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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JEFFREY S. CRUTCHFIELD,

Petitioner,

v.

ROBERT J. PALMQUIST,

Respondent.

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CASE NO. C06-0656-JLR

REPORT AND RECOMMENDATION

INTRODUCTION

Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, alleging

that the Bureau of Prisons failed to properly credit him for “good conduct time”and also

improperly denied his release to a halfway house. For the reasons set forth below, the court

recommends that the first of petitioner’s claims be denied without prejudice for failure to exhaust

administrative remedies, and the second be denied with prejudice for lack of merit.

PROCEDURAL BACKGROUND

In 1999, petitioner was convicted of bank fraud and related charges in the District of

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 These facts are stated in the motion to dismiss filed by respondent (Doc. #15), and have

not been challenged or disputed by petitioner.

REPORT AND RECOMMENDATION

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Oregon. (Doc. #15 at 2). 1 He was sentenced to 24 months’ imprisonment and 5 years of

supervision. (Id.)

 Petitioner was released in 2001, but violated the terms of his supervision three times over

the next few years, and most recently, was remanded into custody by the Eastern District of

Washington. His current projected release date is November 6, 2006. (Id.)

On May 11, 2006, petitioner filed an application to proceed in forma pauperis (“IFP

application”), along with the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2241. (Doc. #1). Because the IFP application was deficient, the Clerk of Court sent petitioner

a letter advising him of the deficiency and setting forth a deadline for petitioner’s response. (Doc.

#3). Petitioner cured the deficiency and the court granted petitioner’s IFP application on June 8,

2006. (Doc. 5).

On June 8, 2006, the Court directed that petitioner’s habeas petition be served on

respondent. (Doc. #9). Respondent was ordered to file a return to the petition within 30 days

after service. (Id.) In addition, the court struck two of petitioner’s motions – one to expedite

consideration of his habeas petition and one to waive administrative remedies – because they had

not been served on respondent, in violation of Local Rule CR 7(b). (Doc. #10). The court

advised petitioner that he could re-file the motions after he served them on respondent. (Id.)

Petitioner did not re-file the motions. Instead, he filed a motion for default on July 13,

2006, asserting that respondent had failed to file a timely return to the petition. (Doc. #14). The

next day, on July 14, 2006, respondent filed a return and a motion to dismiss for failure to exhaust

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administrative remedies. (Doc. #15). The Clerk removed petitioner’s motion for default from the

Court’s calendar because respondent had filed the return and petitioner was so advised.

On July 25, 2006, the Clerk received a letter from petitioner challenging the removal of

his motion for default from the calendar. The letter further asserted that the court had unfairly

applied procedural rules to petitioner but not to respondent. (Doc. #17). Petitioner contended

that respondent’s return and motion to dismiss was untimely and should not be considered by the

court. (Id.) Accordingly, petitioner asserted that his motion for default should be granted.

Respondent’s return and motion to dismiss was noted for consideration on August 11,

2006. Petitioner did not file a response to the return, and the matter is now ripe for review.

DISCUSSION

Petitioner’s Motion for Default

Before addressing respondent’s motion to dismiss, the court will consider petitioner’s

claim that the motion is untimely and that his motion for default should be granted. As previously

mentioned, the court directed respondent to file a return no later than 30 days after service of the

habeas petition. (Doc. #9 at 1). The Clerk sent a copy of the petition by certified mail to

respondent on June 8, 2006. According to the receipt sent back to the Clerk, respondent received

the Order and petition on June 12, 2006. (Doc. #11). The thirty-day deadline for a response thus

expired on July 12, 2006. Respondent’s return and motion to dismiss was filed on July 14, 2006,

or two days late.

While the court does not condone late filings, by either party, the court finds that in this

instance the two-day tardiness on respondent’s part was de minimis and did not prejudice

petitioner in any way. The court notes that petitioner had ample time to file a response to the

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 Respondent’s motion to dismiss was not preceded, nor accompanied, by a motion for an

extension of time. This oversight by counsel for respondent, while regrettable, does not serve as

a valid basis for granting a motion for default, because the delay was minor and default judgments

are generally disfavored. See, e.g., Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

REPORT AND RECOMMENDATION

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motion to dismiss, and apparently chose not to (other than to attack its timeliness). Had

respondent sought a two-day extension of time, the court would have granted it.2 Under these

narrow circumstances, the court sua sponte grants respondent a two-day extension of time,

rendering the motion to dismiss timely.

Respondent’s Return and Motion to Dismiss

Respondent argues that petitioner’s habeas petition should be denied because it lacks merit

and because he has failed to exhaust his administrative remedies. Petitioner raises two distinct

claims in his habeas petition. First, he claims that the Bureau of Prisons (“BOP”) has

miscalculated the amount of “good conduct time” (“GCT”) credit he has earned. (Doc. #6).

Second, he claims that BOP was required by statute to release him to a halfway house for the last

portion of his sentence. (Id.) As set forth below, the court concludes that petitioner failed to

exhaust the first issue and the second one lacks merit.

 1. Good Conduct Time Claim

Respondent attaches to his motion to dismiss a declaration by John McCafferty, Unit

Manager for the Federal Detention Center in SeaTac, Washington, where petitioner is

incarcerated. Mr. McCafferty declares that petitioner has not pursued any administrative remedy

regarding the GCT claim, but that he did file a claim regarding release to a halfway house. (Doc.

#16 at 2). Attached to Mr. McCafferty’s declaration are computer printouts supporting his

statements. (Id., Ex. 2).

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Petitioner does not dispute Mr. McCafferty’s assertions. Indeed, because he earlier filed

a motion to waive administrative remedies (Doc. #8), it appears that petitioner concedes that he

has not exhausted at least the first of his two claims. Under Ninth Circuit precedent, “[f]ederal

prisoners are required to exhaust their federal administrative remedies prior to bringing a petition

for a writ of habeas corpus in federal court.” Martinez v. Roberts, 804 F.2d 570 (9th Cir. 1986)

(per curiam). Because petitioner has failed to do so, his first claim should be dismissed without

prejudice.

2. Halfway House Claim

It is unclear whether petitioner’s second claim – that he should have been released to a

halfway house – has been completely exhausted. The declaration of Mr. McCafferty implies that

petitioner did not appeal the initial denial of the claim to the next level. (Doc. #16 at 2). 

However, even assuming that petitioner did exhaust the claim, it appears to lack merit.

Petitioner asserts that BOP was required by 18 U.S.C. § 3624(c) to release him to a

halfway house for the last few months of his sentence. That statute provides in pertinent part that

BOP “shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends

a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served

under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for

the prisoner’s re-entry into the community.” 18 U.S.C. § 3624(c).

Contrary to petitioner’s assertion, however, release under this statute has not been

interpreted to be mandatory. As the Ninth Circuit commented: “Nothing in the language of

section 3624(c) mandates that all prisoners pass through a community treatment center en route

to free society.” United States v. Laughlin, 933 F.2d 786, 789 (9th Cir. 1991). According to Mr.

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McCafferty, petitioner was denied release under this statute due to his “poor performance while

under supervision,” i.e., his three prior violations while under supervised release, and “his potential

threat to the community while in a community corrections center.” (Doc. #16, Ex. 4). Petitioner

does not show that BOP’s decision denying release to a halfway house was either unsupported by

the record or unauthorized by statute. Therefore, petitioner’s second claim lacks merit and should

be denied with prejudice.

CONCLUSION

For the foregoing reasons, the court recommends that petitioner’s first claim be dismissed

without prejudice and his second claim be dismissed with prejudice. A proposed Order

accompanies this Report and Recommendation.

DATED this 17th day of August, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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