Barry

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ABDOULAYE BARRY, No. 3:25cv960

Petitioner (Judge Munley)

v. :

WARDEN GREENE,

Respondent

MEMORANDUM

Petitioner Abdoulaye Barry (“Barry”) initiated the above-captioned action by

filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1).

Barry challenges the decision of the Federal Bureau of Prisons (“BOP”) to

exclude him from consideration for placement in a Residential Re-entry Center

(“RRC”) or home confinement due to his alien status. (Id. at 6; Doc. 1-1). On

June 26, 2025, respondent filed a response to the petition, arguing that the

petition should be dismissed for failure to exhaust administrative remedies, that

this court does not have jurisdiction to review the BOP’s decision whether to

transfer an inmate to prerelease custody, and that the petition fails on its merits

because Barry does not have a right to placement in prerelease custody. (Doc.

7). Barry failed to timely file a traverse. Therefore, on July 11, 2025, the court

issued a memorandum and order dismissing the habeas petition. (Docs. 8, 9).

On the same day the court issued its memorandum and order, Barry’s traverse

was received and docketed by the Clerk of Court. (Doc. 10).

On July 25, 2025, Barry filed a motion pursuant to Federal Rule of Civil

Procedure 59(e) arguing, inter alia, that the court issued its July 11, 2025

decision before considering his traverse. (Doc. 11). While there is nothing in

Barry’s traverse that alters the court’s prior determination dismissing the habeas

petition, the court will vacate the prior memorandum and order (Does. 8, 9) and

issue this memorandum and attendant order to reflect consideration of □□□□□□□

submission. The court will also deny Barry’s Rule 59(e) motion as he has not

presented the court with any changes in controlling law, newly discovered

evidence, or a clear error of law or fact that would necessitate a different ruling in

order to prevent a manifest injustice. See Feb. R. Civ. P. 59(e); Lazaridis v.

Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).

l. Background

On February 10, 2023, following a jury trial in the United States District

Court for the Northern District of Georgia, Barry was found guilty of access

device fraud, conspiracy to commit access device fraud, and aggravated identity

theft. See United States v. Barry, No. 1:21-cr-385 (N.D. Ga.), Doc. 194. On

June 21, 2023, Barry was sentenced to a 69-month term of imprisonment. See

id., Doc. 234. According to the BOP’s Inmate Locator, Barry has a projected

release date of February 15, 2027. See https:/Awww.bop.gov/inmateloc/.

The Administrative Remedy Generalized Retrieval reveals that, while in

BOP custody, Barry has filed four administrative remedies. (Doc. 7-4,

Administrative Remedy Generalized Retrieval). Of those four administrative

remedies, only one—number 123981 1-F1—concerns the claims raised in the

instant habeas petition. (Id. at 4). The remedy was denied at the institution level

and Barry did not file an appeal to the Regional or Central Offices. (Id.).

On April 11, 2025, BOP officials reviewed Barry for prerelease placement

under the five factors of the Second Chance Act of 2007, codified at 18 U.S.C. §

3621 and 3624. (Doc. 7-2, Declaration of M. Forsburg, BOP Case Manager,

(‘Forsburg Decl.”) at 3 J 7; Doc. 7-5, Individualized Needs Plan). The unit team

considered: (1) the resources of the facility contemplated; (2) the nature and

circumstances of the offense; (3) the history and characteristics of the inmate; (4

any court statement; and (5) any pertinent policy statement. Id. As a result of

the review, the unit team determined that Barry did not qualify for prerelease

placement under the Second Chance Act due to his status as an Institution

Hearing Program participant, his pending unresolved charges, and his public

safety factor assignment of deportable alien. (Doc. 7-2, Forsburg Decl. at 3 □□ 9;

Doc. 7-5, Individualized Needs Plan).

ll. Discussion

A. Exhaustion

While there is no statutory exhaustion requirement for habeas corpus

petitions brought pursuant to Section 2241, the Third Circuit has recognized that

“Iflederal prisoners are ordinarily required to exhaust their administrative

remedies before petitioning for a writ of habeas corpus pursuant to [Section]

2241.” Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996)

(citations omitted); Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000).

Exhaustion is required because: “(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 (citations omitted),

Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981).

However, exhaustion of administrative remedies is not required where

these underlying reasons for exhaustion would not be served. See Coleman □□□

U.S. Parole Comm'n, 644 F. App’x 159, 162 (3d Cir. 2016) (unpublished). “For

example, exhaustion may be excused where it ‘would be futile, if the actions of

the agency clearly and unambiguously violate statutory or constitutional rights, o

if the administrative procedure is clearly shown to be inadequate to prevent

irreparable harm.” Brown v. Warden Canaan USP, 763 F. App’x 296, 297 (3d

Cir. 2019) (unpublished) (quoting Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d

Cir. 1988)).

In order to exhaust administrative remedies, a federal inmate must comply

with the procedural requirements of the BOP’s administrative remedy process,

which are set forth in the Code of Federal Regulations. See generally 28 C.F.R.

§§ 542.10-542.19. Under these regulations, an inmate shall first attempt informe

resolution of his complaint with staff and, if the inmate is unable to resolve his

complaint informally, he shall submit a formal, written request on the proper form

to the designated staff member. See id. §§ 542.13-542.14. If the inmate is not

satisfied with the Warden’s response, the inmate shall then submit an appeal to

the Regional Director, using the appropriate form. See id. § 542.15(a). And,

finally, if the inmate is not satisfied with the Regional Director’s response, then

the inmate shall submit an appeal to the Office of the General Counsel, located i

the BOP Central Office, using the appropriate form. See id. An inmate is not

deemed to have exhausted his administrative remedies until his complaint has

been pursued at all levels. See id. (explaining that an “[a]ppeal to the General

Counsel is the final administrative appeal”).

Here, the record reflects that, although Barry filed one administrative

remedy concerning FSA eligibility—number 1239811-Fi—he undisputably failed

to properly exhaust that remedy. (See Doc. 7-4). Barry's Administrative Remedy

Generalized Retrieval report demonstrates that he never appealed the denial of

administrative remedy 1239811-F1 to the Regional or Central Offices—the

necessary steps to fully exhaust his administrative remedy. (Id.; see also Doc. {-

2, Forsburg Decl. at 3] 5). Rather than comply with the exhaustion

requirements, Barry bypassed the statutorily mandated procedures and, instead,

filed the instant habeas petition in federal court.

Barry concedes his failure to exhaust and admits that he did not file a final

appeal of the relevant administrative remedy. (Doc. 1, at 3; Doc. 1-1, at 1). Ina

sweeping and unsupported statement, Barry asserts that exhaustion should be

excused because the petition challenges the legal validity of a BOP policy that

makes him categorically ineligible for placement in prerelease custody. (Doc. 10

at 1). However, the record reflects that the BOP individually reviewed the five

factors required by 18 U.S.C. § 3621(b) in refusing to transfer Barry to prerelease

custody. (Doc. 7-5). Barry does not offer any plausible argument that

exhaustion should be excused. Further, Barry has not identified any BOP

actions that would clearly and unambiguously violate statutory or constitutional

rights, and he has not set forth any facts or advanced any argument that would

permit this court to find that exhaustion of administrative remedies would subject

him to irreparable injury.

Because Barry did not fully exhaust his administrative remedies before

petitioning this court, and because no exception to the exhaustion requirement

applies here, his Section 2241 petition must be dismissed.

B. Barry’s Claim is Not Cognizable under Section 2241

Assuming that administrative exhaustion could be excused, Barry’s claim is

not cognizable under Section 2241. Barry is challenging the BOP’s alleged

failure to designate him to an RRC. (Doc. 1, at 6; Doc. 1-1). However, this

Section 2241 challenge, which implicates the execution of his sentence (i.e.,

where the remainder of his sentence is served), is not cognizable on habeas

review.

The core of habeas corpus usually involves a challenge to the fact or

duration of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 487-88, 500

(1973). In Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005),

the United States Court of Appeals for the Third Circuit held that—in addition to

the fact or duration of confinement—prisoners may also challenge the

“execution” of their sentences in a petition under 28 U.S.C. § 2241. See

Woodall, 432 F.3d at 241-44. The Woodall Court acknowledged that “the □□□□□□□

meaning of ‘execution of the sentence’ is hazy.” Id. at 242.

In Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012), the Court of Appeals

clarified the jurisdictional boundaries for execution-of-sentence habeas

challenges. In Cardona, the Third Circuit considered whether a claim challengins

the BOP’s decision to transfer the petitioner to the Special Management Unit—a

highly restrictive form of confinement—was cognizable in a Section 2241 habeas

petition as a claim challenging the execution of the petitioner's sentence.

Cardona, 681 F.3d at 531, 535-37. The court summarized two earlier Third

Circuit cases that analyzed what claims could be brought to challenge the

execution of a sentence under Section 2241—Woodall and McGee v. Martinez,

627 F.3d 933 (3d Cir. 2010). The court reasoned that the claims at issue in

Woodall and McGee were cognizable because they “both challenged BOP

conduct that conflicted with express statements in the applicable sentencing

judgment.” Cardona, 681 F.3d at 536. “That is, both petitions claimed that the

BOP was not properly ‘put[ting] into effect or carry[ing] out’ the directives of the

sentencing judgment.” Id. (quoting Woodall, 432 F.3d at 243). The court in

Cardona thus held, “[i]n order to challenge the execution of [a] sentence under §

2241, [a petitioner] would need to allege that BOP’s conduct was somehow

inconsistent with a command or recommendation in the sentencing judgment.”

Id. at 537. Because the petitioner’s claim did not argue that such an

inconsistency was present, the court found that he was not properly challenging

the “execution” of his sentence and held that it was not a cognizable Section

2241 habeas claim. Id. at 537, 538.

| Similarly, Barry has not alleged that the BOP’s conduct regarding

prerelease custody is inconsistent with an express command or recommendation

in his judgment of sentence. Barry's sentencing judgment does not address or

discuss prerelease custody. See Barry, No. 1:21-cr-385, Doc. 234. Accordingly,

Barry’s habeas petition does not properly challenge the “execution” of his

sentence and this court lacks jurisdiction over his claim. See Cardona, 681 F.3d

at 537, 538. As such, the Section 2241 petition must be dismissed.

C. Merits of the Petition

Finally, assuming that exhaustion could be excused and that this court has

jurisdiction over Barry’s claim, the petition fails on the merits.

Transfer of BOP prisoners to prerelease custody is governed by 18 U.S.C.

§ 3624 and 18 U.S.C. § 3621. Section 3624 states, in relevant part:

The Director of the Bureau of Prisons shall, to the extent practicable,

| ensure that a prisoner serving a term of imprisonment spends a

| portion of the final months of that term (not to exceed 12 months),

under conditions that will afford that prisoner a reasonable

opportunity to adjust to and prepare for the reentry of that prisoner

into the community. Such conditions may include a community

correctional facility.

18 U.S.C. § 3624(c)(1). The decision whether to transfer an inmate to □□□□□□□□□□

custody, however, is left to the discretion of the BOP. 18 U.S.C. § 3624(c)(4).

When exercising this discretion, the BOP must conduct an individualized

assessment of whether an inmate should be transferred to prerelease custody

based on the following factors:

(1) the resources of the facility contemplated;

(2) he nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence--

(A) concerning the purposes for which the sentence to

imprisonment was determined to be warranted; or

(B) recommending a type of penal or correctional facility as

appropriate; and

(5) any pertinent policy statement issued by the Sentencing

Commission pursuant to section 994(a)(2) of title 28.

18 U.S.C. § 3621(b); Woodall, 432 F.3d at 247.

The record in this case clearly establishes that Barry’s unit team gave him

individualized consideration consistent with the five factors of § 3621(b). (Doc. 7

5). Specifically, the unit team considered and evaluated the five factors as

follows: (1) facility resources: RRCs have limited bed space availability and must

be used judiciously to provide re-entry services to as many inmates as possible;

(2) offense: access device fraud and aggravated identity theft; (3) prisoner:

average programming, clear conduct; (4) court statement: no recommendations

regarding RRC consideration; and (5) sentencing commission: United States

Sentencing Commission has not issued any policy statements related to BOP

prerelease RRC procedure. (Doc. 7-5, at 4). The unit team also found that Barn

does not qualify for prerelease placement under the Second Chance Act due to

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his status as an Institution Hearing Program participant, his pending unresolved

charges, and his public safety factor assignment of deportable alien. (Id.).

Barry’s purported disagreement with the BOP’s recommendation does not

establish a constitutional violation, as nothing in § 3642 or § 3621(b) entitles an

inmate to any guaranteed placement in an RRC. See Woodall, 432 F.3d at 244-

51 (holding, in exercising its discretion to make halfway house placement

decisions, the Bureau must consider the factors set forth in § 3621(b);

“[hlowever, that the [Bureau] may assign a prisoner to a halfway house does not

mean that it must.”); see also Beckley v. Miner, 125 F. App’x 385, 389 (3d Cir.

2005) (holding, “[i]t is well settled, and the parties agree, that the Bureau has

nearly exclusive jurisdiction to classify and transfer prisoners.”).

lll. Conclusion

For all the foregoing reasons, the court will dismiss Barry’s petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2241 and deny his Rule 59(e) motion.

An appropriate order shall issue.

BY THE COURT: □

~ GUDGE JULIA K. MUNLE

United States District Co

Dated: October A, 2025

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