The opinion of the court was delivered by: (Judge Rambo)
Petitioner James Stark ("Stark"), an inmate currently incarcerated at the Low Security Correctional Institution at Lewisburg in White Deer, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on October 7, 2011, 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 an incentive provision in the Second Chance Act of 2007. (Doc. 1.) For the reasons that follow, the petition will be denied on the merits.
Stark was sentenced on October 28, 2008, in the United States District Court for the Eastern District of Virginia to a sixty (60) month term of imprisonment for receipt of child pornography in violation of 18 U.S.C. § 2252A(A)(2) and 2256(8)(A). (Doc. 7-1 at 3, Ex. 1, Decl. of R. Adams.) His projected release date is October 18, 2012. (Id. at 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) (Apr. 9, 2008). Thereafter, the BOP issued two guidance memoranda, dated April 14, 2008 (Doc. 7-1 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 that 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. 7-1 at 4.) 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., citing BOP Program Statement 7310.04, Community Corrections Center Utilization and Transfer Procedures.)
On April 26, 2011, Stark's Unit Team conducted a program review to discuss his anticipated RRC placement and informed him that a RRC placement for 90-120 days would most likely be recommended. (Doc. 7-1 at 5.) The Unit Team's recommendation was based on the facts that (1) Stark had not completed any sex offender treatment programs; (2) he failed to complete any Release Preparation Program courses; (3) he is not indigent; (4) he possesses employable skills; (5) he completed several programming classes; and (6) he has a relatively short sentence. (Id.) Stark's Unit Team determined that his participation in skills development programming did not warrant additional RRC placement time. (Id. at 6.) On July 27, 2011, the proposed recommendation of 90-120 days was approved by the Warden. (Id.) Stark is scheduled for referral to a RRC on June 21, 2012. (Id.)
Prior to receiving the Warden's approval of the recommendation for RRC placement, Stark filed an informal request for administrative relief at the institutional level on July 24, 2011. (Doc. 1-2 at 2; Doc. 7-2 at 38, Ex. 2, Decl. of Susan Albert.) The request was denied as untimely. (Doc. 7-2 at 38.) Further, in the denial the Unit Manager informed Stark that his RRC recommendation was discussed with him during the April 26, 2011 program review. (Id.) On August 10, 2011, Stark filed a request for administrative remedy numbered 651364-F1 with the warden, challenging his RRC recommendation. (Id. at 39.) This request was denied as untimely. (Id.)
On September 2, 2011, Stark filed an appeal to the Regional Director's office. (Id. at 40-41.) In his appeal, Stark stated,
On 7/24/2011, I submitted a BP-8 to Case Mgr. Adams asking him to explain how my risk of recidivism, programming, and need to establish community ties were taken into account in determining my RRC placement. I was not specifically challenging the 3-4 months placement he recommended, but rather seeking an explanation of how these three factors were figured. (Id. at 41.) Stark's appeal was denied as untimely. (Id. at 45.) In the denial, he was informed that he could re-submit his appeal if he provided staff with justification for why his remedy request was filed late. (Id.)
On September 14, 2011, Stark filed a second request for administrative remedy numbered 651364-F2 with the warden. (Doc. 1-2 at 8-9.) The request was denied as untimely on September 19, 2011. (Id. at 10.)
On October 7, 2011, Stark filed the instant petition. (Doc. 1.) On December 5, 2011, an order directing service of the petition was served upon Respondent. (Doc. 4.) Respondent filed a response to the petition on December 23, 2011. (Doc. 7.) Stark's traverse followed on January 11, 2012. (Doc. 11.) Thus, the instant petition is ripe for consideration.
The habeas statute upon which Stark 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 § 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 ...