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Gross v. Warden

April 21, 2008

CRAIG H. GROSS, PETITIONER
v.
WARDEN, RESPONDENT



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Before the court is Petitioner Craig H. Gross' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Gross argues that he has been punished twice for the same offense in violation of Fourteenth Amendment due process protections. Because Gross fails to identify a liberty or property interest protected by the 14th Amendment, the writ will be denied.

I. Background

A. Facts

Gross was incarcerated at the Federal Prison Camp in Otisville, New York. On March 7, 2007, a guard conducted a random search of his cell and found an iPod, a Palm Pilot with cell phone capability, a charger with a USB cable, and $11 in cash. At the subsequent disciplinary hearing, Gross was charged with possession of a hazardous tool, in violation of § 108 of the Institutional Incident Code and possession of money, in violation of § 303 of the same. (Doc. 10 Ex. A.) He admitted possession of the material. He was punished with forty-five days of disciplinary segregation (fifteen days suspended pending 180 days of good conduct), six months without visitors or telephone calls permitted, and the disallowance of forty days good conduct time. He does challenge these punishments in the instant petition.

As a result of this incident, Gross's security level was increased and he was transferred to the Low Security Correctional Institute -- Allenwood ("LSCIAllenwood") in Pennsylvania. Upon his arrival, the unit classification team assigned Gross a Public Safety Factor ("PSF") for "serious telephone abuse" pursuant to Program Statement P5100.08, Chapter 5, Code "O." The PSF limited his use of the telephone to seventy-five minutes per month. The policy at LCSIAllenwood ordinarily allows prisoners there 300 minutes of phone use per month.

Gross appealed the PSF to the Warden of LSCI-Allenwood, who denied relief on October 2, 2007. Gross appealed the Warden's decision to the Regional Director of the Bureau of Prisons. The Regional Director affirmed the Warden's decision. Gross made his final appeal to the Bureau of Prisons ("BOP"), but at the time Gross filed his petition, a decision has not yet been reached.

B. Procedural History

On October 22, 2007, Gross filed a petition for habeas corpus under 28 U.S.C. § 2241. (Doc. 1.) This court exercised its duty to examine the petition before ordering service. Rule 4, 28 U.S.C. foll. § 2254 (applicable to § 2241 petitions pursuant to Rule 1(b)); see Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979). Because Gross did not allege sufficient facts upon which relief could be granted under § 2241, this court ordered the petition dismissed and the case closed on October 30, 2007. (Doc. 4.) On October 29, 2007, however, Gross had mailed a motion to supplement his § 2241 petition. (See Doc. 5.) The motion was received by the court on October 31, 2007. (Id.) By order dated November 5, 2007, this court gave Gross until December 5, 2007 to file an amended petition. The amended petition and a brief in support thereof were filed on December 4, 2007. (Doc. 8.) It was ordered served on December 11, 2007. Respondent filed his response on December 31, 2007. (Doc. 12.) Gross's reply was filed on February 26, 2008 after an extension of time to file was granted. (Doc. 16.) Thus, the petition is ripe for disposition.

II. Exhaustion of Administrative Remedies

It is evident from the face of the petition that, at the time of filing, Gross had not exhausted the remedies available to him through the administrative process. (Doc. 8 ¶ 14.) In the ordinary course, a federal prisoner must exhaust administrative remedies before petitioning the district court under § 2241. Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Requiring administrative exhaustion promotes the following goals:

(1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors.

United States ex rel. Marrero v. Warden, 483 F.2d 656, 659 (3d Cir. 1973), rev'd on other grounds by Warden v. Marrero, 417 U.S. 653 (1974). If these basic goals are not served by requiring administrative exhaustion, the court may proceed to evaluate the merits of an unexhausted claim. Id. ("Whether to require exhaustion is discretionary."). Here, the government has not argued that the instant petition should be dismissed for failure to exhaust. Accordingly, because the resolution ...


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