NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

ENRIQUE VELEZ, :

:

Petitioner, :

:

v. :

:

DONNA ZICKEFOOSE, :

:

Respondent. :

 :

Civil Action No. 10-3992 (NLH)

OPINION

Hillman, District Judge:

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, pursuant to 28 U.S.C. §

2241. The Petition seeks his speedier transfer to a community 1

correctional center relying on the Second Chance Act. See Docket

Entry No. 1. Since the Petition indicates that, at the instant

juncture, that Petitioner is not entitled to relief, the Petition

will be dismissed.

 Section 2241 provides, in relevant part, as follows: “(a) 1

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 . . . .”

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 1 of 15 PageID: 31
I. BACKGROUND

A. The Second Chance Act

The process of assignments to Community Correctional

Centers, known in the current parlance of federal prison

administration as a Residential Re-Entry Center (“RRC”), is

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

Chance Act (“Act”), Pub. L. No. 110-199, effective April 9, 2008. 

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

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

from 180 days to twelve months. The 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.

. . .

 (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 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 -

Page 2 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 2 of 15 PageID: 32
 (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). 

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).2

 Section 3621(b) states: 2

 (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 . . .

. . . Any order, recommendation, or request by a sentencing

Page 3 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 3 of 15 PageID: 33
On April 14, 2008, the BOP issued a “Memorandum for Chief

Executive Officers,” providing staff guidance for implementing

the Second Chance Act (“April 14, 2008, memo” or “Memorandum”). 

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.

April 14, 2008, memo (quoted in Strong v. Schultz, 599 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 RRC placement. See 28

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.

Page 4 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 4 of 15 PageID: 34
C.F.R. §§ 570.20-570.22. However, the regulations did not

incorporate the approval requirement cited in the April 14, 2008,

memo (i.e., the requirement for approval from the Regional

Director for pre-release RRC placement beyond six-months).3

B. Petitioner's Claims

Petitioner was convicted by a jury in the United States

District Court for the Eastern District of North Carolina of four

counts (unspecified in the Petition). On November 16, 2000, he 4

was sentenced to a term of imprisonment (also not specified in

 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.

. . .

(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.

 The docket of Petitioner’s criminal prosecution reveals 4

that these counts were: (a) bank robbery; (b) armed bank robbery;

(c) brandishing of a firearm during a crime of violence; and (d)

conspiracy to defraud the United States. See USA v. Rivera et

al., 00-cr-48 (EDNC).

Page 5 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 5 of 15 PageID: 35
the Petition). Assuming Petitioner receives all good conduct 5

time available, his release is projected to take place on August

28, 2011. See <<http://www.bop.gov/iloc2/InmateFinder

Servlet?Transaction=NameSearch&needingMoreList=false&FirstName=EN

RIQUE&Middle=&LastName=velez&Race=U&Sex=U&Age=&x=89&y=23>>.

Just as the Petition omits stating the bases for

Petitioner’s conviction or the term of his imprisonment, the

Petition is silent as to the date when Petitioner was reviewed by

the BOP for placement in an RRC. See Docket Entry No. 1. 

Moreover, the Petition is also silent as to the exact period of

RRC placement allotted to him by the BOP: rather, the Petition

merely claims that such period is “less than six months.” See

id. at 4. In sum, the only date the Court can establish from the

face of the Petition with a reasonable degree of certainty is the

date when Petitioner executed his Petition: August 2, 2010, which

appears to be only three-and-a-half-weeks prior to the beginning

of the 12-month period of RRC placement that Petitioner seeks to

obtain by means of the instant Petition.

 It appears that Petitioner was sentenced to eight years of 5

imprisonment (i.e., to two consecutive terms, one of 3 years and

another of 5 years, running concurrently with two other terms),

plus various monetary fines. See USA v. Rivera et al., 00-cr-48

(E.D.N.C.). 

Page 6 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 6 of 15 PageID: 36
Petitioner concedes that his Second Act challenges are

administratively unexhausted. See Docket Entry No. 1, at 4-5. 6

He asserts, however, that his failure to exhaust administrative

remedies should be excused because: (a) despite the date he chose

to file the instant Petition, the process of administrative

exhaustion, if undertaken now, would necessarily encroach upon a

part of the 12-month period he seeks under the Second Chance Act;

and (b) of his assumption that the BOP would rely on the BOP’s

April 14, 2008 memo to unjustifiably deny Petitioner twelve

months of RRC placement. See id. at 4-8.

II. DISCUSSION

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

requirement, a federal prisoner ordinarily may not bring a

 The BOP Administrative Remedy Program is a multi-tier 6

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. § 542.10. An inmate

must initially attempt to informally resolve the issue with

institutional staff. See 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. See 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.

Page 7 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 7 of 15 PageID: 37
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: “(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). 

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”);

Page 8 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 8 of 15 PageID: 38
Carling v. Peters, 2000 U.S. Dist. LEXIS 10288, 2000 WL 1022959,

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

subject petitioner to “irreparable injury”), 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, unless

the inmate could demonstrate cause for his failure to comply with

the procedural requirement and, in addition, actual prejudice 7

resulting from the alleged violation. See id. at 761. 

 The “cause” standard requires a showing that some external 7

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 is binding on the habeas

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

Page 9 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 9 of 15 PageID: 39
Explaining 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).

Here, Petitioner has not alleged any facts that would permit

this Court to find that exhaustion of his administrative remedies

would be futile or that his procedural default could meet the

requirements of the cause and prejudice rule. All he offered

this Court was his assertion that – at this juncture – the

process of administrative exhaustion would take place during the

period subject to the Second Chance Act reach. In other words,

Petitioner attempts to capitalize on his decision to file the

Petition right at the beginning of his last year of imprisonment. 

However, such self-serving strategy has never been rewarded by

the courts with habeas relief. See, e.g., Shoup v. Schultz, 2009

U.S. Dist. LEXIS 46955, 2009 WL 1544664 at *4-5 (D.N.J. June 2,

2009) (“Petitioner had more than an ample period of time to

Page 10 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 10 of 15 PageID: 40
exhaust his administrative remedies. He, however, elected not to

do so; rather, he waited until less than six weeks remained prior

to his eligibility period under the Second Chance Act started

running, and only then did he initiate this action. Consequently,

the calamity - if any - which Petitioner might be facing is of

his own making, and such hypothetical self-inflicted distress

cannot serve as a basis for excusing the exhaustion requirement”)

(quoting, in support, Johnson v. Hogsten, 2009 U.S. Dist. LEXIS

32085, at *5 (E.D. Ky. Apr. 15, 2009), where the court observed

that “Johnson argues that the Court should excuse him from

completing the BOP's grievance process because he will be unable

to do so before the date on which he would be entitled to

transfer to a [RRC] had the BOP properly applied the Second

Chance Act. This argument is without merit. . . . [H]ad he

properly invoked the BOP's grievance process . . . , he would

have had ample time to complete the exhaustion process.

Therefore, any injury Johnson would suffer from his inability to

complete the grievance process in time to obtain the full measure

of relief he now seeks is self-inflicted”). 

Petitioner’s reliance on the April 14, 2008, memo fares no

better than his argument based on exigency, since the memo ceased

having any legal power long before Petitioner was considered for

RRC placement. Petitioner's placement decision was made after

Page 11 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 11 of 15 PageID: 41
the effective date of the interim rule. Nevertheless, 8

Petitioner alleges that his placement decision was impermissibly

constrained by the six-month presumption contained in the

Memorandum.

However, in cases such as the one at bar, where an inmate's

RRC placement decision was made after the BOP issued the

appropriate regulations and abandoned the directive in the

Memorandum concerning the six-month presumptive placement, courts

have consistently rejected claims based on this April 14, 2008,

memo. See, e.g., Torres v. Martinez, 2009 U.S. Dist. LEXIS

705774-5 (M.D. Pa. Aug. 12, 2009) (providing a detailed

discussion of the rationale underlying such approach); see also

Lewis v. Outlaw, 2010 U.S. Dist. LEXIS 28483 (E.D. Ark. Mar. 23,

2010) (same); Ramirez v. Hickey, 2010 WL 567997 (E.D. Ky. Feb.

12, 2010) (same). Rather, the courts have consistently pointed

out that the Second Chance Act does not guarantee a one-year RRC

placement, but “only directs the Bureau of Prisons to consider

placing an inmate in a RRC for up to the final twelve months of

 For instance, in Strong v. Schultz, 599 F. Supp. 2d 556, 8

the petitioner's RRC placement decision was made on October 2,

2008, i.e., subsequent to the April 14, 2008 memo, but prior to

the October 21, 2008 enactment of the regulations by the BOP. In

light of that fact, the Strong court held that the April 14,

2008, memo was inconsistent with the Second Chance Act's

amendments to 3624(c), observing that it “impermissibly

constrains staff's discretion to designate inmates to a CCC for a

duration that will provide the greatest likelihood of successful

reintegration into the community, contrary to § 3624(c)(6)(C).”

Strong, 599 F. Supp. 2d at 563. 

Page 12 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 12 of 15 PageID: 42
his or her sentence.” Lovett v. Hogsten, 2009 U.S. App. LEXIS

28957 (6th Cir. Dec. 29, 2009); see also Travers v. Federal

Bureau of Prisons, 2009 U.S. Dist. LEXIS 110901, 2009 WL 4508585

(D.N.J. Nov. 30, 2009) (“nothing in the Second Chance Act

entitles Petitioner to a halfway house placement longer than

[that] already approved. These pre-release placement decisions

are committed, by statute, to the discretion of the Director of

the Bureau of Prisons, whose exercise of discretion is to be

guided by the enumerated considerations”); Creager v. Chapman,

2010 U.S. Dist. LEXIS 26843 (N.D. Tex. Mar. 22, 2010)(although

the inmate disagrees with her RRC placement date after

consideration of the § 3621(b) factors, this “does not establish

a constitutional violation, as nothing in the Second Chance Act

or § 3621(b) entitles [the inmate] or any other prisoner to any

guaranteed placement in a residential reentry center [and] 'the

duration of [RRC] placement is a matter to which the [BOP]

retains discretionary authority’”) (citations and quotation

omitted)); Chaides v. Rios, 2010 U.S. Dist. LEXIS 35873 (E.D.

Cal. Mar. 13, 2010)(“In sum, the BOP has discretionary authority

to transfer an inmate to an RRC at any time, after considering

the factors set forth in 18 U.S.C. § 3621(b), and has a separate

and distinct obligation to consider an inmate for transfer to an

RRC for up to twelve months prior to the inmate's release date,

Page 13 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 13 of 15 PageID: 43
after considering the factors set forth in section 3621(b)”)

(citation omitted).9

Because the face of the Petition establishes that Petitioner

failed to exhaust administrative remedies regarding his RRC

placement, and because Petitioner has not shown that his failure

to exhaust should be excused, this Court will dismiss the

Petition. 

III. CONCLUSION

For the foregoing reasons, the Petition will be dismissed as

unexhausted. Such dismissal will be without prejudice to

Petitioner’s filing of a new § 2241 petition after Petitioner

duly exhausts the administrative relief available to him. See

Lindsay v. Williamson, 271 Fed. App'x. 158, 160 (3d Cir. 2008)

(affirming summary dismissal of § 2241 petition challenging BOP's

 Indeed, if Petitioner is correct in his statement that he 9

was alloted “less than six months” of RRC placement, the

considerations based on the April 14, 2008, memo appear facially

unrelated to the analysis at hand. See Wires v. Bledsoe, 2010

U.S. Dist. LEXIS 9094 (M.D. Pa. Feb. 3, 2010). In the Wires

case, the court found that:

since the petitioner's unit team recommended

significantly less than six months (only 60 days) in a

RRC, there is no basis to infer that their discretion

was in any way constrained or chilled by the

requirement stated in the memoranda that RRC placement

beyond six months must be based on unusual or

extraordinary circumstances and must be approved by the

Regional Director.

Wires, 2010 U.S. Dist. LEXIS 9094, at *12; see also

Page 14 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 14 of 15 PageID: 44
execution of sentence “[b]ecause the District Court could

determine from the face of Lindsay's petition that he did not

exhaust his administrative remedies, a prerequisite to suit”).

An appropriate Order accompanies this Opinion.

/s/ NOEL L. HILLMAN 

NOEL L. HILLMAN

United States District Judge

At Camden, New Jersey

Page 15 of 15

Case 1:10-cv-03992-NLH Document 4 Filed 12/15/10 Page 15 of 15 PageID: 45