NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JUAN CARLOS ROSADO, :

Civil Action No. 10-6306 (JBS)

Petitioner, :

v. : OPINION

WARDEN DONNA ZICKEFOOSE, :

Respondent. :

APPEARANCES:

Paul S. Brenner, Esq. Mark Christopher Orlowski

401 Broadway Assistant U.S. Attorney

Suite 306 402 East State Street, Room 430 

New York, NY 10013 Trenton, NJ 08608

Counsel for Petitioner Counsel for Respondent

SIMANDLE, District Judge:

Petitioner Juan Carlos Rosado, a prisoner currently confined

at the Federal Correctional Institution at Fort Dix, New Jersey,

has submitted, through counsel, a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241, challenging a decision that 1

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

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he is not eligible for reduction of his sentence upon completion

of the Federal Bureau of Prisons Residential Drug Abuse Treatment

Program.

This matter is presently before the Court pursuant to

Respondent’s filing of a Motion [9] to Dismiss for failure to

exhaust administrative remedies. Petitioner has responded and

this matter is now ready for decision.

I. BACKGROUND

On January 13, 2010, Petitioner was sentenced in the United

States District Court for the Southern District of New York to a

36-month term of imprisonment. See United States v. Rosado,

Criminal No. 09-0105 (S.D.N.Y.). The sentence also contained a

recommendation that Petitioner participate in a drug abuse

treatment program while incarcerated. Petitioner’s present

projected release date is September 19, 2012.

Petitioner has participated in the Bureau of Prisons

Residential Drug Abuse Treatment Program, which includes as an

incentive eligibility for early release for certain prisoners,

subject to the discretion of the Director of the Bureau of

Prisons. During Petitioner’s participation in the RDAP, he was 2

 The incentive provision reads: 2

The period a prisoner convicted of a nonviolent offense

remains in custody after successfully completing a

treatment program may be reduced by the Bureau of

Prisons, but such reduction may not be more than one

year from the term the prisoner must otherwise serve.

2

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advised by a local-level official that he would not be eligible

for early release, due to a prior Youthful Offender adjudication

in the state of New York for assault with intent to cause serious

physical injury.

Petitioner did not pursue any administrative remedies to

challenge this decision. Instead, Petitioner filed this Petition

for writ of habeas corpus, challenging the local-level

determination that he was not eligible for early release. After

this action was filed, and while Petitioner was still

participating in the RDAP, Petitioner’s counsel sent a letter to

the Bureau of Prisons Grand Prairie Office Complex in Texas,

asking for a reconsideration of the decision. In response, an

attorney with the Department of Justice advised Petitioner’s

counsel that the issue had been reviewed and that no change had

been made in the decision. In addition, Petitioner’s counsel was

advised that if Petitioner wished to appeal the determination,

“the proper course of action is to file an administrative remedy

in accordance with 28 C.F.R. § 542.10 et. seq.” (Motion to

Dismiss, Decl. of Tara Moran, Ex. 4, Letter of Christina Saetta

Clark.) Again, Petitioner did not pursue any administrative

18 U.S.C. § 3621(e)(2)(B)).

By regulation, as an exercise of the Director’s discretion,

certain categories of inmates are ineligible for early release,

including inmates who have a prior conviction for aggravated

assault. See 28 C.F.R. § 550.55.

3

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appeals of the local-level determination that he was not eligible

for early release.

The record presented to this Court does not reflect whether,

or when, Petitioner completed the RDAP.

II. ANALYSIS

Respondent has moved to dismiss the Petition because

Petitioner has failed to exhaust his administrative remedies. In

response, Petitioner asserts that it is not necessary to exhaust

his administrative remedies because the issue presented is a

legal, not a factual, issue.

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); 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:

(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 302, 309 (D.N.J. 1999), aff’d,

248 F.3d 1130 (3d Cir. 2000). See also Moscato v. Federal Bureau

4

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of Prisons, 98 F.3d 757, 761 (3d Cir. 1996). Nevertheless,

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”); Carling v. Peters, 2000 WL 1022959,

*2 (E.D. Pa. 2000) (exhaustion not required where delay would

subject petitioner to “irreparable injury”).

In general, the BOP Administrative Remedy Program is a

multi-tier process that is available to inmates confined in

institutions operated by the BOP for “review of an issue which

relates to any aspect of their confinement.” 28 C.F.R. 3

§ 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

 “This rule does not require the inmate to file under the 3

Administrative Remedy Program before filing under statutorilymandated procedures for tort claims (see 28 CFR 543, subpart C),

Inmate Accident Compensation claims(28 CFR 301), and Freedom of

Information Act or Privacy Act requests (28 CFR 513, subpart

D),[ or other statutorily-mandated administrative procedures].” 

67 F.R. 50804-01, 2002 WL 1789480 (August 6, 2002).

5

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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. 

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. Id. Appeal to the 4

General Counsel is the final administrative appeal. 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.

Contrary to Petitioner’s argument, there is no blanket

exception to the exhaustion requirement for “legal” issues. To

the extent the lowest level official has made an erroneous

“legal” determination, review by higher level officials,

including the general counsel of the Bureau of Prisons, would

permit the agency to apply its expertise to the issue presented

and to correct any such error. Similarly, exhaustion of

administrative remedies would permit development of a full

administrative factual and legal record as to all reasons why

 Response times for each level of review are set forth in 4

28 C.F.R. § 542.18.

6

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Petitioner might be eligible or ineligible for early release. 

Awaiting creation of a complete administrative record would

conserve judicial resources. Here, certainly, exhaustion of

administrative remedies would promote the goals of the exhaustion

requirement.

III. CONCLUSION

For the reasons set forth above, the Motion to Dismiss will

be granted and the Petition will be dismissed without prejudice

for failure to exhaust administrative remedies. An appropriate

order follows.

s/ Jerome B. Simandle 

Jerome B. Simandle

United States District Judge

Dated: December 12, 2011

7

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