UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSE ROSA, : CIVIL NO. 4:05-CV-2386

:

Petitioner : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

RONNIE HOLT, Warden :

:

Respondent :

REPORT AND RECOMMENDATION

On November 17, 2005, the petitioner, a federal

prisoner proceeding pro se, filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner

is challenging the Bureau of Prisons’ calculation of his

sentence from the United States District Court for the

Eastern District of Pennsylvania.

After the petitioner paid the $5.00 filling fee, by an

order dated November 28, 2005, the respondent was ordered to

show cause on or before December 21, 2005 why the petitioner

should not be granted habeas corpus relief. The respondent,

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represented by an Assistant United States Attorney, filed a

motion for an extension of time to respond to the petition. 

By an Order dated December 21, 2005, the respondent’s motion

for an extension of time was granted and the respondent was

ordered to file his response to the petition on or before

January 5, 2006.

On December 29, 2005, the petitioner filed a document

entitled “Objection to Enlargement of Time and Granting Such

Enlargement Motion.” The petitioner asserted that the

United States Attorney does not have statutory authority to

represent the respondent, that it is improper for the

respondent to obtain assistance from legal counsel for the

Bureau of Prisons, and that he is prejudiced by the

extension of time granted to the respondent. We construed

the document filed by the plaintiff on December 29, 2005 as

a motion for reconsideration of the order granting the

respondent’s motion for an enlargement of time, and by an

Order dated January 9, 2006, we denied that motion. We

concluded that the United States Attorney may represent an

official of the United States in a matter in which the

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United States has a concern and that it is not inappropriate

nor prohibited for the United States Attorney to consult

with agency counsel. We also concluded that, although delay

in the adjudication of a habeas petition may potentially

prejudice the interests of a prisoner, the respondent’s

motion for an extension of time in this case set forth a

credible basis for an extension and that the court must have

a complete and accurate record before it to adjudicate the

petition. The petitioner filed an appeal to the district

judge of the denial of his objection to the enlargement of

time granted to the respondent. The petitioner again argued

that the Assistant United States Attorney should not be

permitted to represent the respondent in this action. By an

Order dated February 8, 2006, Judge McClure denied the

petitioner’s appeal. 

In the meantime, on January 4, 2006, the respondent

filed a response to the petition for a writ of habeas

corpus. On January 12, 2006, the petitioner filed a reply. 

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In his reply the petitioner again contends that the

United States Attorney should not be permitted to represent

the respondent in this action. Since that contention has

been addressed in our Order of January 9, 2006 and in Judge

McClure’s order of February 8, 2006, we will not discuss

that issue further. 

The respondent contends that the petition should be

dismissed because the petitioner has not exhausted

administrative remedies. The respondent also contends that

the petition should be denied because the Bureau of Prisons

has correctly calculated the petitioner’s sentence. 

We will first address the issue of exhaustion of

administrative remedies. Although there is no statutory

exhaustion requirement applicable to habeas petitions

brought pursuant to 28 U.S.C. § 2241, the courts have

created a rule that prisoners are ordinarily required to

exhaust their administrative remedies before petitioning for

a writ of habeas corpus pursuant to § 2241. Moscato v.

Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). 

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The basic rationale for the exhaustion requirement is that

judicial review may be facilitated by the agency's

development of a factual record, that judicial time may be

conserved if the agency grants the relief sought, and that

administrative autonomy requires that an agency be given an

opportunity to correct its own errors. Arias v. United

States Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981). 

However, exhaustion of administrative remedies is not

required where administrative procedures are unavailable or

incompetent to provide adequate redress or where exhaustion

would be futile. Gonzalez v. Perrill, 919 F.2d 1, 2 (2d Cir.

1990); Gambino v. Morris, 134 F.3d 156, 171 (3d Cir.

1998)(Roth, J., concurring)(exhaustion is not required when

petitioner demonstrates that exhaustion is futile).

Except for claims for which other administrative

procedures have been established, federal inmates may seek

“formal review of an issue relating to any aspect of his/her

own confinement.” 28 C.F.R. § 542.10(a). Generally, an

inmate must first present an issue of concern informally to

staff before submitting a Request for Administrative Remedy.

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28 C.F.R. § 542.13(a). If the attempt at informal

resolution is not successful, an inmate must address a

Request for Administrative Remedy to the institution staff

member designated to receive such requests within twenty

days of the date on which the basis for the complaint

occurred. 28 C.F.R. § 542.14(a) & (c)(4). The Warden will

respond to the Request for Administrative Remedy and an

inmate who is not satisfied with the Warden’s response may

appeal to the Regional Director within twenty days of the

date of the Warden’s response. 28 C.F.R. § 542.15(a). 

Finally, an inmate who is not satisfied with the Regional

Director’s response may appeal to the General Counsel within

thirty days of the date of the Regional Director’s response. 

28 C.F.R. § 542.15(a).

The respondent submitted the declaration of Wm E.

Baumgartel, a paralegal specialist with the Bureau of

Prisons. Doc. 11, Exhibit 2. Baumgartel states that on

December 15, 2005, he conducted a review of the Bureau’s

SENTRY database. Id. at ¶5. He states that his review

revealed that the petitioner has not filed any requests for

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administrative remedies during his current term of

incarceration with the Bureau of Prisons, and that,

therefore, the petitioner has not exhausted available

administrative remedies. Id. 

The petitioner does not dispute the respondent’s

assertion that he has not exhausted his administrative

remedies. Although the petitioner correctly argues that the

exhaustion of administrative remedies in § 2241 habeas cases

is not a jurisdictional or statutory requirement, he has not

presented the court with a valid reason for not requiring

exhaustion in this case. For example, he has not alleged

that exhaustion would be futile or that there was not time

for him to complete the administrative remedy process prior

to the date he contends that his sentence should expire. 

Since the petitioner has not presented the court with a

reason for not requiring exhaustion in this case, it will be

recommended that the petition be dismissed without prejudice

based on the petitioner’s failure to exhaust administrative

remedies.

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Since we recommend that the petition be dismissed

without prejudice based on the petitioner’s failure to

exhaust administrative remedies, we do not address the

merits of the petitioner’s claim.

Based on the foregoing, it is recommended that the

petition for a writ of habeas corpus be dismissed without

prejudice and that the case file be closed.

/s/ J. Andrew Smyser

J. Andrew Smyser

Magistrate Judge

Dated: February 16, 2006.

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