Gordon v. Warden

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ROMAINE GORDON, :

Petitioner : CIVIL ACTION NO. 3:24-1322

v. : (JUDGE MANNION)

WARDEN, FCI ALLENWOOD :

LOW,

:

Respondent

MEMORANDUM

Pro se Petitioner Romaine Gordon (“Gordon”), who is incarcerated at

FCI Allenwood Low, initiated this action by filing a petition for a writ of habeas

corpus under 28 U.S.C. §2241, alleging that the Federal Bureau of Prisons

(“BOP”) improperly denied his request for Residential Reentry Center/Home

Confinement (“RRC/HC”) placement. (Doc. 1.) He has also filed a motion for

expedited consideration of his petition and an affidavit in support of the

motion. (Docs. 4, 5.) For the following reasons, the Court will dismiss the

habeas petition without prejudice based on Gordon’s failure to exhaust the

BOP’s available administrative remedies and deny the motion for expedited

consideration.

I. BACKGROUND

Gordon is serving a sixty-three (63)-month term of imprisonment

following his guilty plea to one count of attempted wire fraud (18 U.S.C.

§§1343, 1349) and sentencing in the United States District Court for the

District of South Carolina. (Id. at 1); see also J. at 1–2, United States v.

Gordon, No. 4:21-cr-293 (D.S.C. Apr. 27, 2022). He asserts that his

projected release date is November 29, 2024. See (Doc. 1 at 3). But see

Bureau of Prisons Inmate Locator, Federal Bureau of Prisons,

https://www.bop.gov/inmateloc/ (last visited August 21, 2024) (stating

Gordon’s release date is January 18, 2025).

In his Section 2241 habeas petition, Gordon alleges that the BOP

violated his equal protection rights under the Fifth Amendment to the United

States Constitution by denying his request for RRC/HC placement. (Doc. 1

at 2, 6.) Regarding this habeas claim, Gordon acknowledges that he has not

exhausted his administrative remedies with the BOP insofar as he indicates

that he has appealed from the initial denial of his RRC/HC request to the

Warden of FCI Allenwood Low, and the Warden’s response to his appeal

was due on August 18, 2024. (Id. at 2.) He nevertheless argues in his motion

for expedited consideration and supporting affidavit that the Court should

excuse him from the exhaustion requirement because requiring him to

exhaust would render his petition moot. (Doc. 4 at 1; Doc. 5 at 1.)

II. DISCUSSION

A. Legal Standard

Under Section 2241, habeas relief may be extended to a federal

prisoner only when they are “in custody in violation of the Constitution or laws

or treaties of the United States.” 28 U.S.C. §2241(c)(3). Pursuant to Rule 4

of the Rules Governing Section 2254 Cases in the United States District

Courts, applicable to Section 2241 petitions through Rule 1(b), this Court has

the authority to dismiss a habeas petition if it “plainly appears from the

petition and any attached exhibits that the petitioner is not entitled to relief.”

R. 4, 28 U.S.C. foll. §2254; see R. 1(b), 28 U.S.C. foll. §2254 (“The district

court may apply any or all of these rules to a habeas corpus petition not

[involving a petition under 28 U.S.C. §2254].”); see also Heath v. Bell, 448

F. Supp. 416, 417 (M.D. Pa. 1977) (noting that Rule 1(b) of the Rules

Governing Section 2254 Habeas Petitions in the United States District

Courts renders Rule 4 applicable to Section 2241 habeas petitions). Thus, a

district court is “authorized to dismiss summarily any habeas petition that

appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849,

856 (1994) (citing R. 4, 28 U.S.C. foll. §2254).

B. Analysis

As explained above, Gordon recognizes that he has not fully

exhausted his administrative remedies as to the sole claim in his Section

2241 habeas petition but seeks to be excused from exhaustion because he

purportedly has a release date of November 29, 2024. (Doc. 1 at 3; Doc. 4

at 1; Doc. 5 at 1.) Unlike with Section 2254 and 2255 habeas petitions, there

is no explicit statutory exhaustion requirement for Section 2241 habeas

petitions. See Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000) (“[T]here

is no statutory exhaustion requirement attached to §2241[.]”). Nevertheless,

the Third Circuit Court of Appeals has “consistently applied an exhaustion

requirement to claims brought under §2241.” Id. (citations omitted).

Exhaustion “allow[s] the appropriate agency to develop a factual record and

apply its expertise[,] . . . conserves judicial resources[,] and . . . provide[s]

agencies the opportunity to correct their own errors [which] fosters

administrative autonomy.” Moscato v. Fed. Bureau of Prisons, 98 F.3d 757,

761–62 (3d Cir. 1996) (citations omitted).

Regarding exhaustion within the BOP, it has an Administrative

Remedy Program through which federal prisoners can request review of

nearly any aspect of their imprisonment. See 28 C.F.R. §542.10(a) (“The

purpose of the Administrative Remedy Program is to allow an inmate to seek

formal review of an issue relating to any aspect of his/her own

confinement.”). Specifically, the BOP has a four (4)-step administrative

process through which an inmate can address issues concerning the

conditions of their confinement. See id. §542.13(a)–15(a). Except in

circumstances inapplicable here, an inmate must first informally present the

complaint to staff, who must attempt to informally resolve the matter. See id.

§542.13(a) (“Except as provided in §542.13(b), an inmate shall first present

an issue of concern informally to staff, and staff shall attempt to informally

resolve the issue before an inmate submits a Request for Administrative

Remedy.”). If the informal resolution is unsuccessful, then the inmate must

execute the appropriate form to bring the matter to the attention of the

Warden, within twenty (20) calendar days of the date of the incident. See id.

§542.14(a) (“The deadline for completion of informal resolution and

submission of a formal written Administrative Remedy Request, on the

appropriate form (BP–9), is 20 calendar days following the date on which the

basis for the Request occurred.”). If the inmate is dissatisfied with the

Warden’s response, they may then appeal to the Regional Director within

twenty (20) calendar days. See id. §542.15(a) (“An inmate who is not

satisfied with the Warden’s response may submit an Appeal on the

appropriate form (BP–10) to the appropriate Regional Director within 20

calendar days of the date the Warden signed the response.”). The inmate

may then, if dissatisfied with the Regional Director’s response, appeal to the

General Counsel at the BOP’s Central Office within thirty (30) calendar days.

See id. (“An inmate who is not satisfied with the Regional Director’s response

may submit an Appeal on the appropriate form (BP–11) to the General

Counsel within 30 calendar days of the date the Regional Director signed the

response.”). This is the final administrative appeal level in the BOP, and no

administrative appeal is considered to have been fully exhausted until

considered by the BOP’s General Counsel. See id. (“Appeal to the General

Counsel is the final administrative appeal.”); see also Redmond v. Dortch,

823 F. App’x 266, 267 (5th Cir. 2020) (unpublished) (“Redmond did not fully

exhaust his remedies because he never completed the fourth and final step

of appeal to the Office of General Counsel.”).

Exhaustion is the rule in most cases, and failure to exhaust will

generally preclude federal habeas review. See Eiland v. Warden Fort Dix

FCI, 634 F. App’x 87, 89 (3d Cir. 2015) (unpublished) (explaining that

“exhaustion is a precondition to bringing suit” and summarily affirming district

court’s dismissal of Section 2241 petition due to petitioner’s failure to

exhaust). Only in rare circumstances is exhaustion of administrative

remedies not required. For example, exhaustion is unnecessary if “the issue

presented involve[s] only statutory construction.” Vasquez v. Strada, 684

F.3d 431, 433–34 (3d Cir. 2012) (citing Bradshaw v. Carlson, 682 F.2d 1050,

1052 (3d Cir. 1981)). Similarly, exhaustion is not required “if an attempt to

obtain relief would be futile or where the purposes of exhaustion would not

be served.” Cerverizzo v. Yost, 380 F. App’x 115, 116 (3d Cir. 2010)

(unpublished); see also Duckworth v. Serrano, 454 U.S. 1, 3 (1981)

(explaining that “[a]n exception is made [to the exhaustion requirement] only

if there is no opportunity to obtain redress in state court or if the corrective

process is so clearly deficient as to render futile any effort to obtain relief”).

In this case, Gordon does not articulate any legal basis to support his

suggestion of futility, i.e., that he need not exhaust his administrative

remedies at the BOP because of his impending November 29, 2024 release

date. Even if he attempted to do so, his argument would fail because, as

recently stated:

The Court is unaware of any decision from the Third Circuit Court

of Appeals holding that a federal prisoner may be excused from

the exhaustion requirement on that ground. Additionally, district

courts within the Third Circuit have repeatedly rejected the

argument that an inmate can be excused from the exhaustion

requirement simply because [their] projected release date is

approaching, and [they] may not complete [their] administrative

appeal before the release date. See, e.g., Brown v. Sage, No.

22-cv-325, 2022 WL 1295414, at *1-2 (M.D. Pa. April 29, 2022);

Malvestuto v. Martinez, No. 09-cv-1339, 2009 WL 2876883, at

*2-3 (M.D. Pa. Sept. 1, 2009); Bartolotti v. Knight, No. 22-cv-

6137, 2022 WL 17959577, at *1-2 (W.D. Pa. Dec. 27, 2022);

Rosales v. Hollingsworth, No. 15-cv-3840, 2015 WL 4314572, at

*2 (D.N.J. July 14, 2015).

Meadows v. Warden, FCI-Allenwood Low, No. 3:24-cv-952, 2024 WL

3871810, at *2 (M.D. Pa. Aug. 19, 2024). Moreover, as Gordon points out in

his petition, the Warden’s response to his initial formal request was due on

August 18, 2024. (Doc. 1 at 3.) As such, he still has ample time to complete

the remainder of the administrative process before seeking habeas relief.

Accordingly, there is no factual or legal basis upon which this Court could

conclude that requiring Gordon to fully exhaust his administrative remedies

with the BOP is futile, and the Court must deny his motion for expedited

consideration and dismiss without prejudice his Section 2241 habeas

petition.

C. Certificate of Appealability

To receive a certificate of appealability under 28 U.S.C. §2253(c),

Gordon must demonstrate, “at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether

th[is Court] court was correct in its procedural ruling.” Slack v. McDaniel, 529

U.S. 473, 484 (2000). Here, the Court concludes that Gordon has made no

such showing. Thus, a certificate of appealability will not issue in this case.

III. CONCLUSION

Based on the foregoing, the Court will deny Gordon’s motion for

expedited consideration and dismiss without prejudice his Section 2241

habeas petition. In addition, a certificate of appealability will be not issued,

and the Clerk of Court will be directed to close this case. An appropriate

order follows.

S/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: August 29, 2024

24-1322-01