The opinion of the court was delivered by: Magistrate Judge Carlson
REPORT AND RECOMMENDATION
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 ...