The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court is the petitioner's objection (Doc. 11) to Magistrate Judge J. Andrew Smyser's recommendation (Doc. 10) that the petition for a writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. §§ 2241 be denied. Having been fully briefed, the matter is ripe for disposition.
Petitioner Robert Drummond is currently incarcerated at the Low Security Correctional Institution at Allenwood in White Deer, Pennsylvania ("LSCI Allenwood"). (Pet. for Writ of Habeas Corpus (Doc. 1 at 1)) (hereinafter "Pet."). Petitioner Drummond ("Drummond") is serving the remainder of a 132-month sentence for violating 18 U.S.C. § 2113(A), bank robbery; 18 U.S.C. § 2113(D), armed bank robbery; 18 U.S.C. § 2, aiding and abetting; and 18 U.S.C. § 924(C), possessing and brandishing a firearm during and in relation to a crime of violence. ("Sentence Monitoring Report Sheet", Pet. Ex. B (Doc. 1-3 at 2 to 3)). Petitioner Drummond is projected to be released from Bureau of Prisons ("BOP") custody on July 5, 2010. (Id.)
On October 23, 2008, Drummond's Unit Team reviewed his pre-release needs and recommended a placement date in a residential re-entry center ("RRC") between five and six months (150 to 180 days) prior to his release date. (Pet. at 3; Decl. of Bruce Beaver at 3 (Doc. 7-2 at 4)). According to Bruce Beaver, Case Manager at the LSCI at Allenwood, "it was determined that this range was of suffiicent duration to provide the greatest likelihood of successful reintegration into the community." (Decl. of Bruce Beaver at 3). On June 23, 2009, Drummond was approved*fn1 for 180 days in a RRC, preceding his July 5, 2010 release. (Id.)
On July 1, 2009, Drummond filed this petition for a writ of habeas corpus pro se, arguing that BOP pre-release policies violate 18 U.S.C. § 3624(c), as amended by the Second Chance Act (Pub.L. 110-199, Title II, § 251(a), Apr. 9, 2008, 122 Stat. 692)*fn2 . Drummond also seeks a writ of mandamus compelling the BOP to consider his RCC placement according to his interpretation of the Second Chance Act. An April 14, 2008 BOP guidance memorandum (Pet. Ex. A (Doc. 1-2 at 2 to 5)) requires a warden to obtain written concurrence from the regional director before submitting a request to place inmates in an RRC for a period greater than six months, the prior statutory maximum. (Pet. at 2 to 3). The petitioner alleges that the BOP categorically denied him the full twelve-month placement in an RRC by following the April 14, 2008 memorandum, which he contends is "inconsistent" with the Second Chance Act and Strong v. Schultz, 599 F. Supp. 2d 556 (D.N.J. 2009). (Pet. at 2-3). Petitioner Drummond concedes that he has yet to exhaust any of his administrative remedies, but he argues that he would be further prejudiced by time constraints if he were to exhaust review. (Id. at 3). Magistrate Judge Smyser recommends denying the petition. Petitioner Drummond objects, bringing the case to its present posture.
Because this case is brought under 28 U.S.C. §§ 2241, 1361, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A habeas petition and any supporting submissions filed pro se must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney Gen., 878 F.2d 714, 721-22 (3d Cir. 1989). However, a federal district court can dismiss a habeas petition if it appears from the face of the petition that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir.1985), cert. denied, 490 U.S. 1025 (1989). See also 28 U.S.C. §§ 2243, 2255.
Petitioner Drummond seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("Section 2241"). That statute "confers jurisdiction on district courts to issue writs of habeas corpus in response to a petition from a state or federal prisoner who 'is in custody in violation of the Constitution or laws or treaties of the United States.'" Coady v. Vaughn, 251 F.3d 480, 484 (3d Cir. 2001). The federal habeas statute also requires that the petitioner be in custody "under the conviction or sentence under attack at the time his petition is filed." Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989)).
Section 2241, unlike other federal habeas statutes, "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." Coady, 251 F.3d at 485. (quoting 28 U.S.C. §§ 2241(a) and (c)(3)). Although the Third Circuit Court of Appeals has yet to clearly define the meaning of "execution" in this context, it has cited approvingly holdings from other circuits finding that a Section 2241 motion properly challenges "'such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.'" Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242 (3d Cir. 2005) (quoting Jimian v. Nash, 245 F.3d ...