate of the Petitioner is the same

regardless of which number he uses, but for purposes of this Response, Respondent uses the

greater relief requested.” (Doc. No. 8 at 1.) The Court takes the same approach as Respondent.

I. BACKGROUND

Petitioner is serving a fifty (50)-month term of incarceration imposed by the United

States District Court for the District of New Jersey after Petitioner pled guilty to fraud and

conspiracy to commit healthcare fraud, in violation of 18 U.S.C. §§ 286 and 371. (Doc. Nos. 8-2

at 2; 8-3.) Petitioner’s current projected release date is January 26, 2022. (Doc. No. 8-2 at 2.)

The BOP has assessed Petitioner as having a minimum risk of recidivism and having

anger/hostility and recreation/leisure/fitness criminogenic needs. (Doc. No. 8-6 at 12.)

Petitioner was not assessed as having cognition, mental health, or work criminogenic needs.

(Id.) Moreover, Petitioner’s sentencing court recommended that he complete substance abuse

treatment. (Doc. No. 8-5.) During his incarceration, Petitioner has completed various evidence-

based recidivism reduction (“EBRR”) programs and programming activities (“PA”), including

the Residential Drug Abuse Treatment Program (“RDAP”), Narcotics Anonymous, Alcoholics

Anonymous, Emotional Self-Regulation, the Arthritis Foundation Walk, and Brain Health as

You Age. (Doc. No. 8-6 at 2.) Petitioner is on the waiting list to complete Anger Management.

(Id. at 11.) Petitioner worked in the FCP Lewisburg Plumbing Shop from July 26, 2019 until

August 26, 2020. (Doc. No. 8-2 at 9.) He has been assigned to the evening Food Service work

detail from August 26, 2020 until the present. (Id.)

RDAP is an EBRR that corresponds to a substance abuse criminogenic need, and an

inmate who successfully completes RDAP is entitled to 500 hours of ETC. (Id. at 5.) Alcoholics

Anonymous and Narcotics Anonymous are PAs that correspond to a substance abuse

criminogenic need, and the successful completion of each entitles an inmate to 50 hours of ECT.

(Id. at 7-8.) The Arthritis Foundation Walk and Brain Health as You Age are PAs that

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correspond to a recreation/leisure/fitness criminogenic need, and the successful completion of

each entitles an inmate to six (6) and five (5) hours of ECT, respectively. (Id. at 7.) Emotional

Self-Regulation is an EBRR that corresponds to cognition and mental health criminogenic needs.

(Id. at 6.)

On March 25, 2020, Petitioner received a Summary Re-Entry Plan recommending that he

receive a minimum of 120 days in a halfway house. (Doc. No. 8-6 at 15.)2 On June 3, 2020,

Case Management Coordinator Reibsome referred Petitioner for halfway house placement to

begin on July 31, 2021, 179 days before his January 26, 2022 projected release date. (Id. at 3,

17-18.) This placement date “takes into consideration the recommendation for a minimum of

120 days of halfway house placement and thirty days of [ETC] under the [FSA].” (Id. at 3.)

Based on availability, Petitioner was given a halfway house report date of August 3, 2021. (Id.)

In his § 2241 petition, Petitioner asks that the Court direct the BOP to give him 189 days

of ETC and that these days “be applied to Home Confinement and thus be put in for immediate

release rather than the August 3, 2021 date that the BOP has given him without his ETC.” (Doc.

No. 2 at 1.) Petitioner asserts that he is entitled to ETC for being an essential worker during the

COVID-19 lockdown. (Id. at 2.) Petitioner also maintains that he is entitled to ETC for

completing Anger Management. (Id.) Petitioner admits that he did not exhaust his

administrative remedies but asserts that exhaustion is futile and that the “statutory construction”

exception applies. (Id. at 3.)

2 In his § 2241 petition, Petitioner contends that staff recommended that he received 365 days of

halfway house placement. (Doc. No. 2 at 2.) He attaches a document purporting to show this

recommendation. (Doc. No. 1-1 at 11.) Case Management Coordinator Reibsome, however,

avers that the page showing 365 days of placement does not appear in Petitioner’s BOP file.

(Doc. No. 8-6 at 3.)

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II. DISCUSSION

Respondent asserts that Petitioner’s § 2241 petition should be denied because: (1)

Petitioner failed to exhaust his administrative remedies; and (2) Petitioner has received all ETC

that he is eligible to earn under the FSA. (Doc. No. 8 at 6.) The Court considers each argument

in turn.

A. Exhaustion of Administrative Remedies

While § 2241 does not contain an explicit statutory exhaustion requirement, the United

States Court of Appeals for the Third Circuit has consistently required a petitioner to exhaust his

administrative remedies before filing a § 2241 petition. See Moscato v. Fed. Bureau of Prisons,

98 F.3d 757, 760 (3d Cir. 1996). Exhaustion is required “for three reasons: (1) allowing the

appropriate agency to develop a factual record and apply its expertise facilitates judicial review;

(2) permitting agencies to grant the relief requested conserves judicial resources; and (3)

providing agencies the opportunity to correct their own errors fosters administrative autonomy.”

See id. at 761-62 (citing Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981)). Thus, “a

federal prisoner who . . . fails to exhaust his administrative remedies because of a procedural

default, and subsequently finds closed all additional avenues of administrative remedy, cannot

secure judicial review of his habeas claim absent a showing of cause and prejudice.” See id. at

762. Exhaustion, however, is not required when it would not promote these goals, such as when

exhaustion would be futile. See, e.g., Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998).

The BOP has a multi-step administrative remedy program allowing an inmate “to seek

formal review of an issue relating to any aspect of his/her own confinement.” See 28 C.F.R.

§ 542.10(a). First, an inmate should attempt inform resolution of the issue with the appropriate

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staff member. See id. § 542.13(b). If informal resolution is unsuccessful, the inmate may submit

a formal written grievance, using the BP-9 form, to the Warden within twenty (20) calendar days

“following the date on which the basis for the Request occurred.” See id. § 542.14(a). The

Warden is to respond to the request within twenty (20) calendar days. See id. § 542.18. An

inmate dissatisfied with the Warden’s response may appeal, using the BP-10 form, “to the

appropriate Regional Director within 20 calendar days of the date the Warden signed the

response.” See id. § 542.15(a). Finally, an inmate may appeal the Regional Director’s response,

using the BP-11 form, to the BOP’s General Counsel “within 30 calendar days of the date the

Regional Director signed the response.” See id.

Petitioner concedes that he did not exhaust his administrative remedies prior to filing his

§ 2241 petition. (Doc. No. 2 at 2-3.) Petitioner did submit an Inmate Request to Staff, asking for

his ETC to be calculated and to be considered for home confinement on the “next available

date.” (Doc. No. 1-1 at 27.) Petitioner’s administrative remedy record, however, indicates that

Petitioner has not filed a single former administrative remedy regarding the calculation of his

ETC. (Doc. No. 8-2 at 7-8.) Rather, Petitioner submitted an administrative remedy seeking

compassionate release on July 10, 2020. (Id. at 8.)

Petitioner suggests that exhaustion should be excused because it is futile and because the

“statutory construction exception” to administrative exhaustion applies. (Doc. No. 2 at 3.)

However, even if Petitioner thought pursuit of his administrative remedies would be futile,

“[c]ourts in the Middle District of Pennsylvania have consistently held that ‘exhaustion of

administrative remedies is not rendered futile simply because a prisoner anticipates he will be

unsuccessful in his administrative appeals.’” See Ross v. Martinez, No. 4:09-cv-1770, 2009 WL

5

4573686, at *3 (M.D. Pa. Dec. 1, 2009) (quoting Malvestuto v. Martinez, No. 1:09-cv-1339,

2009 WL 2876883, at *3 (M.D. Pa. Sept. 1, 2009)); see also Suarez-Sanchez v. Lane, No. 4:18-

cv-1431, 2019 WL 1645231, at *3-4 (M.D. Pa. Mar. 5, 2019) (concluding that the petitioner’s

§ 2241 petition was subject to dismissal for failure to exhaust because the petitioner “never fully

and properly appealed [his] grievance because he apparently deemed the grievance process to be

a waste of time”), report and recommendation adopted, 2019 WL 1620339 (M.D. Pa. Apr. 16,

2019).

The Court recognizes that administrative exhaustion is not required if “the issue

presented only pertains to statutory construction.” See Kurti v. White, No. 1:19-cv-2109, 2020

WL 2063871, at *3 (M.D. Pa. Apr. 29, 2020). In support of his argument, Petitioner cites to

Goodman v. Ortiz, No. 20-7582 (RMB), 2020 WL 5015613 (D.N.J. Aug. 25, 2020). In

Goodman, the parties did not dispute that the inmate-petitioner had successfully participated in

several PAs that met the requirements of the FSA or had earned a specific number of ETC. See

Goodman, 2020 WL 5015613, at *2. Instead, the court considered whether the FSA required

that the ETC earned by the petitioner be applied before January 15, 2022. See id. The court

concluded that the inmate-petitioner was exempt from the administrative exhaustion requirement

because the matter “present[ed] a narrow dispute of statutory construction” and because “habeas

relief should be granted.” See id. at *3. The instant case, however, involves Petitioner’s

eligibility for ETC based upon his participation in various EBRRs and PAs during his

incarceration. The parties do not agree on the specific number of ETCs earned by Petitioner.

These issues are unrelated to statutory construction and, therefore, the exhaustion requirement

cannot be excused. See Kurti, 2020 WL 2063871, at *3 (noting that the petitioner “has clearly

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failed to exhaust administrative remedies with respect to the time credit he requests”); see also

Cohen v. United States, No. 20-cv-10833 (JGK), 2021 WL 1549917, at *4 (S.D.N.Y. Apr. 20,

2021) (concluding that the inmate-petitioner was not excused from exhausting because the

parties disputed his “eligibility for, participation in, and applicability of the various programs he

claims to have completed to any potential time credits under the FSA”); Maggio v. Joyner, No.

7:21-21-DCR, 2021 WL 1804915, at *1-2 (E.D. Ky. Mar. 25, 2021) (concluding same to

determine that the inmate-petitioner’s § 2241 petition was subject to dismissal for failure to

exhaust). Thus, the Court agrees with Respondent that Petitioner’s § 2241 petition must be

dismissed for failure to exhaust his administrative remedies. Nevertheless, the Court will

address the merits of his petition below.

B. Merits of Petitioner’s § 2241 Petition

Under the FSA, the Attorney General was charged with development and release of a

Risk and Needs Assessment System (“the System”) within 210 days of December 21, 2018, the

date on which the FSA was enacted. See 18 U.S.C. § 3632. The System is to be used for: (1)

determining an inmate’s recidivism risk; (2) assessing an inmate’s risk of violent or serious

misconduct; (3) determining the type and amount of EBRR programming appropriate for each

inmate; (4) periodically assessing an inmate’s recidivism risk; (4) reassigning an inmate to

appropriate EBRRs and PAs; (5) determining when to provide incentives and rewards for

successful participation in EBRRs and PAs; and (6) determining when the inmate is ready to

transfer to pre-release custody or supervised release. See id. § 3632(a). Moreover, the System

provides guidance on the “type, amount, and intensity of EBRR programs and PAs to be

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assigned to each inmate based on the inmate’s specific criminogenic needs.” See Kurti, 2020

WL 2063871, at *4 (citing 18 U.S.C. § 3632(b)).

The FSA allows eligible inmates who successfully complete EBRRs or PAs to receive

earned time credits to be applied toward time in pre-release custody or supervised release. See

18 U.S.C. § 3632(d)(4)(A). An inmate may earn ten (10) days of credit for every thirty (30) days

of successful participation. See id. Moreover, eligible inmates who have been assessed at a

minimum or low risk of recidivism who do not increase their risk of recidivism over two (2)

consecutive assessments may earn five (5) days of time credit for every thirty (30) days of

successful participation. See id. However, an inmate may not earn time credits for EBRR

programs completed prior to the enactment of the FSA. See id. § 3632(d)(4)(B)(i). The

Attorney General was allowed 210 days after the FSA was enacted to develop and publish the

System, which the BOP then used as a guide to implement the EBRRs and PAs. See id.

§ 3632(a). The Attorney General published the System on July 19, 2019, and the BOP then had

180 days, or until January 15, 2020, to implement the System, complete assessments, and begin

to assign prisoners to appropriate EBRRs. See Kurti, 2020 WL 2063871, at *4 (citing 18 U.S.C.

§ 3621(h)). This Court has previously held that inmates cannot earn time credits for EBRRs and

PAs completed before January 15, 2020. See id. at *5 (citing 18 U.S.C. § 3632(d)(4)(B)(i)).3

As an initial matter, Petitioner asserts that the BOP is acting contrary to the FSA by

taking the position that “a prisoner can earn no applicable benefit for programming prior to

January 15, 2022.” (Doc. No. 2 at 3.) Petitioner’s argument, however, clearly lacks merit. The

3 The Court recognizes that the United States District Court for the District of New Jersey has

concluded that inmates are eligible to earn ETCs for EBRRs and PAs completed on or after

December 21, 2018. See Hare v. Ortiz, No. 20-14093, 2021 WL 391280, at *7 (D.N.J. Feb. 4,

2021). Hare, however, is not binding on this Court.

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BOP must “phase in” its implementation of the System as to all prisoners within two (2) years of

its implementation. See 18 U.S.C. §§ 3621(h), 3632(a). Accordingly, because the BOP had until

January 15, 2020 to implement the System, the outer-most date for it to be fully implemented as

to all prisoners is January 15, 2022. However, as noted supra, the System has already been

implemented as to Petitioner, and he has already been credited with thirty (30) ETCs pursuant to

the FSA. (Doc. No. 8-6 at 3, 17-18.)

Petitioner also is not entitled to the 189 days of ETC that he seeks. ETC credits “are

earned only when an inmate successfully completes one of the BOP-approved EBRR programs

or PAs related to one of the particular needs assigned to that inmate.” See Hare v. Ortiz, No. 20-

14093, 2021 WL 391280, at *9 (D.N.J. Feb. 4, 2021). The BOP has assessed Petitioner as

having a minimum risk of recidivism and having anger/hostility and recreation/leisure/fitness

criminogenic needs. (Doc. No. 8-6 at 12.) Petitioner was not assessed as having cognition,

mental health, or work criminogenic needs. (Id.) Moreover, Petitioner’s sentencing court

recommended that he complete substance abuse treatment. (Doc. No. 8-5.)

As an initial matter, contrary to Petitioner’s assertion, he has not completed Anger

Management because he is on the waiting list for that program. (Doc. No. 8-6 at 11.) Petitioner

is not entitled to ETC for a program he has not yet successfully completed. See 18 U.S.C.

§ 3632(d).4 Moreover, while Petitioner has completed Emotional Self-Regulation (Doc. No. 8-6

at 2), that program does not correspond to a need Petitioner was assessed as having. Emotional

4 In his traverse, Petitioner has included a copy of a certificate indicating that he completed the

Anger Management Group on December 4, 2019. (Doc. No. 11 at 35.) Even assuming that this

group is a qualified EBRR or PA, Petitioner would not be entitled to ETCs for its completion

because he completed it before January 15, 2020. See Kurti, 2020 WL 2063871, at *5 (citing 18

U.S.C. § 3632(d)(4)(B)(i)).

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Self-Regulation is an EBRR that corresponds only to cognition and mental health criminogenic

needs. (Id. at 6.) Likewise, Petitioner cannot earn ETC for his work details because he has not

been assessed as having a work criminogenic need. Even if Petitioner had been assessed with a

work criminogenic need, his work details in the Plumbing Shop and Food Service do not qualify

as EBRRs or PAs. (Doc. No. 8-6 at 4-9.) Petitioner, therefore, is not entitled to ETCs for his

work details and for completing Emotional Self-Regulation. See Hare v. Ortiz, No. 20-14093,

2021 WL 1346253, at *1 (D.N.J. Apr. 12, 2021) (noting that “[o]nly those EBRRs and PAs

described in the First Step Act Approved Programs Guide qualify for Time Credits under the

FSA”); Butler v. Bradley, No. CV 20-11211 DMG (RAO), 2021 WL 945252, at *4 (C.D. Cal.

Feb. 22, 2021) (noting that “[i]f an inmate could accrue FSA credits by participating in any type

of recidivism-reduction program or activity, the statutory language instructing the BOP to

establish and implement an individualized risk and needs assessment system, 18 U.S.C.

§ 3632(a), (b), would be superfluous”).

Petitioner has received 611 hours of EBRR and PA completion for completing RDAP,

Alcoholics Anonymous, Narcotics Anonymous, Arthritis Foundation Walk, and Brain Health as

You Age. (Doc. No. 8-6 at 3, 4-9.) The FSA, however, permits the BOP to award ETC only in

terms of days. See 18 U.S.C. § 3632(d)(4)(A)(i), (ii). Under the BOP’s regulations, a day “is

considered eight hours for purposes of calculating credit under the FSA.” (Doc. No. 8-6 at 3.)

Therefore, “an inmate is entitled to ten days of creditable time for every 240 hours of

programming completed. An inmate with a minimum recidivism risk is eligible for fifteen days

for every 240 hours of completed programming.” (Id.) In the instant case, Petitioner’s 611

hours equates to two (2) 240-hours periods because the “FSA does not provide for partial ETC

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awards.” (Doc. No. 8 at 15 n.9.) Because Petitioner has been assessed as having a minimum

risk for recidivism, he has received two (2) 15-day blocks of ETC for a total of thirty (30) ETCs.

The record reflects that the BOP applied these ETCs to increase the amount of Petitioner’s

halfway house time from 120 days, as initially recommended, to 179 days. (Doc. No. 8-6 at 3,

17-18.) Petitioner has received the ETC for which he is eligible, and those credits have been

applied to determine the report date for his halfway house placement. His § 2241 petition will,

therefore, be denied.

III. CONCLUSION

For the foregoing reasons, the Court will deny Petitioner’s petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) An appropriate Order follows.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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