Toney

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

ROBERT L. TONEY, )

)

Petitioner, )

) No. 2:25-cv-02916-TLP-tmp

v. )

)

WARDEN C. HARRISON, )

)

Respondent. )

ORDER DIRECTING CLERK TO MODIFY DOCKET, GRANTING RESPONDENT’S

MOTION TO DISMISS, DISMISSING § 2241 PETITION, CERTIFYING THAT AN

APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO

PROCEED IN FORMA PAUPERIS ON APPEAL

Pro se Petitioner Robert L. Toney1 petitions for habeas corpus relief under 28 U.S.C.

§ 2241. (ECF No. 2.) Respondent Warden Harrison now moves to dismiss the Petition.2 (ECF

No. 10). Petitioner responded in opposition. (ECF No. 13.) Respondent did not reply, and the

1 Petitioner is currently incarcerated at the Federal Correctional Institution in Memphis,

Tennessee (“FCI Memphis”) and is scheduled for release from the Bureau of Prisons (“BOP”)’

custody on October 7, 2028. See Federal BOP, Inmate Locator (Register No. 33777-045) (last

accessed Apr. 29, 2026).

2 Respondent filed the Motion under seal. “The courts have long recognized [] a ‘strong

presumption in favor of openness’ as to court records.” Shane Grp., Inc. v. Blue Cross Blue

Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (quoting Brown v. Williamson Tobacco Corp.

v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983)). “Only the most compelling reasons can justify

non-disclosure of judicial records.” In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th

Cir. 1983). Here, only one of the exhibits to the Motion to Dismiss—ECF No. 10-6—contains

unredacted personal identifying information. The Court sees no reason to keep the Motion to

Dismiss itself and the other exhibits under seal. And so the Court respectfully DIRECTS the

Court’s Clerk’s Office to unseal the Motion to Dismiss and all attached exhibits except for ECF

No. 10-6.

time to do has now passed. For the reasons below, the Court GRANTS Respondent’s Motion to

Dismiss and DISMISSES the Petition WITH PREJUDICE.

BACKGROUND

In early 2020, Petitioner pleaded guilty in the United States District Court for the

Western District of Missouri to one count of distribution of methamphetamine, in violation of 21

U.S.C. § 841(a)(1), one count of possession with the intent to distribute methamphetamine, in

violation of 21 U.S.C. § 841(a)(1), and one count of interstate travel in aid of a racketeering

enterprise, in violation of 18 U.S.C. § 1952(a)(3). (See United States v. Robert Lucious Toney,

No. 2:19-cr-04018-BCW, W.D. Mo. (ECF Nos. 11, 25, 26).) The District Court sentenced

Petitioner to incarceration for 151 months, followed by supervised release for five years. (See

id., (ECF No. 38).) Petitioner did not appeal his sentence. But he moved in the District Court

for compassionate release and a sentence reduction under Amendment 821 of the United States

Sentencing Guidelines. (Id. (ECF Nos. 40, 44).) The District Court denied both Motions. (Id.

(ECF Nos. 41, 49).)

I. The Petition

Petitioner petitioned here on September 26, 2025. (ECF No. 2.) He challenges how the

BOP applied–or rather, did not apply—Earned Time Credit (“ETC”) to him under the First Step

Act (“FSA”).3 (Id. at PageID 2–3.) According to Petitioner, he has accrued about 400 days of

ETCs. (Id. at PageID 2.) But he alleges that in 2023, the BOP “expressly eliminat[ed]

‘unresolved pending charges and/or detainers’ as disqualifying factors for FSA credits.” (Id.)

3 The FSA allows prisoners to earn ETCs toward prerelease custody or supervised release by

successful completion of “evidence-based recidivism reduction programming” or “productive

activities.” 18 U.S.C. § 3632(d)(4)(A). And under the Second Chance Act (“SCA”), the BOP

assesses each inmate to determine whether he or she may qualify for up to 365 additional days of

early transfer to pre-release custody. See 18 U.S.C. § 3624(c).

Petitioner contends that the BOP’s refusal to apply his ETCs because of a detainer against him

“violates both the statutory text of the FSA and the BOP’s updated policy.” (Id. at PageID 4.)

He also alleges that his § 841(a)(1) convictions “do[] not fall under the FSA’s disqualifying list”

because he did not receive a role enhancement under the Sentencing Guidelines. (Id. at PageID

5.) Petitioner asks that the Court “order the BOP to calculate and apply approximately 400

accrued FSA credits toward prerelease custody ([Residential Reentry Center (RRC)] or home

confinement) and/or supervised release.” (Id.)

ANALYSIS

Respondent argues that the Court should dismiss the § 2241 Petition for three reasons: (1)

Petitioner failed to exhaust his administrative remedies with the BOP (ECF No. 10 at PageID

22–25); (2) the BOP can determine Petitioner’s place of confinement (id. at PageID 25–27); and

(3) Petitioner has no constitutional liberty interest in pre-release custody (id. at PageID 25–28).4

The Court considers these arguments in turn.

I. Exhaustion of Administrative Remedies

Although § 2241 does not contain an express statutory exhaustion requirement, federal

inmates must generally exhaust all administrative remedies available before filing a § 2241

petition. See Little v. Hopkins, 638 F.2d 953, 953–54 (6th Cir. 1981) (“It is well established that

federal prisoners complaining of events or conditions relating to their custody must exhaust their

administrative remedies before habeas relief may be granted.”). The BOP has established a

4 Respondent’s supports the Motion to Dismiss with these exhibits: (1) a Declaration of Robin

Eads, a Paralegal for the BOP with access to official records for BOP inmates; (2) Petitioner’s

SENTRY Report; (3) the BOP’s June 13, 2023 memorandum on application of the FSA to

inmates with detainers and pending charges; (4) Petitioner’s FSA Time Credit Assessment; (5)

Petitioner’s SENTRY Administrative Remedy Report; (6) a copy of the detainer action letter and

warrant from the State of Missouri; and (7) a memorandum from Petitioner’s Unit Manager

regarding the justification for not referring Petitioner to RRC. (ECF Nos. 10-1–10-7.)

three-tiered Administrative Remedy Program by which an inmate may progressively redress

grievances at the institutional, Regional, and Central Office (national) levels.5 See 28 C.F.R. §

542.10 et seq. Relevant to the allegations in the Petition here, “[c]omplete exhaustion of [those]

administrative remedies is a prerequisite to seeking review of the BOP’s calculation of

sentencing credit.” Cooper v. Batts, No. 21-5828, 2022 WL 4009862, at *2 (6th Cir. Aug. 25,

2022) (internal quotation marks and citation omitted).

But a petitioner’s failure to exhaust administrative remedies “may be excused where

pursuing such remedies would be futile or unable to afford the petitioner the relief he seeks.”

Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2006). That said, “[t]he Sixth Circuit

requires some affirmative efforts to comply with the administrative procedures before analyzing

whether the facility rendered these remedies unavailable.” Napier v. Laurel Cnty., 636 F.3d 218,

223 (6th Cir. 2011) (internal quotation marks and citations omitted). A petitioner cannot “simply

fail to file a grievance or abandon the process before completion and claim that he has exhausted

his remedies or that it is futile for him to do so.” Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.

1999).

Petitioner asserts he “fully exhausted the BOP’s administrative remedy process; his

requests were denied solely because of the detainer.” (ECF No. 2 at PageID 4.) To be sure,

5 Under the BOP’s tiered process, an inmate must first seek to resolve his matter of concern

informally with prison staff (the BP-8). 28 C.F.R. § 542.13(a). If informal resolution is not

possible, the inmate may file a formal written Administrative Remedy Request (a BP-9) with the

facility’s warden within 20 days of the incident prompting the request. 28 C.F.R. § 542.14(a). If

the inmate is dissatisfied with the warden’s response, he may appeal to the regional director (a

BP-10) within 20 days of the date the warden signed the response. 28 C.F.R. § 542.15(a). If the

prisoner is not satisfied with the regional director’s response, he may submit an appeal (a BP-11)

to the BOP’s general counsel within 30 days of the regional director’s signed response. Id. This

appeal is the final level of administrative review. Id.

Petitioner “has a total of three remedy submissions, in the same series, all of which concern his

FSA eligibility.” (ECF No. 10-1 at PageID 31 (Eads Declaration); see ECF No. 10-5

(Petitioner’s administrative remedy history).) Petitioner “received a denial at the institution

level.” (Id.) Petitioner appealed to the regional office, but that appeal was rejected as untimely.

(Id.) “Instead of filing a new administrative remedy or providing proof that the delay was not

[his] fault, [Petitioner] appealed to the central office level.” (Id.) The Central Office rejected

that appeal because “it was filed at the wrong level and was untimely.” (Id.)

Proper exhaustion of administrative remedies requires compliance with the BOP’s

deadlines and other procedural rules. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (explaining

that “proper exhaustion of administrative remedies . . . ‘means using all steps that the agency

holds out, and doing so properly (so that the agency addresses the issues on the merits).’”

(emphasis in original) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). And

here, Petitioner did not fully exhaust his administrative remedies because the Regional and

Central Office levels did not address his FSA request on the merits. Yet Petitioner argues that he

filed his administrative remedy at all three levels and “complied with all regulatory requirements

or demonstrated valid reasons for any delays.” (ECF No. 13 at PageID 95.) Petitioner asserts

many arguments for why the Court should consider the administrative remedy process

unavailable to him. As explained below, he makes some valid points.

There are “three kinds of circumstances in which an administrative remedy, although

officially on the books, is not capable of use to obtain relief.” Ross v. Blake, 578 U.S. 632, 643

(2016). First, “an administrative procedure is unavailable when . . . it operates as a simple dead

end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.”

Id. Second, “an administrative scheme might be so opaque that it becomes, practically speaking,

incapable of use.” Id. Third, administrative remedies are rendered unavailable when “prison

administrators thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Id. at 644.

With this in mind, Petitioner contends that the Regional Office violated its own

regulations by rejecting Petitioner’s appeal as untimely without “conducting the analysis

required by 28 C.F.R. § 542.15(a).” (ECF No. 13 at PageID 96.) And that he “provided

verification in a declaration and a memorandum from BOP staff [member] Lawrence Nelson[] . .

. [that] confirmed that Petitioner received the Warden’s response on June 11, 2025 and requested

additional time to complete the appeal.” (Id.) Petitioner further argues that the Central Office

failed to conduct an independent review of the Regional Office’s procedural rejection and

instead “simply adopted the Regional Office’s position.” (Id. at PageID 97.)

And he supports these arguments with well-pleaded facts. Petitioner contends that on

June 12 or 13, 2025, he asked Case Manager McDaniel for a BP-10 form to prepare his appeal to

the Regional Office. (ECF No. 13 at PageID 89.) McDaniel told Petitioner to “wait for

Counselor Alexander” and “did not provide the form until June 18, 2025—six to seven days

later.” (Id.) Petitioner claims this delay “consumed nearly one-third of [his] 20-day appeal

window.” (Id.) According to Petitioner, he did not receive the BP-10 form until “one day before

the deadline [to file an appeal to the Regional Office] as calculated from the signature date.”

(Id.) The Warden denied Petitioner’s BP-9 on May 30, 2025. (ECF No. 13-1 at PageID 113.)

Having reviewed the record,6 the Court finds a genuine issue as to whether the BOP’s

administrative remedy process was rendered unavailable to Petitioner. The BOP’s administrative

6 The record shows Petition completed his BP-10 appeal on June 25, 2025, and mailed it to the

Regional Office via certified mail on June 26, 2025. (ECF No. 13 at PageID 89–90.) Petitioner

asserts that he attached three documents to his appeal: (1) a memorandum from BOP staff

remedy process provides that “[w]hen [an] inmate demonstrates a valid reason for delay [in

submitting an appeal], these time limits may be extended. Valid reasons for delay include those

situations described in § 542.14(b) of this part.” See 28 C.F.R. § 542.15(a). Those reasons

include:

an extended period in-transit during which the inmate was separated from

documents needed to prepare the Request or Appeal; an extended period of time

during which the inmate was physically incapable of preparing a Request or

Appeal; an unusually long period taken for informal resolution attempts; indication

by an inmate, verified by staff, that a response to the inmate’s request for copies of

dispositions requested under § 542.19 of this part was delayed.

See 28 C.F.R. § 542.14(b). This reasoning rings true here. Petitioner has provided arguments

and evidence suggesting that the process was rendered unavailable for two reasons—(1) the

delay in receiving the BP-10 form, which was necessary for Petitioner to submit his appeal to the

Regional Office; and (2) the Regional and Central Office’s failure to follow their own

regulations and consider whether Petitioner had shown a valid reason for his delay in submitting

his appeal. The Court therefore denies Respondent’s motion to dismiss for Petitioner’s alleged

failure to exhaust his administrative remedies.

II. Place of Confinement and Pre-Release Custody

The Court now turns to the merits of the Motion to Dismiss. Petitioner argues that he is

entitled to relief because the BOP unlawfully denied him about 400 ETCs under the FSA based

on a detainer placed against him. (ECF No. 1 at PageID 4.) And so he asks that the Court order

member Lawrence Nelson, requesting that Petitioner receive more time to complete the next step

in the administrative remedy process because Petitioner did not receive the Warden’s response

until June 11, 2025; (2) a certified mail receipt indicating that he mailed the appeal on June 26,

2025; and (3) his own declaration “under penalty of perjury documenting the timeline and staff

obstruction.” (Id. at PageID 90.) Petitioner has attached copies of his BP-10 and exhibits to his

response. (ECF No. 13-1 at PageID 114–15, 119–23.)

the BOP “to calculate and apply approximately 400 accrued FSA credits towards prerelease

custody (RRC or home confinement) and/or supervised release.” (Id. at PageID 5.) Respondent

asserts that Petitioner is not entitled to such relief because the BOP is authorized to determine

Petitioner’s place of confinement and because Petitioner has no liberty interest in pre-release

custody. (ECF No. 10 at PageID 25–28.) The Court agrees with Respondent for the reasons

below.

Section 2241 authorizes courts to issue writs of habeas corpus on behalf of prisoners who

are “in custody in violation of the Constitution or laws or treaties of the United States.” Federal

law provides that the BOP “shall designate the place of the prisoner’s imprisonment.” See 18

U.S.C. § 3621(b). The BOP “has broad discretion in administering a prisoner’s sentence, and

decisions to place a convicted defendant within a particular program or a particular facility are

decisions” within the BOP’s sole discretion. See Klawonn v. United States, 11 F. App’x 559,

561 (6th Cir. 2001) (citation omitted). And the BOP’s “designation of a place of imprisonment .

. . is not reviewable by any court.” See 18 U.S.C. § 3621(b).

While a court may recommend placement in a community corrections facility, that

recommendation “shall have no binding effect on the authority of the Bureau under this section

to determine or change the place of imprisonment of that person.” 18 U.S.C. § 36231(b); see

also United States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1991) (“While a judge has wide

discretion in determining the length and type of sentence, the court has no jurisdiction to select

the place where the sentence will be served. Authority to determine place of confinement resides

in the executive branch of government . . . and is delegated to the Bureau of Prisons.” (quoting

United States v. Dragna, 746 F.2d 457, 458 (9th Cir. 1984))).

So Petitioner faces an uphill battle here. Indeed, the BOP may place a prisoner in “pre-

release custody” to afford the prisoner a reasonable opportunity to adjust to and prepare for

reentry into the community. See 18 U.S.C. § 3624(c). But the FSA “did not change that the

BOP—not the Court—has the authority to make determinations related to prerelease custody.”

Stout v. Warden, FCI Ashland, No. 25-cv-0038-DLB, 2025 WL 2601516, at *1 (E.D. Ky. Aug.

13, 2025) (citation omitted)); see also Abbott v. Rardin, No. 2:25-cv-10739-TGB-PTM, 2026

WL 1167419, at *4 (E.D. Mich. Jan. 15, 2026) (“the FSA did not alter the BOP’s statutory,

discretionary authority under the [SCA] to determine when, or if, a prisoner should be placed in

an RRC or home confinement”); Frierson v. Rardin, No. 2:24-cv-12456, 2025 WL 410072, at *5

(E.D. Mich. Feb. 5, 2025) (a court has “no power” to order pre-release custody because “[t]he

[FSA] did not alter the BOP’s statutory authority to determine when, or if, a petitioner should be

released to a[n] [RRC] or to home confinement”); United States v. Mathews, No. 21-1697, 2022

WL 1410979, at *3 (6th Cir. Apr. 4, 2022) (“Decisions regarding home confinement . . .

[remain] reserved to the [BOP].”).

Despite all this, Petitioner suggests that the BOP violated Program Statement 5410.01 by

refusing to apply his FSA credits to transfer him to pre-release custody. (ECF No. 13 at PageID

105.) Yet that does not change that “[t]he BOP’s Program Statements are not ‘laws’ within the

meaning of [§ 2241], because they do not constitute regulations promulgated in compliance with

the requirements of the Administrative Procedure Act. Rather, they are internal agency

guidelines that are ‘akin to . . . interpretive rules.’” See Hutchins v. FMC Lexington, No. 5:08-

393-JMH, 2008 WL 4534241, at *2 (E.D. Ky. Oct. 7, 2008) (quoting Reno v. Koray, 515 U.S.

50, 61 (1995)).

So any suggestion by Petitioner that the BOP has misapplied Program Statement 5410.01

and the memorandum providing guidance is simply not cognizable under § 2241. Put simply,

Petitioner has failed to state a habeas claim this Court can recognize. The Court therefore

GRANTS Respondent’s Motion to Dismiss.

APPELLATE ISSUES

Federal prisoners who file petitions under § 2241 challenging their federal custody need

not obtain certificates of appealability under 28 U.S.C. § 2253(c)(1). See Witham v. United

States, 355 F.3d 501, 504 (6th Cir. 2004) (explaining that § 2253 “does not require a certificate

of appealability for appeals from denials of relief in cases properly brought under § 2241, where

detention is pursuant to federal process”). They must instead only pay the filing fee required

by 28 U.S.C. §§ 1913 and 1917. And if the petitioner cannot pay the fee, he must obtain pauper

status under Federal Rule of Appellate Procedure 24(a). Kincade v. Sparkman, 117 F.3d 949,

952 (6th Cir. 1997).

Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion

in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). But Rule

24(a) also provides that if the district court certifies that an appeal would not be taken in good

faith, or otherwise denies leave to appeal in forma pauperis, the petitioner must move to proceed

in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5). For the reasons

explained in the section above, the Court finds that any appeal would not be taken in good faith.

The Court therefore CERTIFIES under Rule 24(a) that any appeal would not be taken in good

faith and DENIES Petitioner leave to appeal in forma pauperis.

SO ORDERED, this 26th day of May, 2026.

s/Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE