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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BERNARD RALPH GRAVES,

 Petitioner,

vs. Case No. 3:10cv375/WS/MD

MIKE BABCOCK,

 Respondent.

REPORT AND RECOMMENDATION

This cause is before the court upon a petition for writ of habeas corpus filed

pursuant to 28 U.S.C. § 2241. (Doc. 1). Respondent has filed a response (doc. 9),

and petitioner has filed a reply, which was styled “petitioner’s motion for summary

judgment.” (Doc. 11). 

Petitioner Bernard Graves is a federal inmate currently incarcerated at the

Federal Prison Camp in Pensacola, Florida with a projected release date of

November 19, 2011. In this habeas proceeding, petitioner raises a single ground for

relief. He contends the Federal Bureau of Prisons (“BOP”) has abused its discretion

in interpreting the Second Chance Act (“SCA”) 18 U.S.C. § 3624(c) and thus

precluded him from receiving the full 12-month CCC placement. He sought an

administrative remedy at the institutional level on May 20, 2010 which was denied

on June 3, 2010. (Doc. 9, att. A). He filed an appeal at the regional level on June 11,

2010 which was denied on June 28, 2010. (Doc. 9, att. A). His appeal at the national

level, filed August 12, 2010, was rejected without response as untimely on August

24, 2010. (Doc. 9, att. A). 
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Administrative Exhaustion

Even before addressing the underlying merits of the petition, the respondent

contends that the petition should be dismissed due to the petitioner’s failure to

exhaust his administrative remedies. The BOP 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 may then file a formal written complaint with

the institution. Id. at § 542.13(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. Appeal to the General Counsel is

the final administrative appeal. Before seeking habeas relief, including relief

pursuant to 28 U.S.C. § 2241, prisoners must satisfy administrative exhaustion

requirements. Skinner v. Wiley, 355 F.3d 1293, 1295 (11 Cir.), cert. Denied, 124 S.Ct. th

2112 (2004); Winck v. England, 327 F.3d 1296, 1300 n. 1 (11 Cir. 2003) (recognizing th

that although 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) (citing United States v. Lucas, 898 F.2d 1554, 1556 (11 Cir.1990) th th

(requirementthatprisoners exhaust administrative procedures prior to seekingrelief

in district court is jurisdictional)); United States v. Mitchell, 845 F.2d 951, 952-53 (11th

Cir. 1988) (district court does not have jurisdiction to entertain petition seeking

sentence credit until defendant has exhausted his administrative remedies; after

final administrative decision, a dissatisfied prisoner may seek review of that

decision) (citation omitted); cf. Boz v. United States, 248 F.3d 1299, 1300 (11 Cir. th

2001) (per curiam) (Also jurisdictional is “[t]he general rule ... that a challenge to

agencyactions in the courts mustoccur after available administrative remedies have

been pursued.”) (internal quotation marks and citation omitted). Each of the

aforementioned steps is generally required to satisfy the exhaustion prerequisite.

Case No: 3:10cv375/WS/MD
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Respondent contends that the untimely filing of the final level of appeal to the

General Counsel renders petitioner’s attempt at exhaustion unsuccessful, as he

failed to follow the rules governing the filing and prosecution of his claim. See

Woodford v. Ngo, 548 U.S. 81, 92-93,126 S.Ct. 2378, 2387-2389 (2006) (the PLRA

requires proper exhaustion, and does not allow prisoner litigants to bypass

meaningful use of the administrative grievance process by filing untimely

grievances); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7 Cir. 2002) (prisoner must th

follow the rules governing filing and prosecution of his claim in order to properly

exhaust administrative remedies). 

Respondent is technically correct about the untimeliness of the petitioner’s

submission. Title 28 C.F.R. § 542.15(a) provides that the ordinary appeal time (within

30 calendar days of the date the Regional Director signed the response) may be

extended when the inmate “demonstrates a valid reason for delay.” In this case,

although the response was dated June 28, 2010, petitioner has presented an inmate

request with a response from staff member Aguardo reflecting that he did not

receive the response until July 26, 2010. (Doc. 1, att. A at 10, 11; doc. 1 at electronic

docket “ed” 41, 47 & 48). This information was presented to the General Counsel in

petitioner’s appeal and would appear to present a “valid reason for delay” as

contemplated by 28 C.F.R. § 542.15. (Id.) Nonetheless, respondent has submitted

an affidavit from Ruth Wombacher, Legal Instruments Examiner, indicating that

petitioner’s appeal was “rejected without response for being untimely on August 24,

2010.” A copy of this rejection is not in the file and petitioner himself states that he

has not yet received any such document. (Doc. 11 at 3). In fact, he contends that his

administrative remedies were exhausted because the BOP’s General Counsel’s

failure to timely respond to his request was tantamount to a denial of his last

remedy. (Doc. 1, petition at 5-6). It is not this court’s place to micro-manage the

BOP’s handling of the administrative grievance process. However, the court is not

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convinced based on the record before it that petitioner failed to exhaust his

administrative remedies, and therefore it will examine the merits of his claim.

Application of Statutory and Regulatory Framework

Previously, 18 U.S.C. § 3624(c) directed that the 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 and prepare

for the prisoner's re-entry into the community. The authority provided

by this subsection may be used to place a prisoner in home

confinement. The United States Probation System shall, to the extent

practicable, offer assistance to a prisoner during such pre-release

custody.

18 U.S.C. § 3624(c), amended, Pub.L. No. 110-199, Title II, § 251(a), 122 Stat. 657

(2008). The Second Chance Act of 2007, enacted on April 9, 2008, altered the BOP’s

authority in making RRC placement decisions under 18 U.S.C. § 3624(c). That

section now provides:

(1) In general.-The Director of the Bureau of Prisons shall, to the

extent practicable, ensure that a prisoner serving a term of

imprisonment spends a portion of the final months of that term (not to

exceed 12 months), under conditions that will afford that prisoner a

reasonable opportunity to adjust to and prepare for the reentry of that

prisoner into the community. Such conditions may include a

community correctional facility.

(2) Home confinement authority.-The authority under this

subsection may be used to place a prisoner in home confinement for

the shorter of 10 percent of the term of imprisonment of that prisoner

or 6 months.

(3) Assistance.-The United States Probation System shall, to the

extent practicable, offer assistance to a prisoner during prerelease

custody under this subsection.

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(4) No limitations.-Nothing in this subsection shall be construed

to limit or restrict the authority of the Director of the Bureau of Prisons

under section 3621.

18 U.S.C. § 3624(c)(1)-(4). The Act also amended § 3624(c) to require:

(6) Issuance of regulations.-The Directorofthe Bureau of Prisons

shall issue regulations pursuant to this subsection not later than 90

days after the date of the enactment of the Second Chance Act of 2007,

which shall ensure that placement in a community correctional facility

by the Bureau of Prisons is-

(A) conducted in a manner consistent with section 3621(b) of 1

this title;

 (B) determined on an individual basis; and

(C) of sufficient duration to provide the greatest likelihood of

successful reintegration into the community.

18 U.S.C. § 3624(c)(6) (footnote added).

The BOP amended its regulations on October 21, 2008, to provide for possible

placement in an RRC for up to twelve (12) months. See 28 C.F.R. § 570.21; 73 Fed.

Reg. 62440, 62443 (Oct. 21, 2008). Section 570.21 now provides, in pertinent part:

(a) Community confinement. Inmates may be designated to

community confinement as a condition of pre-release custody and

programming during the final months of the inmate’s term of

imprisonment, not to exceed twelve months.

(b) Home detention. Inmates may be designated to home

detention as a condition of pre-release custody and programming

during the final months of the inmate’s term of imprisonment, not to

exceed the shorter of ten percent of the inmate’s term of imprisonment

or six months.

Under § 3621(b), the BOP may designate that a prisoner be housed in a facility that it

1

determines is “appropriate and suitable, considering,” among other factors, “(1) the resources of the

facility contemplated; (2) the nature and circumstances of the offense; (3) the history and

characteristics of the prisoner; (4) any statement by the court that imposed the sentence . . . ; and (5)

any pertinent policy statement issued by the Sentencing Commission.” 18 U.S.C. § 3621(b)(1)-(5).

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28 C.F.R. § 570.21.

In order to comply with the SCA, before new policies and regulations were

drafted, the BOP issued memoranda instructing staff how to apply the statute. (Doc.

10, att. B & C). These memoranda provide that when an inmate approaches the end

of his or her term of imprisonment, the Unit Team must consider whether to refer the

inmate to a Community Corrections program to facilitate re-entry into society. See

also doc. 9, att. D, Program Statement 7310.04(12). If the Unit Team wishes to make

an institutional referral, it provides a package of information to the warden, who,

upon approval, passes the information to the appropriate Community Corrections

Manager (“CCM”). P.S. 7310.04(12)(a). The referral must be done at least 60 days

prior to the maximum recommended range or date of the CCC confinement. Id. The

CCM forwards the referrals to appropriate CCCs in an attempt to locate an

appropriate placement. P.S. 7310.04(c) and (d). The Program Statement

contemplates that not all referrals will be successfully placed. P.S. 7310.04(d). If an

inmate is accepted, the transfer date is established and entered into the inmate’s

profile. P.S. 7310.04(e).

Petitioner contends that on April 7, 2010, he was recommended for a six

month placement in a CCC, not the 12 month placement he had repeatedly

requested. He now seeks habeas relief to remedy what he contends is the

respondent’s unlawful denial of his request to be placed in a Community

Confinement Center (“CCC”), also known as a “Residential Reentry Center” (“RRC”)

or “halfway house” for the full 12 month period provided for in the SCA. He asserts

that respondent did not make an individualized and good faith determination that the

placement was “of sufficient duration to provide the greatest likelihood of

successful reintegration into the community” as required by 18 U.S.C. § 3624(c)(6). 

He further contends that respondent erroneously refused to consider him for the full

12-month placement as an incentive for his extensive participation in educational

and skills based training during his incarceration.

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In response, respondent notes that the BOP has the discretion to house the

petitioner in whatever facility it deems suitable and appropriate, and is under no duty

to either release or transfer petitioner before the expiration of his term of

imprisonment. 18 U.S.C. § 1621(b); (Doc. 9 at 10). Respondent has submitted the

affidavit of Paul Anderson , a Unit Manager who was part of the petitioner’s Unit

Team. (Doc. 9, att. E). Anderson avers that on the date of the RRC review, petitioner

was present and allowed to provide relevant information to the Unit Team for its

consideration in determining the appropriate RRC placement. (Doc. 9, att. E at 1). 

The Unit Team considered (1) the resources of the facility contemplated; (2) the

nature and circumstances of the petitioner’s offense; (3) his history and

characteristics. (Doc. 9, att. 5 at 3). Among the information considered was the 2

availability of beds at FPC Pensacola, petitioner’s offense of conviction, his nonviolent history, the fact that he was a minimum security inmate, has four children,

a bachelor’s degree, a Christian ministry degree, a current residence, a history of

owning a lucrative business, a history of working in real estate and has participated 

actively in BOP programming. (Id.). After its RRC review, the Unit Team determined

that petitioner required a 180 day RRC placement. (Doc. 9, att. E at 4). The warden

approved this recommendation, the paperwork was forwarded to the CCM’s office,

and petitioner was scheduled to transfer to an RRC on May 25, 2011, which would

afford him 178 days of RRC placement. (Doc. 9, att. E at 4). Unit Manager Anderson

asserts that the team’s consideration of petitioner’s placement was not limited to 6

months based on the April 14, 2008 memorandum or any other reason. Although 3

Anderson does not expressly so state, he appears to distinguish petitioner’s

successful work history, educational background, familysupport and having a place

The last two factors enumerated in 18 U.S.C. § 3621(b) were not considered because the sentencing

2

court had made no relevant statements. (Doc. 9, att. 5 at 4).

Respondent notes that the BOP memorandum issued on June 24, 2010 (doc. 9, att. C) removed the

3

requirement that the Regional Director approve placements longer than six months. Because petitioner’s

review took place on April 7, 2010, this would not have had an impact on his case.

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to live from the situation of other inmates, (see doc. 9, att. 5 at 4), with the

conclusion that these characteristics would justify less than the maximum RRC

placement. This affidavit contradicts petitioner’s bald, unsubstantiated assertion

that the team did not consider his individual circumstances, as required by statute

and regulations. 

Furthermore, to the extent that the petitioner asserts that he is “entitled” to

a full 12 months of RRC placement as an incentive under 42 U.S.C. § 17541, he is

mistaken. The language of the statute creates no entitlement. Instead, it provides

in relevant part:

(2) incentives for a prisoner who participates in reentry and skills

development programs which may, at the discretion of the Director, include–

(A) the maximum allowable period in a community confinement facility;

and

(B) such other incentives as the Director considers appropriate (not

including a reduction of the term of imprisonment.

42 U.S.C. § 17541(2).

Similarly, petitioner is not entitled to a twelve month RRC placement as an

incentive or reward for having completed the non-residential drug abuse program. 

The Program Statement upon which he relies, 5330.11 states in part that “[e]ach

Warden is strongly encouraged to approve inmates who successfully complete the

non-residential drug abuse program for the maximum period of RRC placement.”

5330.11, chapter 2, page 7, 2.4.8.b. (Emphasis added). This Program Statement does

not create an entitlement to the maximum RRC placement, and does not provide

petitioner with relief.

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Accordingly, it is respectfully RECOMMENDED:

That petitioner’s motion for summary judgment (doc. 11) be DENIED and the

petition for writ of habeas corpus (doc. 1) be DENIED and the clerk directed to close

the file.

At Pensacola, Florida, this 20 day of January, 2011. 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. 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: 3:10cv375/WS/MD