NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

JOHN PARRILLA, :

: Civil Action No. 11-507 (NLH)

Petitioner, :

:

v. : O P I N I O N

 :

DONNA ZICKEFOOSE, :

:

Respondent. :

________________________________:

APPEARANCES:

JOHN PARRILLA, Petitioner Pro Se

#40360-050

FCI Fort Dix

P.O. Box 2000

Fort Dix, New Jersey 08640

PAUL A. BLAINE, AUSA

OFFICE OF THE U.S. ATTORNEY

Camden Federal Bldg. & U.S. Courthouse

401 Market Street, 4 Floor th

Camden, New Jersey 08101

Attorney for Respondent

HILLMAN, District Judge

Petitioner John Parrilla (“Parrilla”), a federal prisoner

currently confined at the Federal Correctional Institution Fort

Dix in Fort Dix, New Jersey (“FCI Fort Dix”), submitted a

petition for a writ of habeas corpus, pursuant to 28 U.S.C. §

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2241, on or about January 28, 2011, seeking an Order requiring 1

that the Federal Bureau of Prisons (“BOP”) grant Parrilla “the

maximum amount of time in [an] RRC” pursuant to the Second 2

Chance Act of 2007 (“SCA”). (Petition at pg. 18). The named

respondent (hereinafter, the “Government”) is Donna Zickefoose,

Warden at FCI Fort Dix, where Parrilla was confined at the time

he filed this petition. On March 7, 2011, counsel for the

Government filed a motion to dismiss the petition on the ground

that Parrilla deliberately failed to exhaust the available

administrative remedies before commencing this action, in

contravention of controlling decisional law. Parrilla has not

responded to the Government’s motion.

Because it appears from a review of the submissions that

Parrilla did not attempt to exhaust his administrative remedies

 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 .... 

 “RRC” refers to a Residential Reentry Center, more 2

commonly known as a halfway house.

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before filing this petition, the petition will be dismissed

without prejudice accordingly.

BACKGROUND

A. The Second Chance Act

Residential Re-Entry Center (“RRC”) assignments are governed

by 18 U.S.C. § 3624(c)(1), which was amended in 2007 by the 

Second Chance Act, Pub. L. No. 110-199, effective April 9, 2008. 

In essence, the Act extended the maximum amount of time that the

Bureau of Prisons (“BOP”) may place an inmate in an RRC from 180

days to twelve months.

Regularly referred to as the “Second Chance Act,” the

amended statute provides, in pertinent part: 

(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. 

... 

(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. 

... 

(6) Issuance of regulations. The Director of the

Bureau of Prisons shall issue regulations pursuant to

this subsection not later than 90 days after the date

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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 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). As noted in the statute, the BOP was

ordered to issue regulations not later than 90 days after the

date of the enactment of the Second Chance Act, to ensure that

placement was conducted consistently with § 3621(b) of the

statute, that the determination was individualized, and that the

duration of placement was sufficient. Section 3621(b) states:

(b) Place of imprisonment. The Bureau of Prisons

shall designate the place of the prisoner’s

imprisonment. The Bureau may designate any

available penal or correctional facility that

meets minimum standards of health and habitability

established by the Bureau, whether maintained by

the Federal Government or otherwise and whether

within or without the judicial district in which

the person was convicted, that the Bureau

determines to be appropriate and suitable,

considering- 

(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- (A) concerning the purposes for which

the sentence to imprisonment was determined to be

warranted; or (B) recommending a type of penal or

correctional facility as appropriate; and 

(5) any pertinent policy statement issued by the

Sentencing Commission pursuant to Section

994(a)(2) title 28 . . .

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. . . Any order, recommendation, or request

by a sentencing court that a convicted person

serve a term of imprisonment in a community

corrections facility shall have no binding

effect on the authority of the Bureau under

this section to determine or change the place

of imprisonment.

On April 14, 2008, the BOP issued a “Memorandum for Chief

Executive Officers”, providing staff guidance for implementing

the Second Chance Act. The memorandum indicated that the BOP’s

then-existing time frame on pre-release community confinement

placement was no longer applicable and should not be followed,

that certain adjustments were necessary to the Program Statement

7310.04 concerning review of inmates for pre-release RRC

placement, and that each inmate’s pre-release RRC decision must

be analyzed and supported under the § 3621(b) factors, cited

above. Among other guidelines, the memorandum provided:

While the Act makes inmates eligible for a maximum of

12 months pre-release RRC placements, Bureau experience

reflects inmates' pre-release RRC needs can usually be

accommodated by a placement of six months or less.

Should staff determine an inmate's pre-release RRC

placement may require greater than six months, the

Warden must obtain the Regional Director's written

concurrence before submitting the placement to the

Community Corrections Manager.

BOP Memo, April 14, 2008, as cited in Strong v. Schultz, 559 F.

Supp.2d 556, 562 (D.N.J. 2009).

Subsequently, the BOP issued the required regulations,

effective October 21, 2008, setting forth procedures for

evaluating inmates’ placement decisions to RRCs or home

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detention. See 28 C.F.R. §§ 570.20-570.22. The regulations do

not include the requirement in the April 14, 2008 memo for

approval from the Regional Director for pre-release RRC placement

beyond six-months.3

 Title 28 of the Code of Federal Register, section 570.22 3

states: “Inmates will be considered for pre-release community

confinement in a manner consistent with 18 U.S.C. section

3621(b), determined on an individual basis, and of sufficient

duration to provide the greatest likelihood of successful

reintegration into the community, within the time-frames set

forth in this part.”

The time frames noted are set forth in section 570.21, which

states: 

(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.

(c) Exceeding time-frames. These time-frames may be

exceeded when separate statutory authority allows

greater periods of community confinement as a condition

of pre-release custody.

28 C.F.R. § 570.21

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B. Factual Background

Parrilla was sentenced on September 9, 2010, in the United

States District Court for the Eastern District of Pennsylvania,

to serve a 46 month prison term for attempted bank robbery in

violation of 18 U.S.C. § 2113(a). He is an inmate at FCI Fort

Dix, having been designated there by the BOP on October 12, 2010.

Parrilla’s projected good conduct release date is May 16, 2012.

(See Declaration of Tara Moran (“Moran Decl.”) at Exhibit 1).

On November 4, 2010, Parrilla’s Unit Team at FCI Fort Dix

met with him to conduct a Program Review. During the review, the

topic of RRC placement was discussed, and the Unit Team advised

Parrilla that it would recommend a 60-90 day RRC placement for

Parrilla. (Declaration of Laurie Alexander, ¶¶ 5-6). The Unit

Team’s recommendation was formalized on February 8, 2011, in the

appropriate documentation for the Warden’s signature to be used

in eventually forwarding the recommendation to the Community

Corrections Manager at the appropriate time in the future. (Id.,

¶¶ 7-8, Attachment 3).

Parrilla filed this habeas petition on January 28, 2011.

Parrilla admits in his petition that he has not filed a request

for administrative remedy before commencing this action because

he believes the administrative remedy process would be futile.

(Petition at pg. 14). On March 7, 2011, the Government filed a

motion to dismiss the petition based on Parrilla’s failure to

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exhaust his administrative remedies. The Government confirms

that Parrilla has not filed any administrative remedy request

while in BOP custody. (Moran Decl., ¶ 3, and Ex. 2).

DISCUSSION

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

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

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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 Snisky v. Pugh, the petitioner did not deny his failure

to exhaust; however, the Court excused exhaustion because the

petitioner was scheduled to be released, and his claim was

clearly without merit. See 974 F. Supp. 817, 819 (M.D. Pa.

1997), rev’d on other grounds, 159 F.3d 1353 (3d Cir. 1998). The

court recognized that exhaustion could be excused where it would

be futile. See id. In Snisky, the court found that the BOP

“unequivocally” would deny the petitioner’s relief, and he would

return to the district court after the denial. Thus, the court

addressed the claims on the merits.

Likewise, in Ferrante v. Bureau of Prisons, the court found

that if the petitioner’s claim were meritorious, he would be

released to a halfway house relatively soon; therefore,

dismissing the petition for lack of exhaustion would be futile. 

See 990 F. Supp. 367, 370 (D.N.J. 1998)(citing Snisky, 974 F.

Supp. at 819-20). Further, the court held that the petitioner’s

claim was clearly without merit, so that the exhaustion issue

need not be reached. See id. See also Fraley v. Bureau of

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Prisons, 1 F.3d 924, 925 (9th Cir. 1993)(stating that exhaustion

was not required because it was futile, as Regional Director

would “almost certainly” have denied request, and term of

imprisonment was completed).

In this case, Parrilla admits that he did not exhaust

administrative remedies. He maintains that he should be excused

from pursuing administrative relief because it would be futile. 

In particular, Parrilla asserts that there would be insufficient

time for him to complete the administrative review process before

his hypothetical twelve month RRC placement date. Further, he

contends that the futility doctrine is applicable here because

the BOP has adopted an inflexible placement policy that violates

the SCA.

The Government argues that Parrilla had ample time to

utilize the administrative remedy process after the Unit Team

made its formal recommendation on February 8, 2011. Instead,

Parrilla bypassed the administrative process purposely. 

Typically, courts have not applied the futility exception based

on a timeliness argument. See Velez v. Zickefoose, 2010 WL

5186158 at *3-4 (D.N.J. Dec. 15, 2010)(the self-serving strategy

of bypassing administrative remedies and arguing futility -

because there is insufficient time for those remedies to run

their course - has never been rewarded by the courts), quoting

Shoup v. Schultz, 2009 WL 1544664, *4-5 (D.N.J. June 2, 2009)(the

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self-described timing calamity, if any, was of the inmate’s own

making, and such hypothetical self-inflicted distress cannot

serve to excuse the exhaustion requirement). See also Winters v.

Warden, FCI Ft. Dix, 2009 WL 2928549, *3 (D.N.J. Sept. 10, 2009);

Malvestuto v. Martinez, 2009 WL 2876883, *3 (M.D. Pa. Sept. 1,

2009)(“Exhaustion of administrative remedies is not rendered

futile simply because a prisoner anticipates he will be

unsuccessful in his administrative appeals before the twelvemonth pre-release mark, which is simply a statutory maximum and

not a mandate.”).

Likewise, courts have found the futility argument unavailing

where the prisoner simply asserts that the BOP has an inflexible

placement policy and won’t consider twelve month RRC placements.

See, e.g., Levon v. Zickefoose, 2010 WL 3025135, *4 (D.N.J. July

30, 2010)(rejecting futility argument based on the inmate’s

presumption that his administrative grievance would be denied and

concluding that a full administrative record was necessary for

the Court to determine whether the RRC placement decision had

been made in accordance with the law); Craig v. Zickefoose, 2010

WL 234908, *3-4 (D.N.J. Jan. 15, 2010)(petition dismissed for

failure to exhaust where the inmate alleged that exhaustion

should be excused because he was challenging the BOP policy of

not affording more than six month RRC placements); Brown v.

Grondolsky, 2009 WL 2778437 (D.N.J. Aug. 31, 2009)(dismissing

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petition for failure to exhaust where there was no demonstrable

record of such BOP practice); Shoup, 2009 WL 1544664 at *4

(“While Petitioner invites this Court to reach an umbrella

conclusion that no exhaustion of administrative remedies is ever

required for any litigant raising a 2241 challenge on the grounds

of the Second Chance Act, this Court disinclines the invitation

and finds that such holding would fly in the face of the Third

Circuit’s teachings - as to the firmness of the exhaustion

requirement”).

Therefore, this Court sees no reason to excuse Parrilla’s

failure to exhaust administrative remedies. See Velez, 2010 WL

5186158 at *3 (“the exhaustion requirement is not excused

lightly”); Maddox v. Zickefoose, 2010 WL 2762242, *4 (D.N.J. July

12, 2010); Gardner v. Grondolsky, 2009 WL 5103209, *2-3 (D.N.J.

Dec. 17, 2009). Accordingly, the Court will dismiss the Petition

without prejudice to the filing of a new § 2241 petition after

Parrilla exhausts administrative relief.

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CONCLUSION

For the foregoing reasons, Respondent’S motion to dismiss

the petition shall be granted and the petition for a writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2241, is hereby

dismissed without prejudice for petitioner’s failure to exhaust

administrative remedies. An appropriate Order accompanies this

Opinion.

 /s/ Noel L. Hillman 

NOEL L. HILLMAN

United States District Judge

Dated: September 30, 2011

At Camden, New Jersey

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