NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

ERIC M. ORTIZ, :

:

Petitioner, :

:

v. :

:

DONNA ZICKEFOOSE, :

:

Respondent. :

 :

Civil No. 11-0037 (RMB)

MEMORANDUM OPINION

Bumb, District Judge:

Petitioner Eric Milton Ortiz (“Petitioner”), a prisoner

currently confined at the Federal Correctional Institution at

Fort Dix, New Jersey, has submitted a petition for a writ of

habeas corpus (“Petition”),1 pursuant to 28 U.S.C. § 2241. 

The sole Respondent is warden Donna Zickefoose. 

While Petitioner asserts, in his Petition-form, that his

projected release date is July 15, 2012, the website of the

Bureau of Prisons (“BOP”) indicates that Petitioner’s current

projected release date is August 8, 2012. See <<http://www.bop.

gov/iloc2/InmateFinderServlet?Transaction=NameSearch&needingMoreL

1

 The Petition appears to be one of those pre-printed forms

that were created and copied/circulated in federal correctional

facilities, and which are utilized by federal inmates who merely

write in their name, their warden’s name, their sentence and

projected release date, and then just sign and date these preprinted form, leaving the remainder of this nineteen-page

production unchanged and without any other shred of personal

information, such as the date of alleged administrative inquiry,

the date of administrative responses received, etc. 

Case 1:11-cv-00037-RMB Document 2 Filed 07/12/11 Page 1 of 11 PageID: 21
ist=false&FirstName=ERIC+&Middle=&LastName=ORTIZ&Race=U&Sex=U&Age

=&x=75&y=19>>. 

The principal issue raised in the Petition is whether the

BOP violated Petitioner’s rights by, allegedly, denying his

request to be considered (for the up-to-twelve-month transfer to

an RRC, pursuant the Second Chance Act, codified at 18 U.S.C. §

3624) sooner than 19 months prior to the date of Petitioner’s

release. To that effect, the Petition, by presenting a long

chain of speculations, asserts the following hypothesis: 

(a) if Petitioner is considered by the BOP for such transfer

only 17 to 19 months prior to his release and not sooner;

and, in addition, 

(b) if the BOP denies Petitioner transfer for the maximum period

of 12 months allowed under the Second Chance Act; and, in

addition, 

(c) if the BOP finds that Petitioner should be transferred to an

RRC only for the period of “x” months, which is less than

the maximum 12-month period allowed under the statute; and,

in addition, 

(d) if Petitioner, being dissatisfied with such BOP’s

determination, starts the process of exhausting his

administrative remedies;2 and, in addition, 

2

 The BOP Administrative Remedy Program is a three-tier

process that is available to inmates confined in institutions

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(e) if Petitioner’s request for transfer to RRC for a period of

12 months or for a period longer than “x” months (but

shorter than 12 months) is denied at the level of informal

resolution and by his warden; and, in addition, 

(f) if the warden’s determination is affirmed by the Regional

office of the BOP; and, in addition, 

(g) if the Regional Office’s affirmance is affirmed by the

Central Office of the BOP; and, in addition, 

(h) if Petitioner, being dissatisfied with the outcome of his

administrative proceedings, files a habeas petition with the

district having jurisdiction over the facility where

Petitioner would be confined at that point in time; and, in

addition, 

operated by the BOP for “review of an issue which relates to any

aspect of their confinement.” 28 C.F.R. § 542.10. An inmate

must initially attempt to informally resolve the issue with

institutional staff. 28 C.F.R. § 542.13(a). If informal

resolution fails or is waived, an inmate may submit a BP-9

Request to “the institution staff member designated to receive

such Requests (ordinarily a correctional counsel)” within 20 days

of the date on which the basis for the Request occurred, or

within any extension permitted. 28 C.F.R. § 542.14. An inmate

who is dissatisfied with the Warden's response to his BP-9

Request may submit a BP-10 Appeal to the Regional Director of the

BOP within 20 days of the date the Warden signed the response. 

See 28 C.F.R. § 542.15(a). The inmate may appeal to the BOP's

General Counsel on a BP-11 form within 30 days of the day the

Regional Director signed the response. See id. Appeal to the

General Counsel is the final administrative appeal. See id. If

responses are not received by the inmate within the time allotted

for reply, “the inmate may consider the absence of a response to

be a denial at that level.” 28 C.F.R. § 542.18.

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(i) if the district court presiding over such hypothetical

action finds that the BOP rendered its determination in

violation of a certain statute; and, in addition, 

(j) if such presiding court elects to grant Petitioner habeas

relief in the form of an order directing Petitioner’s

transfer to an RRC for the maximum period allowed under the

Second Chance Act, 

then Petitioner might be unable to enjoy the entirety of such

presiding court’s order fully because, by the time such presiding

court might rule in favor of Petitioner, Petitioner might be less

then 12 months away from his release. See, generally, Docket

Entry No. 1. 

Therefore, Petitioner asserts that he is entitled for

evaluation by the BOP sooner than 19 months prior to expiration

of his sentence; in connection with that argument, Petitioner

asserts that he should be excused from exhausting his challenges

to the speculative insufficiency of the period of his placement

in an RRC because such exhaustion would be “futile.” See id. 

In other words: (a) Petitioner asks the Court to direct the BOP

to tell this Court how BOP would evaluate Petitioner for a Second

Chance Act transfer and tell so sooner than 19 months prior to

Petitioner’s release;3

 and (b) Petitioner asks that the Court

3 

If an inmate requests transfer to an RRC prior to the

pre-release time frame of 12-months from release, staff

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would excuse Petitioner’s failure to exhaust BOP’s not-yet-issued

determination in the event it turns out that such determination

is not to Petitioner’s liking.

To add to the mystery of the Petition at hand, Petitioner

executed it on January 1, 2011, see id. at 19, while conceding

that – under the BOP’s policy – he would necessarily be subject

to the BOP’s Second Chance Act evaluation 17-to-19 months prior

to his release. However, Petitioner’s asserted release date,

i.e., July 15, 2012, see id. at 1, indicates that Petitioner’s

“19-months-prior-to-release” point in time occurred on December

15, 2010, i.e., half-a-month prior to Petitioner’s execution of

his Petition (and, thus, Petitioner might have already had a

determination made by the BOP at the time he executed his

Petition). 

must individually consider the request, just as they

would any other request for lower security transfer. 

There is no need, however, to immediately perform the

individualized review at the moment it is submitted.

Rather, the inmate should be informed that his/her

request will be fully reviewed in conjunction with the

next scheduled Program Review. When informing inmates

of the timing for review of transfer requests, it is

vitally important that staff not inform the inmate

(either orally or in writing) that he/she is ineligible

for transfer to an RRC. Telling an inmate that he/she

is ineligible for RRC placement is the same as

automatically denying the inmate from even being

considered for such placement, and is not in accord

with Bureau policy.

Hickman v. Zickefoose, 2011 U.S. Dist. LEXIS 51363, at *8-9

(D.N.J. May 12, 2011) (quoting BOP Memorandum of November 14,

2008).

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Or, simply put, Petitioner’s request for an order directing

the BOP to evaluate Petitioner sooner than 19 months prior to his

release was moot even before Petitioner executed his Petition.4

Stripped of this temporal non sequitur issue, the Petition

presents nothing but a garden variety request for an excuse from

administrative exhaustion of an administrative decision not

pleading an inmate; this request for excuse from exhaustion is

accompanied by nothing but Petitioner’s self-serving assertion

that such exhaustion would be futile. 

Notably, Petitioner does not assert that the BOP refused to

exercise its discretion to consider him for RRC placement or that

the BOP employed an improper analysis during such consideration;

all he expresses is his abstract displeasure with the outcome,

which Petitioner wraps in exponential layers of hypotheticals.5

To the degree Petitioner wished to assert that exhaustion of

administrative remedies would necessarily be futile because the

administrative process might take a few months and court

4 Petitioner has no standing to sue on behalf of those

inmates who are more than 19 months away from their release date

and who might wish to have these evaluation conducted sooner than

19 months prior to their release. Moreover, this Court notes, in

dictum, that Petitioner states no basis for constitutional

challenges to the currently the regulatory regime directing

evaluation of inmates not sooner than 19 months prior to their

release, and this Court – on its own – is not aware of any valid

basis for such constitutional challenge. 

5 A legal “adjudication cannot rest on any such ‘house that

Jack built’ foundation.” Salyer Land Co. v. Tulare Lake Basin

Water Storage Dist., 410 U.S. 719, 731 (1973).

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proceedings resulting from a following habeas application (that

Petitioner might file) might also take a few months, Petitioner’s

position is wholly without merit: it is entirely speculative and,

in addition, the time frame of administrative and court

proceedings has nothing to do with futility of administrative

review: indeed, administrative proceedings might prove fruitful

to an inmate and provide him/her with the remedy (s)he seeks even

at the very first, informal, level of administrative process,

hence rendering administrative appeals and habeas proceedings

wholly unnecessary, and the time frame of these administrative

appeals and court habeas proceedings wholly irrelevant. 

Moreover, if – at the time of Petitioner’s execution of his

Petition – Petitioner was not evaluated by the BOP, he has no

standing to challenge the substance of that not-yet-rendered BOP

determination, see Stanko v. Obama, 393 Fed. App’x 849 (3d Cir.

2010) (the inmate lacked standing to challenge the decision,

which had not yet been made regarding the inmate's eligibility

for placement in an RRC, because any injury based on the

application of the Second Chance Act to him was speculative); all

Petitioner can challenge, under the existing regulatory regime,

is the fact that the BOP failed to evaluate him within 19-to-17-

months prior to his release, but his Petition makes it abundantly

clear that Petitioner does not make such assertion.

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That leaves the Court solely with: (a) Petitioner’s

hypothetical displeasure with the length of the period he might

be designated to be housed at an RRC; and (b) Petitioner’s selfserving position that he need not administratively exhaust the

challenges embodying this displeasure. 

However, the Court of Appeals for the Third Circuit and the

district courts in this Circuit invariably agreed that

administrative exhaustion of habeas challenges by federal inmates

is excused only in rare circumstances.

Although 28 U.S.C. § 2241 contains no statutory exhaustion

requirement, a federal prisoner ordinarily may not bring a

petition for writ of habeas corpus under 28 U.S.C. § 2241,

challenging the execution of his sentence, until he has exhausted

all available administrative remedies. See, e.g., Callwood v.

Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson, 682

F.2d 1050, 1052 (3d Cir. 1981); Arias v. United States Parole

Comm'n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v. Alldredge, 481

F.2d 303, 306 (3d Cir. 1973). The exhaustion doctrine promotes a

number of goals: it is “(1) allowing the appropriate agency to

develop a factual record and apply its expertise facilitates

judicial review; (2) permitting agencies to grant the relief

requested conserves judicial resources; and (3) providing

agencies the opportunity to correct their own errors fosters

administrative autonomy.” Goldberg v. Beeler, 82 F. Supp. 2d

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302, 309 (D.N.J. 1999), aff'd, 248 F.3d 1130 (3d Cir. 2000); see

also Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761 (3d

Cir. 1996). Although exhaustion of administrative remedies is

not required where exhaustion would not promote these goals, see,

e.g., Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998)

(exhaustion not required where petitioner demonstrates futility);

Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988)

(exhaustion may be excused where it “would be futile, if the

actions of the agency clearly and unambiguously violate statutory

or constitutional rights, or if the administrative procedure is

clearly shown to be inadequate to prevent irreparable harm”), the

exhaustion requirement is not excused lightly. Indeed, it has

been long established that an inmate's unjustified failure to

pursue administrative remedies results in procedural default

warranting decline of judicial review. The Court of Appeals

addressed this issue in Moscato, 98 F. 3d 757, the case where an

inmate filed a § 2241 petition after the Central Office had

denied his administrative appeal as untimely. The Court of

Appeals pointed out that the inmate's failure to satisfy the time

limits of the BOP's administrative remedy program resulted in a

procedural default, see id. at 760, rendering judicial review of

his habeas claim unwarranted, that is, unless the inmate can

demonstrate cause for his failure to comply with the procedural

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requirement6 and, in addition, actual prejudice resulting from

the alleged violation. See id. at 761. 

Clarifying the rationale of its decision, the Moscato Court

explained that application of the cause and prejudice rule to

habeas review of BOP proceedings insures that prisoners do not

circumvent the agency and needlessly swamp the courts with

petitions for relief, and promotes such goals of the exhaustion

requirement, such as allowing the agency to develop a factual

record and apply its expertise facilitates judicial review,

conserving judicial resources, and fostering administrative

autonomy by providing the agency with an opportunity to correct

its own errors. See id. at 761-62; see also Gambino, 134 F.3d at

171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988). 

Other federal courts agree with the position of the Court of

Appeals for the Third Circuit. As the Court of Appeals for the

Fourth Circuit aptly noted,

6

 The “cause” standard requires a showing that some

external objective factor impeded the inmate's efforts to comply

with the procedural bar. See Murray v. Carrier, 477 U.S. 478,

488 (1986); United States v. Pelullo, 399 F. 3d 197, 223 (3d Cir.

2005) (“Examples of external impediments . . . include

interference by officials”) (citations and internal quotation

marks omitted); Johnson v. Pinchak, 392 F.3d 551, 563 (3d Cir.

2004) (“cause” typically involves a novel constitutional rule, a

new factual predicate, hindrance by officials in complying with

the procedural rule, or akin). In contrast, a procedural default

caused by ignorance of the law or facts, or my mere litigant’s

inaction and his election to sit on his rights is binding on the

habeas petitioner. See Murray, 477 U.S. at 485-87.

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As a general rule, in the absence of “exceptional

circumstances where the need for the remedy afforded by

the writ of habeas corpus is apparent,” . . . courts

“require[ ] exhaustion of alternative remedies before a

prisoner can seek federal habeas relief.” . . . While

habeas corpus is “always available to safeguard the

fundamental rights of persons wrongly incarcerated,” it

“is the avenue of last resort.”

Timm v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010) (citations

omitted).

Here, Petitioner did not assert any reason for his failure

to exhaust his administrative remedies; all that his Petition

vaguely hints at is his hypothetical displeasure with a period of

RRC housing that might be determined by the BOP; he adds to this

hypothetical displeasure his self-serving speculative beliefs

about the time frame of administrative process and the speed,

with which federal courts move their dockets. However, the sum

of such assertions cannot amount to a valid reason for excusing

Petitioner’s procedural default. 

Therefore, the Petition will be dismissed, without prejudice

to Petitioner’s filing a duly exhausted petition in a new and

separate habeas action.

An appropriate Order accompanies this Opinion.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: July 12, 2011 

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