exhaustion may be excused where it “would be futile, if the actions of the agency clearly and unambiguously violate statutory or constitutional rights, or if the administrative procedure is clearly shown to be inadequate to prevent irreparable harm”
How later courts described this case
- exhaustion may be excused where it “would be futile, if the actions of the agency clearly and unambiguously violate statutory or constitutional rights, or if the administrative procedure is clearly shown to be inadequate to prevent irreparable harm”
- exhaustion not required where petitioner demonstrates futility
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEROME M. BELL, Civil No. 1:21-cv-925
Petitioner (Judge Mariani)
v .
SCOTT FINLEY, .
Respondent .
MEMORANDUM
Petitioner Jerome Bell (“Bell”), an inmate currently incarcerated at the Federal
Correctional Institution, Schuylkill, Pennsylvania (“FCl-Schuylkill’), initiated the above-
captioned action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. (Doc. 1). Bell seeks an Order directing the Bureau of Prisons (“BOP”) to award him
earned time credits (“ETC”) pursuant to the First Step Act (“FSA”) and to immediately
release him to home confinement. (/d. at p. 7). For the reasons set forth below, the Court
will deny the habeas petition.
I. Background
Bell is serving a 100-month term of imprisonment imposed by the United States
District Court for the Northern District of New York for conspiracy to possess with intent to
distribute methamphetamine and conspiracy to distribute methamphetamine. (Doc. 10-1,
pp. 6-8). Bell’s projected release date is November 1, 2024, via good conduct time release.
(/d.).
The BOP has currently assessed Bell as having a medium risk of recidivism. (Doc.
14-1, p. 16). He was also assessed with criminogenic needs in the areas of anger/hostility,
antisocial peers, cognitions, education, medical, recreation/leisure/fitness, substance abuse,
trauma, and work, and he was previously assessed with a need for finance/poverty. (Doc.
10-1, p. 21; Doc. 14-1, pp. 15-16). During his incarceration, Bell has completed one
programming activity (“PA”)—drug education, worth fifteen hours of earned time credits. (/d.
at pp. 22-23). Bell's work details of Food Service Dining and Unit PM Orderlies are not
categorized as evidence-based recidivism reduction (“EBRR”) programs or PAs and do not
qualify him for earned time credits. (/d. at pp. 15-20, 22-23).
At the time Bell filed his habeas petition, he had filed four administrative remedies
while in BOP custody—numbers 1036676-F 1, 1076964-R1, 1076964-F1, and 1088110-F1.
at pp. 9-11). In administrative remedy numbers 1076964-R1 and 1076964-F1, Bell
sought time credits under the FSA. (/d. at pp. 10-11). In administrative remedy number
1036676-F 1, Bell complained that his points were incorrect. (/d. at p. 10). In administrative
remedy number 1088110-F 1, Bell sought referral to a Residential Reentry Center pursuant
to the Second Chance Act. (Id. at p. 11).
The updated Administrative Remedy Generalized Retrieval reveals that Bell filed
eight additional administrative remedies. (Doc. 14-1, pp. 8-14). Of those eight additional
administrative remedies, five pertain to medication requests, two relate to the CARES Act,
and one seeks release to home confinement under the First Step Act (number 1096590-
R1). (Id.).
In his § 2241 petition, Bell asserts that he is entitled to the application of earned time
credits to his sentence. (Doc. 1). He seeks immediate release to home confinement. (/d.).
Respondent contends that Bell’s § 2241 petition should be denied because: (1) Bell failed to
exhaust his administrative remedies; and (2) the petition lacks merit. (Doc. 10). For the
reasons discussed below, the Court will deny the habeas petition.
Il. Discussion
A. — Exhaustion of Administrative Review
Despite the absence of a statutory exhaustion requirement attached to § 2241,
courts have consistently required a petitioner to exhaust administrative remedies prior to
bringing a habeas claim under § 2241. Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000);
Moscato v. Federal 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.” Moscato, 98 F.3d at 761-62
(citing Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981) (per curiam)). 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. However, exhaustion 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) (exhaustion not required where petitioner demonstrates
futility); Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be
excused where it “would be futile, if the actions of the agency clearly and unambiguously
violate statutory or constitutional rights, or if the administrative procedure is clearly shown to
be inadequate to prevent irreparable harm”); Carling v. Peters, No. 00-2958, 2000 WL
1022959, at *2 (E.D. Pa. July 10, 2000) (exhaustion not required where delay would subject
petitioner to “irreparable injury’).
The BOP has established a multi-tier system whereby a federal prisoner may seek
formal review of any aspect of his imprisonment. 28 C.F.R. §§ 542.10-542.19 (2005). If an
issue raised by the inmate cannot be resolved through this administrative remedy system,
the BOP will refer the inmate to appropriate statutorily mandated procedures. 28 C.F.R. §
542.10(c). The system first requires an inmate to present their complaint to staff before
filing a request for administrative relief, which staff shall attempt to informally resolve. 28
C.F.R. § 542.13(a). If informal resolution is unsuccessful, an inmate maay file a formal
written complaint to the Warden, on the appropriate form, within twenty calendar days of the
date of the event or occurrence and the Warden shall provide a response within twenty
calendar days. 28 C.F.R. §§ 542.14, 542.18. If the inmate is dissatisfied with the Warden's
response, he may file an appeal to the Regional Director within twenty calendar days. 28
C.F.R. § 542.15(a). The Regional Director has thirty calendar days to respond. 28 C.F.R. §
542.18. Finally, if the inmate is dissatisfied with the Regional Director's response, that
decision may be appealed to the BOP’s General Counsel at Central Office within thirty
calendar days from the date of the Regional Director's response. 28 C.F.R. § 542.15(a).
No administrative remedy appeal is considered fully exhausted until reviewed by the BOP’s
Central Office. 28 C.F.R. § 542.15(a).
The BOP maintains a database known as the SENTRY Inmate Management System
(“SENTRY”). In the ordinary course of business, computerized indexes of all formal
administrative remedies filed by inmates are maintained by the Institution, Regional, and
Central Offices. SENTRY generates a report titled “Administrative Remedy Generalized
Retrieval” which allows codes to be entered to identify the reason or reasons for rejecting a
request for administrative relief.
Bell's Administrative Remedy Generalized Retrieval report reveals that he failed to
properly exhaust the claims in the instant habeas petition. (Doc. 10-1, pp. 9-11, Doc. 14-1,
pp. 8-14). The record reflects that Bell filed a total of twelve administrative remedies. (Doc.
14-1, pp. 8-14). The relevant administrative remedies are addressed below.
The record before the Court indicates that on March 31, 2021, Bell submitted
Administrative Remedy Number 1076964-R1 directly with the Regional Director, claiming
the issue was sensitive and requesting First Step Act Time credits. (Doc. 10-1, p. 10). On
April 14, 2021, the filing was rejected as not sensitive, and Bell was advised to first file at
the institution level. (/d.). On May 19, 2021, Bell filed Administrative Remedy Number
1076964-F] at the institution. (/d. at p. 11). On May 21, 2021, the filing was closed with an
explanation. (/d.). Bell did not appeal.
On September 13, 2021, Bell submitted an Administrative Remedy Number
1096590-R1 seeking release to home confinement under the First Step Act. (Doc. 14-1, p.
12). On October 5, 2021, the administrative remedy was rejected with an explanation. (/d.).
Bell did not appeal.
Bell does not dispute that he commenced the instant action without first exhausting
the BOP's administrative remedy procedure. (Doc. 1, p. 2). Even if Bell thought pursuit of
his administrative remedies would be futile, “[clourts 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.” Ross v. Martinez, No. 4:09-cv-1770, 2009 WL 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.” Kurti v. White, No. 1:19-cv-2109, 2020
WL 2063871, at *3 (M.D. Pa. Apr. 29, 2020). In Goodman v. Ortiz, No. 20-7582 (RMB),
2020 WL 5015613 (D.N.J. Aug. 25, 2020), the parties did not dispute that the inmate-
petitioner had successfully participated in several programming activities 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. However, the instant case not only
involves when Bell is eligible for the application of any ETC, but also involves a dispute as
to the specific number of ETCs earned by Bell, as his ETCs have not yet been fully
calculated. The latter issue is 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 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, Bell’s § 2241 petition must be
dismissed for failure to exhaust his administrative remedies. To hold otherwise would
frustrate the purposes of the exhaustion doctrine by allowing Bell to invoke the judicial
process despite failing to complete administrative review. Nevertheless, the Court will
address the merits of his petition below.
B. Merits of the Habeas 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 evidence-based
recidivism reduction 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 assigned to each inmate
based on the inmate’s specific criminogenic needs.” 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. 9 § 3621(h)). Moreover, the FSA provides
that EBRRs and PAs are to be nhased in over a period of two (2) years, from January 15,
2020 to January 15, 2022. See 18 U.S.C. § 3621(h)(2).
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.” Hare v. Ortiz, No. 20-14093, 2021 WL 391280, at *9 (D.N.J. Feb. 4, 2021).
Respondent submitted the Declaration of Jennifer Knepper, BOP Attorney Advisor, to
explain Bell’s assignment to EBRR programs and PAs pursuant to the FSA. (Doc. 10-1, pp.
3-5; Doc. 14-1, pp. 3-4). The BOP has assessed Bell as currently having a medium risk of
recidivism and having criminogenic needs of anger/hostility, antisocial peers, cognitions,
education, medical, recreation/leisure/fitness, substance abuse, trauma, and work, and he
was previously assessed with a need for finance/poverty. (/d.). During his incarceration,
Bell has completed one programming activity—drug education. (Doc. 10-1, pp. 22-23).
This program is worth fifteen hours of ETCs.
Even if Bell completes EBRR programs and PAs that correspond with an identified
need, the BOP may not apply credits for successfully completed programs until Bell has
received a minimum or low risk PATTERN score for two consecutive assessments. See 18
U.S.C. § 3624(g)(1)(D)(i); 28 C.F.R. § 523.42(c)(2)(i)-(ii). On April 28, 2021, the BOP
reassessed Bell’s risk recidivism and increased it from medium to high. (Doc. 14-1, p. 4 6;
Doc. 10-1, p. 21; Doc. 14-1, p. 16). On February 22, 2022, the BOP again reassesseci his
risk recidivism and reduced it from high to medium. (Doc. 14-1, p. 15). Because Bell does
not have a minimum or low risk PATTERN score for two consecutive assessments, the BOP
may not apply credits for successfully completed programs. See 18 U.S.C. §
10
3624(g)(1)(D)(i); 28 C.F.R. § 523.42(c)(2)(i)-(ii). Thus, the Court cannot grant Bell the relief
he seeks.
Conctusion
Based on the foregoing, the petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 will be denied. (Doc. 1). A separate Order shall issue.
4 WALdLA
Robert D. Mariani
United States District Judge
Dated: May_7 , 2022
11