The opinion of the court was delivered by: Judge Rambo
Petitioner Robert Jay Berlin ("Berlin"), an inmate currently incarcerated at the Federal Prison Camp in Lewisburg, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on May 21, 2010, seeking an order compelling Respondent to reconsider the length of his pre-release custody placement in a residential re-entry center ("RRC") in accordance with the Second Chance Act of 2007. (Doc. 1.) For the reasons that follow, the petition will be denied.
Berlin was sentenced on October 21, 2008, in the United States District Court for the District of Connecticut to a thirty-three (33) month term of imprisonment for health care fraud in violation of 18 U.S.C. § 1347. (Doc. 5-2 at 3-6, Decl. of Joe Lincalis ¶ 2.) His projected release date is June 12, 2011. (Id. at 4 ¶ 4.)
On April 9, 2008, the Second Chance Act of 2007, Pub. L. No. 110-199, Title II, § 251, 122 Stat. 657, 692 ("Second Chance Act"), codified at 18 U.S.C. §§ 3621, 3624, was signed into law. The Second Chance Act increases the duration of pre-release placement in an RRC from six (6) to twelve (12) months and requires the Bureau of Prisons ("BOP") to make an individual determination that ensures that the placement be "of sufficient duration to provide the greatest likelihood of successful reintegration into the community." 18 U.S.C. § 3624(c)(6)(C). Thereafter, the BOP issued two guidance memoranda, dated April 14, 2008 (Doc. 5-2 at 7-16), and November 14, 2008, both of which required approval from the Regional Director for RRC placements of longer than six (6) months. The interim regulations which were passed on October 21, 2008, state that "[i]nmates may be designated to community confinement as a condition of pre-release custody and programming during the final months of the inmate's term of imprisonment, not to exceed twelve months." 28 C.F.R. § 570.21(a). Moreover, "[i]nmates will be considered for pre-release community confinement in a manner consistent with 18 U.S.C. § 3621(b), determined on an individual basis, and of sufficient duration to provide the greatest likelihood of successful reintegration into the community, within the time-frames set forth in this part." 28 C.F.R. § 570.22 (Oct. 21, 2008).
Recommendations for RRC placement are ordinarily reviewed with the inmate and Unit Team seventeen (17) to nineteen (19) months prior to the inmate's probable release date. (Doc. 5-2 at 4 ¶ 5.) After approval from the Warden, referrals are then forwarded to the Community Corrections Manager at least sixty (60) days prior to the maximum recommended date. (Id. at 4 ¶ 6, citing BOP Program Statement 7310.04, Community Corrections Center Utilization and Transfer Procedures.)
On December 9, 2009, Berlin's Unit Team conducted a program review to discuss his anticipated RRC placement and informed him that a recommendation for a 150-180 day RRC placement would be proposed. (Doc. 5-2 at 4-5 ¶¶ 8, 9; Doc. 5-2, Attach. 3, at 46.) The Unit Team's recommendation was based on the facts that bed space is available in Berlin's release district of Connecticut, he was convicted of health care fraud and has no prior criminal convictions, prior to incarceration he was educated as a pharmacist, he participates in inmate skills development programming, his sentence length is relatively short, and there were no known policy statements issued by the United States Sentencing Commission. (Doc. 5-2 at 5 ¶ 9; Doc. 5-2, Attach. 3 at 46.) On March 8, 2010, the proposed recommendation of 180 days was approved by the Warden. (Doc. 5-2 at 5 ¶ 11; Doc. 5-2, Attach. 4 at 48.) Berlin is scheduled for referral to RRC on December 15, 2010. (Doc. 5-2 at 5 ¶ 12.)
Prior to receiving the Warden's approval of the recommendation for RRC placement, Berlin filed a request for administrative relief at the institutional level on January 28, 2010. (Doc. 1-2 at 3, 4; Doc. 5-2 at 54-56, Decl. of Susan Albert, ¶ 5, Attach. 1.) The request was rejected on that same day for failure to first seek informal resolution. (Doc. 5-2, Attach. 1.) On February 9, 2010, Berlin re-filed the request for administrative relief, but it was closed at the institutional level for explanatory reasons only. (Id.)
On March 1, 2010, Berlin filed an appeal to the Regional Director's office, which was denied on March 30, 2010. (Doc. 1-2 at 6-8; Doc 5-2 at 55 ¶ 6, Attach. 1.) Next, he filed a Central Office administrative remedy appeal on April 12, 2010. (Doc. 5-2 at 55 ¶ 7, Attach. 1.) The appeal was rejected for procedural errors on April 30, 2010, but Berlin was informed that he could re-file his appeal within fifteen (15) days of the notice of rejection. (Id.) In his answer to the petition, Respondent asserts that as of the date of the filing of Albert's declaration, June 8, 2010, Berlin had not filed any additional appeals. (Id. at 55 ¶ 8.) As a result, Respondent takes the position that Berlin failed to exhaust his administrative remedies prior to filing the instant petition. However, in his traverse, Berlin asserts that he did not receive a response to his appeal from the Central Office within the time allotted for such a response, which is forty (40) days, see 28 C.F.R. § 542.18, and thus filed the instant petition on May 21, 2010. (Doc. 6 at 1.) He claims that after he filed the petition, he received a notice from the Central Office stating that it had not received his previous appeals. (Id.) He claims that he resent them the next day, and attaches a receipt from the Central Office. (Id. at 1, 5.) This receipt indicates that his appeal was received by the Central Office on May 17, 2010, and a response was not due until June 26, 2010, or over a month after Berlin filed the instant petition. (Id. at 5.)
The habeas statute upon which Berlin relies to challenge the timing of his pre-release placement, 28 U.S.C. § 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 v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). The Third Circuit Court of Appeals has concluded that Section 2241 is the appropriate means for challenging a decision to exclude an inmate from release to an RRC. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 243-44 (3d Cir. 2005).
A. Exhaustion of Administrative Remedies
Despite the absence of a statutory exhaustion requirement attached to § 2241, courts have consistently required a petitioner to exhaust administrative remedies prior to bringing habeas claims under Section 2241. Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Exhaustion is required "for three reasons: (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." Id. at 761-62 (citations omitted).
In order for a federal prisoner to exhaust his administrative remedies, he must comply with 28 C.F.R. § 542. See 28 C.F.R. § 542.10, et seq.; Lindsay v. Williamson, No. 1:CV-07-0808, 2007 WL 2155544, at *2 (M.D. Pa. July 26, 2007). An inmate first must informally present his complaint to staff, and staff must attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R. § 542.13(a). An inmate has twenty (20) calendar days from the date of the alleged injury within which to complete this informal resolution process. Id. at § 542.14(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. Id. If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office, and if unsuccessful on this appeal, he may appeal to the General Counsel or Central Office of the BOP. Id. at §§ 542.15(a) and 542.18. General Counsel has forty (40) calendar days to respond. See id. at § 542.18. If at any point an inmate misses a deadline imposed by the federal regulations, BOP policy requires that the inmate seek an extension of time within which to file his grievance. See id. at § ...