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Anthony Washington v. Federal Bureau of Prisons

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


January 19, 2012

ANTHONY WASHINGTON, PETITIONER,
v.
FEDERAL BUREAU OF PRISONS, RESPONDENT.

The opinion of the court was delivered by: Magistrate Judge Carlson

(Judge Jones)

REPORT AND RECOMMENDATION

I. Introduction

This habeas corpus petition invites the Court to address a series of legal questions regarding the petitioner's prison placement and his suitability for drug programs in prison. Although Washington invites us to reach and resolve all of these issues, he extends this invitation to us without permitting the Bureau of Prisons to address his concerns by filing a proper, timely administrative request for relief from the prison program and placement decisions that Washington now challenges.

It is recommended that the Court decline Washington's invitation to address these issues at this time, since it is well-settled that a federal inmate who wishes to bring a habeas corpus petition must first exhaust administrative remedies within the prison system.

II. Statement of Facts and of the Case

A. Anthony Washington's Current Federal Conviction and Prison Placement

Anthony Washington is a federal inmate who was sentenced on January 21, 2009, in the United States District Court for the District of Connecticut to a 120-month term of imprisonment following his conviction for conspiring to possess with intent to distribute phencyclidine. (Doc. 6, Ex. 1) Washington is currently incarcerated at the United States Penitentiary, Allenwood. (Id., Ex. 2.) Washington alleges that his current prison placement at Allenwood prevents him from participating in a 500 hour drug rehabilitation program. (Id.) The petition recites that this restriction in access to certain prison programming is due, in part, to prison security classification decisions made by the Bureau of Prisons based upon information set forth in Washington's presentence report, and Washington urges us to "recommend to the BOP to re-evaluate and recalculate his security level to allow him to participate in the 500 hour drug treatment program in FCI Fairton." (Id. at 4.)

That pre-sentence report reveals that Washington is also an inmate whose criminal past is apparently marked by episodes of firearms violence, prior convictions which define his current security classification and the availability of some institutional programs. Specifically, it is alleged that Washington's pre-sentence report includes allegations relating to a series of firearms offenses and violent crime convictions. Thus, the pre-sentence report recites August 2005 convictions for second degree threatening and first degree reckless endangerment, which allegedly arose out of a December 16, 2004, episode in which three different victims described an incident in which the defendant wore a ski mask, used a loaded firearm, tried to rob them, and fired at least one shot at them during the course of an attempted robbery. (Id., Ex. 4) The pre-sentence report also discloses that Washington has other prior arrests involving violence and firearms possession, including a 1992 conviction for carrying a pistol without a permit and a 2003 conviction for third-degree assault. (Id.)

Washington now recognizes how this criminal past may affect his current incarceration and has tried, unsuccessfully to have this criminal history information expunged by filing a request with the court which sentenced him, a request that in many ways mirrors this habeas corpus petition. Thus, on June 9, 2011, Washington filed a Motion to Amend Pre-sentence Report with the sentencing court.(Id., Ex. 3). The motion contained arguments which are virtually identical to those advanced here, namely, challenges to the use of specific criminal record information contained in his pre-sentence report. The government opposed this request, when Washington made it before the sentencing court, noting that the pre-sentence report aptly described Washington's prior convictions, and specifically asserting that:

Paragraph 70 described the facts underlying the defendant's August 2005 convictions for second degree threatening and first degree reckless endangerment. According to this paragraph the convictions arose from an incident which occurred on December 16, 2004. Three different complainants described an incident in which the defendant wore a ski mask, used a loaded firearm, tried to rob them, and fired at least one shot at them during the course of an attempted robbery. The defendant had other prior arrests involving violence and/or firearms possession. In 1992, he was convicted of carrying a pistol without a permit; in 2002, he was convicted in federal court of felon in possession of a firearm, but that conviction was later overturned; and, in 2003, he was convicted of third degree assault. (Id. at 2-3 (citations omitted).) The sentencing court in Connecticut subsequently denied Washington's motion to amend this pre-sentence report on June 24, 2011, observing that at the time of sentencing that there was no objection to this aspect of the report. (Id., Docket, United States v. Washington, No. 3:08-CR-76 (D. Conn.) Ex. 5).

C. Bureau of Prisons Grievance Procedures and Washington's Failure to Administratively Challenge This Prison Programming and Placement Decision

While Washington has attempted, unsuccessfully, to collaterally attack the prior convictions set forth in his pre-sentence report with the sentencing court itself, he apparently has not yet endeavored to administratively address his concerns regarding these prison programming and placement decisions with the Bureau of Prisons. With respect to inmate concerns regarding prison placements and other matters, the Bureau of Prisons has adopted a three-tiered administrative remedy procedure with respect to inmate complaints which is set forth at 28 C.F.R. § 542.10, et seq. As part of this grievance process, once a final decision is made, inmates should first present their complaints to staff, and staff are obliged to attempt to informally resolve any issues before an inmate files a formal request for Administrative Remedy. Id. at § 542.13(a). At the second stage of this process, if an inmate is unable to informally resolve his complaint, the inmate may file a formal written complaint to the warden, on the appropriate form within 20 calendar days of the date on which the events which form the basis for the complaint took place. Id. at § 542.14(a). If the inmate's concern is not addressed to the inmate's satisfaction by the warden's response, the inmate may then file an appeal to the Regional Director within 20 calendar days. Id. at § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, that decision may then be appealed to the General Counsel (Central Office) within 30 calendar days from the date of the Regional Director's response. Id. The Regional Director then has 30 calendar days to respond and the General Counsel has 40 calendar days to address the inmate's concern. Id. at § 542.18.

As these regulations state: "The purpose of the Administrative Remedy Program is to allow an inmate to seek formal review of an issue relating to any aspect of his/her own imprisonment." 28 C.F.R. § 542.10(a). Under this grievance process: "If an inmate raises an issue in a request or appeal that cannot be resolved through the Administrative Remedy Program, the Bureau will refer the inmate to the appropriate statutorily-mandated procedures." Id. at § 542.10(c). Furthermore, under these procedures, no administrative remedy appeal is considered to have been fully exhausted until decided by the Central Office. 28 C.F.R. § 542, et seq.

The Bureau of Prisons maintains computerized indices of all administrative appeals filed by inmates so that staff can verify whether an inmate has exhausted administrative remedies on a particular issue. (Id., Ex. 2 ¶ 7.) On December 1, 2011, agency counsel searched Washington's administrative remedy filings and determined that he has filed only three administrative remedies during his incarceration. (Id.). All three of these administrative remedies pertain to a disciplinary incident involving another incident of weapons possession in Washington's past; specifically, the possession of a dangerous weapon in prison. (Id.) There is no record that Washington filed any administrative remedies regarding the issues he raised in the current habeas corpus petition. (Id.)

Thus, Washington's complaints remain wholly unexhausted at this time.

E. Washington's Habeas Corpus Petition

Washington filed this petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania on October 12, 2011. (Doc. 1) In his petition, Washington raises the issue which he previously attempted to litigate in his sentencing court relating to his prior criminal convictions, and seeks relief in the form of an order by the Court which "recommend[s] to the BOP to re-evaluate and recalculate his security level to allow him to participate in the 500 hour drug treatment program in FCI Fairton." (Id. at 4.) The respondents have responded to this petition by noting that Washington has not yet exhausted his administrative remedies with respect to this claim, and by arguing that the request is substantively inappropriate. (Doc. 6) These issues have been fully briefed by the parties (Docs. 1, 6 and 7) and are now ripe for disposition. For the reasons set forth below, it is recommended that the Court dismiss this petition without prejudice.

III. Discussion

A. The Exhaustion Doctrine Bars Consideration of This Habeas Petition At This Time

In our view, this petition suffers from a fundamental, threshold procedural flaw. This petition must be dismissed when the petitioner has failed to properly exhaust his administrative remedies within the federal prison system. Although 28 U.S.C. § 2241 contains no express exhaustion requirement, "[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241." Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998); see also, e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). These exhaustion rules serve an important and salutary purpose. The United States Court of Appeals for the Third Circuit requires administrative exhaustion of a claim raised under § 2241 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." Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996); see also Gambino, 134 F.3d at 171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988).

In this case, it is undisputed that Washington has not exhausted his administrative remedies with respect to these prison placement and programming complaints. With respect to habeas claims like those presented by here, which seek to challenge prison programing and placement decisions, it is also well settled that Courts in the Middle District of Pennsylvania have consistently required full exhaustion of administrative remedies. Ross v. Martinez, No. 09-1770, 2009 WL 4573686, 3 (M.D.Pa. Dec. 1, 2009)(RRC placement, collecting cases.) Rigorously applying these exhaustion requirements, this Court has consistently rejected habeas petitions where inmates have failed to fully exhaust their administrative remedies. See, e.g., Biscula v. Schism, No. 09-2552, 2010 WL 1805394 (M.D.Pa. May 5, 2010); McCooey v. Martinez, No. 09-1533, 2010 WL 411744 (M.D.Pa. Jan. 25, 2010); Lacy-Thompson v. Martinez, No. 09-1320, 2009 WL 4823875 (M.D. Pa. Dec. 14, 2009); Ferris v. Holt, No. 09-1465, 2009 WL 3260557 (M.D. Pa. Oct. 8, 2009); Drummond v. Martinez, No. 09-1258, 2009 WL 3241851 (M.D. Pa. Oct. 5, 2009). As we have previously explained when dismissing such a habeas petition challenging an prison placement decision for failure to exhaust administrative remedies:

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 shall attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R. § 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. 28 C.F.R. § 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. 28 C.F.R. §§ 542.15(a), 542.18. No administrative appeal is considered finally exhausted until a decision is reached on the merits by the BOP's Central Office. See Sharpe v. Costello, No. 08-1811, 2008 WL 2736782, at *3 (3d Cir. July 15, 2008).

Miceli v. Martinez, No. 08-1380, 2008 WL 4279887, at *2 (M.D.Pa. Sept. 15, 2008).

Because Washington has not exhausted his available administrative relief regarding these placement and programing decisions, and has not shown that the failure in pursuing administrative relief should be excused, this Court should, as a threshold matter, dismiss the petition for failure to exhaust administrative remedies, without prejudice to the filing of a new § 2241 petition after the petitioner fully exhausts appropriate administrative relief. See also, Lindsay v. Williamson, 271 F. App'x. 158, 160 (3d Cir. 2008); Craig v. Zickefoose, No. 09-6513, 2010 WL 234908 (D.N.J. Jan. 15, 2010); Shoup v. Schultz, No. 09-0585, 2009 WL 1544664, at *4 (D.N.J. June 2, 2009); Breazeale v. Shultz, No. 09-2118, 2009 WL 1438236 (D.N.J. May 19, 2009).

B. Washington's Petition May Fail On Its Merits

While we recommend denial of the petition on the grounds of failure to exhaust administrative remedies, we are obliged to note for Washington that there may also be significant, substantive obstacles to some of the relief which he seeks. For example, to the extent that Washington seeks to use a petition for writ of habeas corpus to compel prison officials to provide him with access to certain programs while incarcerated, the United States Court of Appeals for the Third Circuit has aptly noted: "The underlying purpose of proceedings under the 'Great Writ' of habeas corpus has traditionally been to 'inquire into the legality of the detention, and the only judicial relief authorized was the discharge of the prisoner or his admission to bail, and that only if his detention were found to be unlawful.' Powers of Congress and the Court Regarding the Availability and Scope of Review, 114 Harv. L.Rev. 1551, 1553 (2001)." Leamer v. Fauver 288 F.3d 532, 540 (3d Cir. 2002).

There is a necessary corollary to this principle, one which has long been recognized by the courts; namely, "[i]f a . . . prisoner is seeking [other relief], he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release-the traditional purpose of habeas corpus. In [such cases], habeas corpus is not an appropriate or available federal remedy." Preiser v. Rodriguez, 411 U.S. 475, 494 (1973). Thus, where a prisoner wishes to constitutionally challenge some aspect of the conditions of his confinement unrelated to the fact or duration of his detention, courts have repeatedly held that the writ of habeas corpus is not the proper vehicle for bringing this legal challenge. For example, in Leamer v. Fauver, supra the United States Court of Appeals discussed whether a habeas corpus petition was the appropriate tool for an inmate to use when challenging a prison disciplinary placement decision, like the decision at issue in this case. In terms that are equally applicable here the Court of Appeals held that these type of claims are not cognizable under habeas, stating:

When read together, there is a logical and coherent progression of Supreme Court jurisprudence clarifying when [habeas and other civil rights relief] is unavailable: whenever the challenge ultimately attacks the "core of habeas" -the validity of the continued conviction or the fact or length of the sentence-a challenge, however denominated and regardless of the relief sought, must be brought by way of a habeas corpus petition. Conversely, when the challenge is to a condition of confinement such that a finding in plaintiff's favor would not alter his sentence or undo his conviction, an action under [other civil rights statutes] is appropriate.

Leamer, 288 F.3d at 542 .

Following Leamer, courts have often considered invitations by inmates to use the writ of habeas corpus to examine prison placement and programming decisions. Yet, typically these invitations have been declined by the courts as a legal exercise which fall beyond the scope of habeas corpus jurisdiction. See e.g., Dickerson v. Diguglielmo, 306 F. App'x. 707 (3d Cir. 2009); Jupiter v. Warden, U.S.P. Lewisburg, 237 F. App'x. 726 (3d Cir. 2007); Levi v. Holt, 193 F. App'x 172 (3d Cir. 2006); Beckley v. Miner, 125 F. App'x. 385 (3d. Cir 2005). See generally, Torres v. Fauver, 292 F.3d 141 (3d Cir. 2002).

In addition, to the extent that Washington appears to request an order directing that he be transferred to FCI Fairton, it is well established that the United States Constitution does not confer any right upon an inmate to any particular custody or security classification. Moody v. Daggett, 429 U.S. 78, 88 (1976); Montanye v. Haymes, 427 U.S. 236, 242 (1976). Thus, inmates do not have a liberty interest in retaining or receiving any particular security or custody status "[a]s long as the [challenged] conditions or degree of confinement is within the sentence imposed ... and is not otherwise violative of the Constitution." Id. Similarly, it has long been recognized that prison transfer decisions, standing alone, do not constitute cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. See e.g., Hassain v. Johnson, 790 F.2d 1420 (9th Cir. 1986); Serrano v. Torres, 764 F.2d 47 (1st Cir. 1985). Even inmate transfers to facilities far from their homes do not rise to the level of cruel and unusual punishment. See, e.g., Gov't of Virgin Island v. Gereau, 592 F.2d 192 (3d Cir. 1979)(transfer from Virgin Islands to mainland); Rodriguez-Sandoval v. United States, 409 F.2d 529 (1st Cir. 1969)(transfer from Puerto Rico to Atlanta). Thus, well-settled law establishes that prisoners have no inherent constitutional right to placement in any particular prison, to any security classification, or to any particular housing assignment. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215 225 (1976); Montanye, 427 U.S. at 242; Bulger v. U.S. Bureau of Prisons, 65 F.3d 48 (5thCir. 1995); Marchesani v. McCune, 531 F.2d 459 (10th Cir.), cert.denied, 429 U.S. 846 (1976). Simply put, as a legal matter Washington may have no constitutional right to choose his prison.

Therefore, he may not use a petition for writ of habeas corpus as a vehicle to choose his place of confinement, or direct a prison transfer.

Having highlighted these legal concerns for Washington, however, it is recommended that this time that his petition be denied solely on the basis of his undisputed failure to exhaust his administrative remedies, thus allowing Washington to pursue relief within the prison system and then assess the merits of any habeas corpus petition once he has properly exhausted these claims.

IV. Recommendation

Accordingly, for the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus, IT IS RECOMMENDED that the Petition be DENIED without prejudice to the filing of a separate action once the petitioner has fully exhausted his administrative remedies.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Martin C. Carlson United States Magistrate Judge

20120119

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