UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RAFAEL BOWENS, # 09887-021

Petitioner, CASE NO. 2:15-CV-10203

 HONORABLE GEORGE CARAM STEEH

v. UNITED STATES DISTRICT COURT

J.A. TERRIS,

Respondent,

__________________________/

OPINION AND ORDER SUMMARILY DISMISSING

WITHOUT PREJUDICE THE PETITION FOR WRIT OF

HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. § 2241

This is a habeas case brought pursuant to 28 U.S.C. § 2241. Rafael Bowens,

(“Petitioner”), a federal prisoner presently confined at the Federal Correctional Institution

in Milan, Michigan, seeks relief from the Bureau of Prisons’ (B.O.P.) determination that

he is ineligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B) for his

successful completion of a drug treatment program. Respondent filed a motion to

dismiss the petition on the ground that petitioner has not exhausted his administrative

remedies. Petitioner filed a reply to the motion. For the reasons set forth below, the

petition for writ of habeas corpus is dismissed without prejudice. 

I. Background

Petitioner was sentenced in 1999 by the United States District Court for the

Southern District of Georgia to a 162-month term of imprisonment and three years’

supervised release for distribution of cocaine, in violation of 21 U.S.C. § 841. Petitioner

was released from custody on August 15, 2008. On April 6, 2010, petitioner was

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sentenced by the United States District Court for the Southern District of Georgia to a

90-month term of imprisonment and five years’ supervised release for conspiracy to

distribute cocaine hydrochloride, in violation of 21 U.S.C. § 846. On May 6, 2010,

petitioner was also sentenced to a 20-month term of imprisonment for violating the

supervised release conditions of his 1999 conviction. The two sentences are to be

served consecutively and are treated as a single aggregate term of imprisonment. 

Petitioner’s current projected release date is September 16, 2017. 

On June 18, 2014, petitioner was interviewed for the B.O.P.’s Residential Drug

Abuse Treatment Program (R.D.A.P.). Pursuant to 18 U.S.C. § 3621(e)(2)(B), the

B.O.P. has the discretion to reduce an inmate’s sentence by up to one year if he or she

was convicted of a nonviolent offense and successfully completes R.D.A.P. B.O.P. staff

determined that petitioner was ineligible for the early release benefit under 18 U.S.C. §

3621(e) because his current offense conviction involved a two-point enhancement

under the Federal Sentencing Guidelines for possession of a firearm and also

determined that his offense conduct presented a serious potential risk of physical force

against the person or property of another. 

In spite of this ruling, petitioner entered the unit-based portion of the R.D.A.P. on

July 1, 2014 and is still active in the program.

Petitioner filed this petition on January 16, 2015, without attempting to file any

administrative remedies with the Bureau of Prisons to challenge their determination that

he is ineligible for early release consideration. 

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II. Discussion

The instant petition is subject to dismissal, because petitioner acknowledges that

he failed to exhaust his administrative remedies with the B.O.P. prior to filing the instant

petition.

A federal habeas corpus petitioner must exhaust administrative remedies before

seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. See Fazzini v. Northeast

Ohio Correctional Center, 473 F. 3d 229, 231 (6th Cir. 2006); See also Little v. Hopkins,

638 F.2d 953, 954 (6th Cir. 1981). The burden is on the habeas petitioner to prove

exhaustion. See, e.g., Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). 

The Bureau of Prisons maintains an extensive administrative remedy procedure

“through which an inmate may seek formal review of a complaint which relates to any

aspect of his imprisonment if less formal procedures have not resolved the matter.” 28

C.F.R. § 542.10. Pursuant to this administrative procedure, a prisoner who seeks

administrative review of a complaint concerning the B.O.P. must apply to the warden or

community corrections manager, to the Regional Director, and to the Office of General

Counsel for relief. See Mazzanti v. Bogan, 866 F. Supp. 1029, 1032 (E.D. Mich.

1994)(citing 28 C.F.R. §§ 542.11, 542.13, and 542.15). 

Petitioner acknowledges that he has failed to exhaust his administrative remedies

but claims that it would be futile to do so because of the B.O.P.’s pre-determined policy

that persons who receive sentence enhancements under the Federal Sentencing

Guidelines for firearms possession are ineligible for a one year reduction in their

sentences under 18 U.S.C. § 3621(e)(2)(B). 

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Although there is a futility exception to the exhaustion requirement, See

Fazzini, 473 F. 3d at 236 (citing Aron v. LaManna, 4 Fed. Appx. 232, 233 (6th Cir.

2001)), resort to administrative remedies is considered futile only if there has

been “a prior indication from the agency that it does not have jurisdiction over the

matter or it has evidenced a strong position on the issue together with an

unwillingness to reconsider.” Colton v. Ashcroft, 299 F. Supp. 2d 681, 690 (E.D.

Ky. 2004)(quoting James v. United States Dept. of Health and Human Services,

824 F. 2d 1132, 1139 (D.C. Cir. 1987)).

Petitioner argues that any exhaustion of his claim would be futile due to 

the mandatory nature of the B.O.P.’s policy to automatically exclude from early

release all inmates who have received two-level sentencing enhancements under

the sentencing guidelines for possession of a firearm. 

Petitioner is correct that when the B.O.P. has predetermined a disputed issue,

the exhaustion requirement may be excused. See McCarthy v. Madigan, 503 U.S. 140,

148 (1992); see also Boucher v. Lamanna, 90 F. Supp. 2d 883, 887 (N.D. Ohio

2000)(exhaustion of administrative remedies would be futile where the B.O.P.’s policy

on categorizing the prisoner’s offense as a violent crime was mandatory, the issue was

a legal one that the B.O.P. had consistently defended, and the potential for immediate

release counseled timely consideration of the petitioner’s case); see also Johnson v.

Zych, No. 09-CV-13216, 2009 WL 2960403, at *1 (E.D. Mich. Sept. 14, 2009)(same);

Chevrier v. Marberry, No. 04-10239, 2006 WL 3759909, *2-3 (E.D.Mich. 2006)(same). 

Other cases, however, have required a federal prisoner to exhaust administrative

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remedies prior to seeking habeas relief on a claim that he or she was wrongly denied a

sentence reduction under 18 U.S.C. § 3621(e)(2)(B) for the successful completion of a

drug treatment program. See e.g. Daniels v. Zych, No. 09-11497-BC, 2010 WL 204101,

at * 1-2 (E.D. Mich. Jan. 14, 2010); Newsome v. Cauley, No. CIV.A. 09CV79 HRW,

2009 WL 3190410, at *3 (E.D. Ky. Sept. 30, 2009). Thus, there appears to be a split of

authority about whether it would be futile to require a habeas petitioner to exhaust

administrative remedies with respect to a claim that he or she was wrongly denied a

sentence reduction under § 3621(e)(2)(B). 

Petitioner’s case, moreover, is also potentially distinguishable from those cases

in which the courts ruled that it would be futile to require the prisoner to exhaust

administrative remedies. In his habeas application, petitioner makes the novel

argument that the B.O.P.’s blanket determination that all federal prisoners who have

received an enhancement under the sentencing guidelines for firearms possession are

automatically guilty of a violent offense, so as to exclude them from eligibility for a one

year sentence reduction under § 3621(e), violates the Fair Sentencing Act of 2010's

mens rea requirement. U.S.S.G. § 2D1.1, which is applicable to drug trafficking

offenses, provides that a defendant’s offense level should be increased by two levels if

he or she “used violence, made a credible threat to use violence, or directed the use of

violence.” § 2D1.1(b)(2). The commentary to § 2D1.1 provides that subsection (b)(2)

implements § 5 of the Fair Sentencing Act (“FSA”). § 2D1.1(b)(2), comment. (backg’d). 

Section 5 of the FSA directs the Sentencing Commission to “review and amend the

Federal sentencing guidelines to ensure that the guidelines provide an additional

penalty increase of at least 2 offense levels if the defendant used violence, made a

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credible threat to use violence, or directed the use of violence during a drug trafficking

offense.” FSA, Pub.L. No. 111–220, § 5, 124 Stat. 2372. 

This Court has been unable to find a single case in which a federal prisoner

argued that the Fair Sentencing Act’s mens rea requirement for the Federal Sentencing

Guidelines precludes the B.O.P. from categorically denying early release to prisoners

whose current offense was a felony attended by the carrying, possession, or use of a

firearm. In light of the mens rea requirement contained within the Federal Sentencing

Act, the B.O.P. may be willing to reconsider its blanket policy that all federal prisoners

who receive a two point enhancement are guilty of a violent offense and thus ineligible

for a one year sentence reduction for completing drug treatment. 

Before this Court reviews the B.O.P.’s policy, “the Bureau should be able to

consider changing its policy.” Raynor v. Shartle, No. 4:08-CV-1688, 2009 WL 1661913,

at *3 (N.D. Ohio June 15, 2009)(exhaustion of petitioner’s claim not futile in light of new

9th Circuit case which held that the B.O.P.’s categorical exclusion from early release

prisoners convicted of firearms offenses violated the Administrative Procedures Act). 

Although the B.O.P. has in the past “expressed a clear policy and an unwillingness to

change,” in light of Congress’s recent passage of the Fair Sentencing Act and its

possible application to the B.O.P.’s current policy, “the benefit of exhaustion to both the

administrative and judicial processes outweighs elements of futility.” Id. 

III. ORDER

Accordingly, the Court DISMISSES WITHOUT PREJUDICE the petition for writ

of habeas corpus. Because a certificate of appealability is not needed to appeal the

denial of a habeas petition filed under § 2241, Witham v. United States, 355 F. 3d 501,

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504 (6th Cir. 2004), petitioner need not apply for one with this Court or with the Sixth

Circuit before filing an appeal from the denial of his habeas petition. 

Dated: April 21, 2015

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

April 21, 2015, by electronic and/or ordinary mail and also on

Rafael Bowens #09887-021, Milan Federal Correctional

Institution, Inmate Mail/Parcels, P.O. Box 1000,

Milan, MI 48160.

s/Barbara Radke

Deputy Clerk

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