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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ROBERT LYMAN BREHM,

Petitioner,

vs. Case No. 5:11cv107/RH/EMT

PAIGE AUGUSTINE, WARDEN,

Respondent.

___________________________________/

REPORT AND RECOMMENDATION

This cause is before the court on a petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2241 (doc. 1). Warden Augustine filed a response (doc. 10), and Petitioner filed a reply

(doc. 12). 

This matter is referred to the undersigned magistrate judge for report and recommendation

pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(b). After careful consideration of the issues

raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for

the disposition of this matter. It is further the opinion of the undersigned that the pleadings and

attachments before the court show that Petitioner is not entitled to habeas relief. 

I. BACKGROUND

Petitioner is a federal inmate who was sentenced in the United States District Court for the

Southern District of Florida on June 7, 2005, to two concurrent 120-month terms of imprisonment

for importation of heroin and possession with intent to distribute heroin, in violation of 21 U.S.C.

§§ 841(a)(1), 952(a) (doc. 10-1, attach. at 35–40).1

 Petitioner is scheduled for release via good

conduct time on November 4, 2012 (doc. 10-1, attach. 6, Declaration of Jeremy Jenkins ¶ 4). It is

anticipated he will be granted an early release, pursuant to 18 U.S.C. § 3621(e)(2)(B), on July 16,

1

 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those the parties may have assigned.

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2012, upon successful completion of the Residential Drug Abuse Program (“RDAP”) (doc. 10-1,

attach. 4, attach. 6, Jenkins Decl. ¶ 4). 

In the instant petition, Petitioner asserts two grounds for relief. First, he claims he is entitled

to immediate release because he satisfied the judgment of conviction and sentence by posting a

bond, specifically “a [sic] equivalent $250,000.00 corporate surety bond,” with the clerk of court

in the Southern District (doc. 1 at 3; doc. 1-1 at 2–3). Second, he contends the federal Bureau of

Prisons (“BOP”) improperly delayed his eligibility for RDAP and, therefore, his early release, by

determining he was unqualified to participate in RDAP on March 19, 2010 (doc. 1 at 4; doc. 1-1 at

4–5, 13). He was subsequently deemed qualified and entered RDAP on March 28, 2011 (see doc.

10-1, attachs. 3, 4).

 Respondent contends Petitioner’s first claim, that he is entitled to release for posting a

corporate surety bond, is without merit (doc. 10 at 4–6). Respondent argues Petitioner second claim,

that he was wrongly delayed participation in RDAP, is unexhausted (id. at 6–8). Further, the claim

is without merit because the delay in Petitioner’s enrollment in RDAP was due to his failure to

submit proper documentation, which was not an abuse of discretion on the BOP’s part (id. at 8; doc.

1-1, attach. 2).

II. ANALYSIS

A. Ground one: Petitioner should be released from custody because he posted a

corporate surety bond

Petitioner states on November 8, 2010, he deposited “a bond with a face value of

$250,000.00” with the clerk of court in the Southern District, in satisfaction of an order issued by

the district court on October 15, 2003 (prior to imposition of the judgment of conviction and

sentence) requiring him to post a bond in that amount for his pre-trial release from custody (doc. 12

at 5). Petitioner states he has offered to settle a pending federal tort claim for $260,000.00 (id. at

9). He states that upon the Department of Justice’s acceptance of his offer, $260,000.00 will be

deposited into his inmate account, and $250,000.00 of that amount will be encumbered by the

Southern District’s security interest in the claim, which Petitioner has assigned to it (id.). In support

of his claim, Petitioner submitted a copy of an Order on Initial Appearance, rendered October 15,

2003, stating he shall be released from custody upon the posting of a $250,000.00 appearance bond

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(doc. 1-1 at 7–8). He argues the failure to release him, upon his receiving the tort claim settlement,

would constitute a breach of contract. Respondent submitted a copy of the bond documents

submitted by Petitioner to the clerk of court in the Southern District, which included a copy of the

tort claim he filed on June 11, 2010 (doc. 10-1 at 16–42).

Petitioner’s claim is without merit. The district court’s order authorizing Petitioner’s pretrial release upon his posting an appearance bond did not authorize his post-conviction release prior

to expiration of his sentence. Therefore, Petitioner has failed to show he is entitled to habeas relief

on this claim.

B. Ground two: Petitioner is entitled to earlier release because the BOP improperly

delayed his enrollment in RDAP

Respondent contends Petitioner failed to exhaust his administrative remedies as to this claim

(doc. 10 at 6–8). 

It is well established that prisoners must exhaust administrative remedies before habeas relief

may be granted, including relief pursuant to § 2241. Skinner v. Wiley, 355 F.3d 1293, 1295 (11th

Cir. 2004); Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632, 634 (2d Cir. 2001)

(addressing § 2241 petition); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (addressing § 2241

petition); Little v. Hopkins, 638 F.2d 953, 953–54 (6th Cir. 1981) (discussing habeas petitions in

general); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 850–51 (3d Cir. 1976) (same);

Willis v. Ciccone, 506 F.2d 1011, 1014–15, n.3 (8th Cir. 1974) (same). “Exhaustion of

administrative remedies is jurisdictional” when a petition for writ of habeas corpus is brought

pursuant to § 2241 for release from a federal prison. Winck v. England, 327 F.3d 1296, 1300 n.1

(11th Cir. 2003) (recognizing 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 (11th Cir. 1992)

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

exhaust administrative procedures prior to seeking relief 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

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decision) (citation omitted). Also jurisdictional is “[t]he general rule . . . that a challenge to agency

actions in the courts must occur after available administrative remedies have been pursued.” Boz

v. United States, 248 F.3d 1299, 1300 (11th Cir. 2001) (per curiam) (internal quotation marks and

citation omitted).

The BOP provides a four-level administrative grievance procedure for prisoner complaints. 

28 C.F.R. § 542.10–542.15; United States Dep’t of Justice, Federal Bureau of Prisons, Program

Statement No. P1330.16. Initially, prisoners must seek resolution of issues through informal

grievances. 28 C.F.R. § 542.13(a); BOP Program Statement P1330.16, pp. 4–5. If unsuccessful,

an inmate may then file a formal written complaint with the warden of his institution on the BP-9

form. 28 C.F.R. §§ 542.13(a), 542.14; BOP Program Statement P1330.16, pp. 5–6. An inmate who

is not satisfied with the warden’s response may appeal to the Regional Director on the BP-10 form. 

28 C.F.R. § 542.15; BOP Program Statement P1330.16, pp. 7–8. Finally, an inmate may appeal the

Regional Director’s response to the General Counsel for the BOP by submitting an appeal on a BP11 form. Id. 

BOP regulations further provide that the administrative remedy coordinator at any level may

reject and return to an inmate without response a request or appeal that does not meet the

requirements of the administrative remedy program. 28 C.F.R. § 542.17(a); BOP Program

Statement P1330.16, p. 9. When a submission is rejected, the inmate must be provided a written

notice explaining the reason for rejection. 28 C.F.R. § 542.17(b); BOP Program Statement

P1330.16, p. 9. If the defect on which the rejection is based is correctable, the notice must inform

the inmate of a reasonable time extension within which to correct the defect and resubmit the request

or appeal. Id. The BOP utilizes an index system, or SENTRY, to document when an inmate request

or appeal is received, the identification number assigned, the subject of the request or appeal, the

response, and the date of response. BOP Program Statement P1330.16, pp. 10–13. Inmates may

request access to the administrative remedy indexes and responses. 28 C.F.R. § 542.19; BOP

Program Statement P1330.16, p. 13.

In support of Respondent’s exhaustion argument, Respondent submitted an affidavit of Mary

Kiwanuka, an attorney for the BOP who has access to the BOP’s records and is familiar with the

BOP’s administrative remedy procedures for inmates (doc. 10-1, attach. 1, Declaration of Mary

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Kiwanuka ¶ 1). Ms. Kiwanuka describes the BOP’s administrative remedy program as set forth

supra (Kiwanuka Decl. ¶ 3). She states an inmate must pursue each step to complete the

administrative remedy process (id., ¶ 4). Ms. Kiwanuka states she reviewed Petitioner’s BOP

records, which show that Petitioner submitted only one request for administrative remedy addressing

his RDAP participation, that is, a BP-9 request to the warden dated April 9, 2010 (id., ¶¶ 2, 5). Ms.

Kiwanuka states Petitioner’s request was rejected without a response the same day, for failure to

provide evidence of an attempt at informal resolution (id., ¶ 5). She states Petitioner was instructed

to resubmit the request with appropriate documentation within five days, but he failed to do so (id.). 

Ms. Kiwanuka states Petitioner did not properly file administrative remedies at all three levels of

the administrative remedies process; therefore, he did not properly complete the process (id., ¶ 6).

In response to Respondent’s exhaustion argument, Petitioner states he made a good faith

effort to exhaust administrative remedies (doc. 12 at 3). He states he appealed to the Regional

Director and to the General Counsel, but did not receive a response (id.). He additionally argues

the court should waive the exhaustion requirement in this case, because exhaustion would be futile

(id. at 4).

Petitioner has failed to provide any evidence to support his assertion that he filed an appeal

to the Regional Director and the General Counsel. Further, records of any administrative requests

and appeals he filed were available to him and could have been submitted in support of his

argument. Therefore, the undersigned concludes Petitioner failed to demonstrate he properly

exhausted his administrative remedies prior to filing the instant habeas action. Moreover, Petitioner

failed to show that use of the administrative remedy process would have been futile had he promptly

availed himself of it. Therefore, the court is without jurisdiction to review the merits of Petitioner’s

claim that the BOP abused its discretion by delaying his participation in RDAP.

Accordingly it is respectfully RECOMMENDED:

1. That Petitioner’s claim that he is entitled to release from custody because he posted

a bond be DENIED with prejudice.

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2. That Petitioner’s claim that he is entitled to earlier release because the BOP

improperly delayed his enrollment in RDAP be DENIED without prejudice, as this court does not

have jurisdiction to consider the merits of Petitioner’s claim due to his failure to exhaust his

administrative remedies prior to filing his federal habeas action.

At Pensacola, Florida this 11th day of October 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. 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

any objections shall be served upon any 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 (11th Cir. 1988).

Case No. 5:11cv107/RH/EMT

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