UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNETH VAUGHN,

 

Petitioner, Case No. 2:15-cv-10092

 Honorable Victoria A. Roberts

v.

J.A. TERRIS,

Respondent.

____________________________________/

OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO DISMISS [Dkt. 6]

AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT

PREJUDICE

Petitioner Kenneth Vaughn is a federal inmate incarcerated at the Federal Correctional

Institution in Milan, Michigan. Petitioner was convicted in the United States District Court for the

Southern District of Ohio of 1) conspiracy to distribute in excess of 50 grams of cocaine and in

excess of 100 grams of heroin and cocaine in violation of 21 U.S.C. §§ 846,

841(a)(1)–(b)(1)(A)–(B)–(C), 2) employment of persons under 18 years of age in drug operations

in violation of 21 U.S.C. §§ 841(a)(1)–(b)(1)(C), 861(a)(1)–(b), and 3) use of a telecommunication

device in commission of a felony in violation of 21 U.S.C. § 843(b)–(d)(1). The Court sentenced

Petitioner to a 120-month term of imprisonment. Petitioner filed this pro se habeas corpus petition

pursuant to 28 U.S.C. § 2241, challenging the Bureau of Prisons’ decision to preclude him from

early release eligibility under 18 U.S.C. §3621(e) because he received a sentencing enhancement

for possession of a firearm during his offense. Specifically, Petitioner asserts that the BOP practice

at issue violates the Fair Sentencing Act of 2010. Before the Court is Respondent’s motion to

dismiss the petition on the grounds that Petitioner failed to exhaust his administrative remedies.

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I. Background

According to the records attached to the petition and submitted by Respondent, on January

13, 2014, Petitioner was interviewed for the Bureau of Prisons’ Residential Drug Abuse Treatment

Program (RDAP). Pursuant to 18 U.S.C. § 3621(e)(2)(B), the Bureau of Prisons has the discretion

to reduce an inmate’s sentence by up to one year if he was convicted of a nonviolent offense and

successfully completes RDAP. On January 29, 2014, however, the Designation and Sentence

Computation Center legal staff determined that Petitioner was not eligible for the early release

benefit under 18 U.S.C. § 3621(e), in part, because his current offense conviction involved a

two-point enhancement for possession of a firearm. Despite the fact that participation will not reduce

his sentence, Petitioner nevertheless began participating in the unit-based portion of the RDAP at

FCI Milan on May 12, 2014. 

Petitioner filed a request for administrative remedy at the institutional level on May 9, 2014,

asserting the same legal claim he advances in this action. The request was denied by Respondent on

July 1, 2014. Petitioner did not pursue his administrative remedies to the regional level.

II. Discussion

§ 2241 provides an avenue for federal prisoners to challenge official action affecting

execution of a sentence. See United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1999) ("[A]n

attack upon the execution of a sentence is properly cognizable in a 28 U.S.C. § 2241(a) habeas

petition."). However,"[f]ederal prisoners must exhaust their administrative remedies prior to filing

a habeas petition under § 2241." Fazzini v. Northeast Ohio Correctional Ctr., 473 F.3d 229, 231 (6th

Cir. 2006). The petitioner bears the burden of establishing exhaustion. Caver v. Straub, 349 F.3d

340, 345 (6th Cir. 2003). Yet, "[a] prisoner's failure to exhaust available . . . administrative remedies

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may be excused where pursuing such remedies would be futile or unable to afford the petitioner the

relief he seeks." Fazzini, 473 F.3d at 236. 

The BOP Administrative Remedy Program is a multi-tier process that is available to inmates

confined in institutions operated by the BOP for “review of an issue relating to any aspect of his/her

own confinement.” 28 C.F.R. § 542.10. An inmate must initially attempt to informally resolve the

issue with institutional staff. See 28 C.F.R. § 542.13(a). If informal resolution fails or is waived, an

inmate may submit a BP–9 Request to within 20 days of the date on which the basis for the Request

occurred, or within any extension permitted. See 28 C.F.R. § 542.14. An inmate who is dissatisfied

with the Warden's response to his BP–9 Request may submit a BP–10 Appeal to the Regional

Director of the BOP within 20 days of the date the Warden signed the response. See 28 C.F.R. §

542.15(a). The inmate may appeal to the BOP's General Counsel on a BP–11 form within 30 days

of the day the Regional Director signed the response. See id. Appeal to the General Counsel is the

final administrative appeal. See id. If responses are not received by the inmate within the time

allotted for reply, “the inmate may consider the absence of a response to be a denial at that level.”

28 C.F.R. § 542.18.

In this case, Petitioner admits that he did not pursue exhaustion of his administrative

remedies past the institutional level. Instead, he claims that he is not required to do so because it

would be futile. As Respondent asserts, however, Petitioner raises a novel § 3621(e) eligibility issue

by asserting that the BOP decision violates the Fair Sentencing Act. He cites no authority that the

BOP had already considered and rejected this particular argument. The Court agrees with

Respondent that BOP should first have an opportunity to review and address this issue before the

Court has to make such a finding. “Exhaustion gives an agency an opportunity to correct its own

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mistakes with respect to the programs it administers before it is haled into federal court, and it

discourages disregard of the agency’s procedures.” Fazzini, 473 F.3d at 231. Accordingly, the

petition will be dismissed without prejudice.

III. Order

Accordingly, it is ORDERED that the petition for writ of habeas corpus is DISMISSED

WITHOUT PREJUDICE.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: June 8, 2015

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Kenneth Vaughn by electronic means or U.S.

Mail on June 8, 2015.

s/Linda Vertriest 

Deputy Clerk

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