UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RICHARD EUGENE WARREN, :

Civil Action No. 11-0809 (RMB)

Petitioner, :

v. : OPINION

DONNA ZICKEFOOSE, et al., :

Respondents. :

APPEARANCES:

Petitioner pro se Attorney for Respondents

Richard Eugene Warren Elizabeth Ann Pascal

#70874-083 U.S. Department of Justice

FCI Phoenix Office of the U.S. Attorney

37910 N. 45th Avenue 401 Market Street

Phoenix, AZ 85086 P.O. Box 2098

Camden, NJ 08101 

BUMB, District Judge

Petitioner Richard Eugene Warren initially filed this matter

in the United States District Court, District of South Carolina. 

Upon Report and Recommendation by Joseph R. McCrorey, United

States Magistrate Judge, the matter was transferred to the

District of New Jersey because Petitioner had been transferred to

a federal correctional facility within this district. Petitioner

has subsequently been transferred out of the district. 

Because it appears from a review of the Petition that Petitioner

is not entitled to relief, the Petition will be dismissed. See

28 U.S.C. § 2243.

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I. BACKGROUND

Petitioner brings this section 2241 habeas corpus action as

a challenged to the Bureau of Prisons Inmate Financial

Responsibility Program (“IFRP”). Specifically, Petitioner states

that he “was forced to execute a IFRP contract by counselor

Michael Cox under the threat of being placed on IFRP refusal

status” if he did not comply. He states that he provided his

signature under duress and that his account now has an ongoing

debit of $25.00. He seeks entry of an order placing him on “IFRP

exempt status,” seeks a restraining order against retaliation,

and seeks reimbursement of the funds previously deducted from his

account. 

In their response, Respondents provided the Court with

information regarding a substantially similar petition filed by

Petitioner on May 21, 2010 in the United States District Court

for the District of South Carolina. That petition, which

concerned the same issues presented here, was dismissed without

prejudice on September 22, 2011 because Petitioner failed to

exhaust his administrative remedies. 

II. LEGAL STANDARD

Section 2241 provides in relevant part:

(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.

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(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 ... .

A habeas corpus petition is the proper mechanism for a

prisoner to challenge the “fact or duration” of his confinement,

Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973), including

challenges to prison disciplinary proceedings that affect the

length of confinement, such as deprivation of good time credits,

Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v. Balisok,

520 U.S. 641 (1997). See also Wilkinson v. Dotson, 125 S.Ct.

1242 (2005). Habeas corpus is an appropriate mechanism, also,

for a federal prisoner to challenge the execution of his

sentence. See Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir.

2001); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990). 

In addition, where a prisoner seeks a “quantum change” in the

level of custody, for example, where a prisoner claims to be

entitled to probation or bond or parole, habeas is the

appropriate form of action. See, e.g., Graham v. Broglin, 922

F.2d 379 (7th Cir. 1991) and cases cited therein.

“Section 2241 is the only statute that confers habeas

jurisdiction to hear the petition of a federal prisoner who is

challenging not the validity but the execution of his sentence.” 

Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001) (citations

omitted). A petition for a writ of habeas corpus under 28 U.S.C.

§ 2241 in the district where the prisoner is confined provides a

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remedy “where petitioner challenges the effects of events

‘subsequent’ to his sentence.” Gomori v. Arnold, 533 F.2d 871,

874 (3d Cir.), cert. denied, 429 U.S. 851 (1976) (finding

jurisdiction where prisoner challenged erroneous computation of

release date). See also Vega v. United States, 493 F.3d 310 (3d

Cir. 2007) (finding jurisdiction where prisoner challenged BOP’s

failure to give credit for time served prior to federal

sentence); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1991)

(finding jurisdiction where prisoner challenged BOP refusal to

decide whether to designate state prison as a place of serving

federal sentence); Soyka v. Allredge, 481 F.2d 303 (3d Cir. 1973)

(finding jurisdiction where petitioner alleged a claim for credit

for time served prior to federal sentencing).

Convicted and sentenced prisoners retain the protections of

the Due Process Clause of the Fifth and Fourteenth Amendments

that the government may not deprive them of life, liberty, or

property without due process of law. See Wolff v. McDonnell, 418

U.S. 539, 556 (1974); Haines v. Kerner, 404 U.S. 519 (1972);

Wilwording v. Swenson, 404 U.S. 249 (1971). A liberty interest

protected by the Due Process Clause may arise from either of two

sources: the Due Process Clause itself or from state or federal

law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983); Asquith v.

Department of Corrections, 186 F.3d 407, 409 (3d Cir. 1999).

III. DISCUSSION

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Petitioner brings this application under 28 U.S.C. § 2241

challenging the actions of the Bureau of Prisons with respect to

the Inmate Financial Responsibility Program. The challenges

brought in the instant petition where previously brought in a

similar petition filed by Petitioner in the United States

District Court for the District of South Carolina. That petition

was dismissed for failure to exhaust administrative remedies in a

September 22, 2011 opinion filed by that court. 

A. The issue of jurisdiction

First, there is a question of whether this matter

necessitated transfer to this court. At the time that the matter

was filed, Petitioner was incarcerated within the District of

South Carolina, and as such jurisdiction was proper there.1

Subsequent to the filing, Petitioner was transferred to a

facility within the District of New Jersey and this matter was

then transferred here. However, the transfer of Petitioner to a

facility within this district did not necessarily require

transfer to this court, since at the time of filing jurisdiction

had been proper. See Rumsfeld v. Padilla, 542 U.S. 426 (2004). 

Even so, this court would have had jurisdiction over the warden

of the facility where Petitioner was incarcerated during the time

he was at a facility within this district. 

1

The District of South Carolina retained jurisdiction over

the first filed petition for this same reason. 

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But during the progression of this matter in this district,

Petitioner was then transferred out and currently remains at a

facility outside of this Court’s jurisdiction. Since at this

time Petitioner is no longer incarcerated within this district

this Court no longer would have custody over Petitioner’s current

custodian. However, transfer – either back to the district where

the matter was initially filed or to the district in which

Petitioner is now incarcerated – would not be in the interest of

justice as the matter is dismissible on other grounds, as

discussed below.

B. Decision in the District of South Carolina finding no

evidence of exhaustion 

In the alternative, it appears that the petition currently

pending in this court is duplicative of the South Carolina

petition in which a decision has already been rendered to dismiss

for failure to exhaust administrative remedies. This Court has

reviewed the record, and it appears that there has been no change

to the status: Petitioner has not made any subsequent attempts to

exhaust his administrative remedies as to this 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

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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

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

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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. § 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. 

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

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.

As first determined by the District of South Carolina, this

Court also deems that Petitioner has not shown that he has

exhausted his administrative remedies as to this issue, nor has

he shown that pursuit of such remedies would be futile. 

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According to the Declaration of Tara Moran,2

 legal assistant with

the Federal Bureau of Prisons, a search of the computerized index

conducted on or about September 21, 2011 indicates that

Petitioner has not attempted to exhaust his administrative

remedies in this matter in any way, never having filed any remedy

forms regarding this issue. 

Such neglect of the administrative remedy program would

trigger a dismissal for failure to exhaust administrative

remedies. Accordingly, and for the reasons as expressed in the

decision rendered in the District of South Carolina, the matter

is alternatively dismissed for failure to exhaust administrative

remedies. 

IV. CONCLUSION

For the reasons set forth above, the Petition is dismissed

for lack of jurisdiction, or in the alternative, for failure to

exhaust administrative remedies. An appropriate order follows.

s/Renée Marie Bumb 

Renée Marie Bumb

United States District Judge

Dated: April 19, 2012 

2

Submitted as attachment #1 to the response.

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