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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CHRISTIAN JAMES NAVOY,,

 Petitioner,

vs. 3:10cv35/MCR/MD

MICHAEL BABCOCK, et al.

 Respondents.

REPORT AND RECOMMENDATION

This case is before the court upon an amended petition for writ of habeas

corpus filed pursuant to 28 U.S.C. § 2241 (doc. 6). The respondents have filed an

answer, in which they contend, among other things, that the petition is subject to

dismissal due to petitioner’s failure to exhaust his administrative remedies (doc. 14),

and the petitioner has filed a response. (Doc. 16). 

BACKGROUND

Petitioner was convicted pursuant to 18 U.S.C. § 371 for conspiracy to

introduce misbranded drugs into interstate commerce, to sell drug paraphernalia

and to commit mail fraud. The United States District Court for the Southern District

of Georgia sentenced him on March 31, 2009 to a term of 27 months imprisonment,

followed by 3 years of supervised release. His projected release date, with statutory

good time credit, is April 8, 2011, and his current halfway house date is January 8,

2011. In the instant petition, petitioner asserts that he is eligible for 12 months

placement in a Residential Re-entry Center (“RRC”). Petitioner claims that he has

been refused a good faith consideration for a 12 month RRC placement and instead
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has been told he can expect 60-90 days. He seeks immediate consideration for a six

month placement in an RRC and a six month placement in home confinement,

claiming that he is entitled to this placement pursuant to the Second Chance Act of

2007, Pub. L. No. 110-199, Title II, § 251(a), 122 Stat. 657 (2008). 

Respondents contend that the petitioner has not filed any administrative

remedies (doc. 14, exh. 1) and that therefore, having failed to exhaust his

administrative remedies, the petition should be denied. Respondents also contend

that BOP Director Harley Lappin should be dismissed as an improper respondent,

as it is Michael Babcock, Warden of FPC Pensacola who is the petitioner’s

custodian, that the petition is not ripe, because the BOP has not completed its

consideration of petitioner’s RRC placement, and finally that it is within the province

of the BOP to determine where prisoners within its custody will be housed, and that

such a determination may not be challenged via a petition for writ of habeas corpus.

DISCUSSION

A. Proper Respondent

Respondents are correct that the proper respondent in a habeas action is the

petitioner’s immediate custodian, that is the warden of the facility where the

petitioner is detained at the time he files the habeas petition, not a supervisory

official who exercises legal control over the petitioner. Rumsfield v. Padilla, 542 U.S.

426, 439, 124 S.Ct. 2711, 2720, 159 L.Ed.2d 513 (2004). Therefore,respondent Lappin

should be dismissed as a party to this action. 

B. Exhaustion of Administrative Remedies

Although the exhaustion requirement of the Prison Litigation Reform Act

(“PLRA”) does not apply to habeas petitions, it is well established that prisoners

must exhaust administrative remedies before habeas relief can be granted, including

relief pursuant to § 2241. Skinner v. Wiley, 355 F.3d 1293, 1295 (11 Cir. 2004); th

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Martin v. Zenk, 244 Fed.Appx. 974 (11 Cir. 2007); Fuller v. Rich, 11 F.3d 61, 62 (5 th th

Cir. 1994). The Eleventh Circuit has held that this requirement is jurisdictional. 

Winck v. England, 327 F.3d 1296, 1300 n.1 (11 Cir. 2003) (recognizing that although th

there is no statutory requirement that a federal inmate exhaust his administrative

remedies prior to filing a § 2241 writ of habeas corpus, exhaustion is jurisdictional

in the Eleventh Circuit); Gonzalez v. United States, 959 F.2d 211, 212 (11 Cir. 1992) th

(per curiam) (same); Hicks v. Jordan, 165 Fed.Appx. 797, 799 (11 Cir. 2006); cf. Boz th

v. United States, 248 F.3d 1299, 1300 (11 Cir. 2001) (per curiam) (Also jurisdictional th

is “[t]he general rule ... that a challenge to agency actions in the courts must occur

after available administrative remedies have been pursued.”) (internal quotation

marks and citation omitted). 

The Bureau of Prisons provides a four-level administrative grievance

procedure for prisoner complaints. 28 C.F.R. § 542.10-542.16. Initially, prisoners

must seek resolution of issues through informal grievances. Id. at § 542.13(a). If

unsuccessful, an inmate maythen file a formal written complaint with the institution. 

Id. at § 543.13(b). An appeal may then be taken to the Regional Director. Id. at §

542.15. Finally, an inmate may appeal the Regional Director’s response to the

General Counsel for the BOP. Id. Each of these steps is generally required to satisfy

the exhaustion prerequisite. Furthermore, an inmate is required to exhaust

administrative remedies before seeking habeas relief, rather than doing so while a

petition is pending. Gonzalez, 959 F.2d at 212; Meagher v. Dugger, 737 F.Supp. 641,

643 (S.D. Fla. 1990); Keys v. U.S. Dept. Of Justice, 136 Fed.Appx. 313 (11 Cir. 2005). th

Whether a futility exception is available in this circuit is questionable. Jaimes

v. United States, 168 Fed.Appx. 356, 359 (11 Cir. 2006). “Although judicially th

developed exhaustion requirements might be waived for discretionary reasons by

courts, statutorilycreated exhaustion requirements bindthe parties and the courts.” 

Richardson v. Reno, 162 F.3d 1338, 1374 (11 Cir. 1998) (emphasis added), judgment th

vacated on other grounds, 526 U.S. 1142, 119 S.Ct. 2016, 143 L.Ed.2d 1029 (1999). 

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Failure to comply with statutory exhaustion requirements deprives a court of

jurisdiction; thus “mandatory statutory exhaustion is not satisfied by a judicial

conclusion that the requirement need not apply due to futility.” Id.; Rey v. Warden,

FCC Coleman-Low, 2009 WL 5064350 *2 (11 Cir. 2009) (mandatory exhaustion not th

subject to the futility exception); cf. Gallo Cattle Co. v. United States Dep't of Agric.,

159 F.3d 1194, 1197 (9 Cir. 1998) (“[W]hile judicially-created exhaustion th

requirements may be waived by the courts for discretionary reasons,

statutorily-provided exhaustion requirements deprive the court of jurisdiction and,

thus, preclude any exercise of discretion by the court.”); Fuller v. Rich, 11 F.3d 61,

62 (5 Cir. 1994) (exceptions to the administrative exhaustionrequirement applyonly th

in “extraordinary circumstances” and the petitioner “bears the burden of

demonstrating the futility of administrative review.”) 

Petitioner does not deny that he failed to complete the administrative remedy

process, but asserts that Ruth Wombacher’s declaration about his administrative

remedies is factually inaccurate. In this respect it is petitioner who is mistaken. Ms.

Wombacher notes that petitioner “has not filed any formal administrative remedies

since he has been in Bureau custody.” (Doc. 14 , exh. 1 at 3, emphasis added). This

statement is not contradicted by petitioner’s explanation that he engaged in the

informal administrative remedy process at the institutional level concerning RRC

placement, which he was required to do before being given a BP-9 form, the

completion of which is the first step in the formal process. (Doc. 16, exh. 1 and 2). 

Petitioner explains that he decided not to further pursue the administrative remedy

process because of the low number of administrative remedies that area actually

granted by the BOP at any level (doc. 16 at 2) and because of the number of months

left in his sentence.

In support of his claim he cites the “identical case” of Outlaw v. Grayer, from

the United States District Court for the Northern District of Georgia 1:09cv1056. In

Outlaw, United States Magistrate Judge Janet F. King stated:

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To the undersigned’s knowledge, there is no published or unpublished

Eleventh Circuit opinion addressing the precise issue herein, i.e.,

whether administrative exhaustion is mandatory before a prisoner may

bring a § 2241 petition seeking an order directing the BOP to

immediately consider him for placement in an RRC facility, and, if not,

whether exhaustion may be excused as futile. The members of this

Court are split on this issue. [footnote citing cases]. The District Court

Judge to whom this case has been assigned, the Honorable Charles A.

Pannell, Jr., previously has agreed with a recommendation that

administrative exhaustion may be excused for a federal prisoner

seeking such § 2241 relief. See Warmus v. Zenk, No. 1:06-CV-2340-CAP

(N.D. Ga. Feb. 12, 2008). Accordingly, the undersigned now concludes

that the exhaustion requirement should be subject to a futility and

irreparable harm exception. Because, if approved, Petitioner’s 12

months in RRC confinement would begin in October, 2009, there is not

sufficient time for exhaustion of administrative remedies int his case. 

If required to exhaust, Petitioner would likely be irreparably harmed int

hat he may lose the opportunity for 12 months in RRC confinement. 

Therefore, lack of exhaustion should not foreclose the exercise of this

Court’s jurisdiction, and the petition should not be dismissed on this

ground. 

(Case 1:09cv1056, doc. 4 at 6-7). The district court adopted the recommendation over

the respondent’s vigorous objection. Among the objections raised by respondent

was that the petitioner had not shown that pursuit of administrative remedies would

have been futile on the date he filed his petition (or more time consuming than

pursuing litigation in federal court), or that the change of irreparable harm was more

than speculative. The district court adopted the recommendation and the

respondent was ordered in good faith to determine within fourteen (14) days whether

and when petitioner should be transferred to an RRC, taking into account the factors

listed in 18 U.S.C. § 3621(b) as well as any other factors deemed appropriate by the

BOP. (See Case 1:09cv1056, doc. 4 and 6). Thus, the only “relief” the petitioner

actually obtained was consideration of his eligibility for transfer to an RRC, which,

according to the respondent, was already underway at the time the petitioner filed

the petition for writ of habeas corpus. In any event, neither the Outlaw decision nor

its analysis with respect to the mandatory nature of administrative exhaustion is

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binding on this court. McGinley v. Houston, 361 F.3d 1328, 1331 (11 Cir. 2004).

th

(“general rule is that a district judge’s decision neither binds another district judge

nor binds him, although a judge ought to give great weight to his own prior

decisions.”) 

Additionally, the undersigned notes that district courts within this jurisdiction

have consistently adhered to the Eleventh Circuit directive that exhaustion of

administrative remedies is mandatory and/or not subject to a futility exception. See,

e.g., Soler v. Bauknecht, 3:04cv209/RV/MD (adopting recommendation that court is

without jurisdiction to consider unexhausted claims); Levitan v. Bauknecht,

3:04cv403/MCR/MD (adopting recommendationthatfailure toexhaust administrative

remedies requires dismissal of habeas petition); Krist v. Eichenlaub,

5:09cv143/RS/MD (adopting recommendation dismissing without prejudice for

petitioner’s failure to exhaust his administrative remedies); Gregson v.

Middlebrooks, 5:08cv33/RS/MD (adopting recommendation for dismissal based on

failure to exhaust and rejecting argument that a likely unfavorable outcome justifies

waiver); Garcia v. Middlebrooks, 5:08cv165/RH/MD (finding it doubtful that a futility

exception is available on the judicially created exhaustion requirement in the

Eleventh Circuit and dismissing for failure to exhaust); Tankersley v. Fisher,

3:09cv22/MCR/MD (finding no sound reason for excusing failure to exhaust

administrative remedies and dismissing for failure to exhaust). Absent controlling

guidance from the Eleventh Circuit or the United States Supreme Court, the instant

petition is subject to dismissal.

1

1 Because the petition is subject to dismissal due to petitioner’s failure to exhaust his administrative remedies,

the court does not reach the remaining arguments for dismissal, ripeness and the BOP’s inherent discretion

to determine the housing assignment of prisoners within its custody and control. The court does note,

however, that from the response to the petition, it appears that petitioner’s consideration for RRC placement

is and has been underway. Petitioner was briefly transferred to state custody to address state charges which

made him ineligible for RRC placement until the charges were resolved. Two days after his return to federal

custody during a meeting about community corrections placement, he requested to relocate to the Southern

District of Florida which caused a delay as the BOP must await approval from the United States Probation

Office before making a placement determination. (Doc. 14, att. 2)

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Accordingly it is respectfully RECOMMENDED:

That respondent Lappin be dismissed as a party to this action and that the

amended petition for writ of habeas corpus under § 2241 (doc. 6) be dismissed

without prejudice due to petitioner’s failure to exhaust his administrative remedies. 

 

At Pensacola, Florida this 19 day of May, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv35/MCR/MD