NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

MICHAEL J. STERNQUIST, :

:

Petitioner, :

:

v. :

:

DONNA ZICKEFOOSE, :

:

Respondent. :

 :

HON. JEROME B. SIMANDLE

Civil No. 11-3197 (JBS)

OPINION

APPEARANCES:

MICHAEL J. STERNQUIST, #44404-061

FCI Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

Petitioner Pro Se

SIMANDLE, District Judge

1. On June 3, 2011, Michael J. Sternquist, Reg. No. 44404-

061, an inmate confined at FCI Fort Dix in New Jersey, filed a

Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241

challenging the Bureau of Prison’s (“BOP”) refusal to consider

him for placement in a community corrections center (“CCC”), also

known as a residential reentry center (“RRC”), within 17-19

months of release and BOP’s refusal to consider him for

additional placement time as an incentive. 

2. Petitioner asserts that, although he sought informal

relief by submitting a BP-8 and he plans to submit a BP-9 if

needed, exhaustion “in this case would be futile because

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petitioner only has less than 12 months until release, and

requiring petitioner to exhaust would subject him to ‘irreparable

injury’ because he would lose even more time in an R.R.C. working

at a job, if the court requires full exhaustion.” (Docket Entry

#1, p. 1.)

3. The Second Chance Act modified the pre-release custody

placement statute by (1) doubling the pre-release placement

period from six to 12 months, (2) requiring the BOP to make CCC

placement decisions on an individual basis, and (3) requiring the

BOP to ensure that, consistent with the factors in 18 U.S.C. § 

3621(b), the duration of the placement period gives the inmate

the greatest likelihood of successful community reintegration. 

See 18 U.S.C. § 3624(c). 

4. Petitioner does not assert whether the BOP has

determined his placement date, nor does he assert any facts with

respect to the nature and circumstances of his offense, his

history and characteristics, and any statement by the sentencing

court. The online Inmate Locator of the BOP indicates that 

Petitioner’s projected release date is May 19, 2012. 

 5. The Habeas Rules require the assigned judge to review a

habeas petition prior to ordering an answer and to sua sponte

dismiss the petition under certain circumstances: 

The clerk must promptly forward the petition

to a judge under the court’s assignment

procedure, and the judge must promptly

examine it. If it plainly appears from the

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petition and any attached exhibits that the

petitioner is not entitled to relief in the

district court, the judge must dismiss the

petition and direct the clerk to notify the

petitioner . . . .

28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b).

6. The Supreme Court explained the pleading and summary

dismissal requirements of Habeas Rules 2 and 4 as follows:

Habeas Rule 2(c) . . . provides that the

petition must “specify all the grounds for

relief available to the petitioner” and

“state the facts supporting each ground.” 

See also Advisory Committee’s note on subd.

(c) of Habeas Corpus Rule 2, 28 U.S.C., p.

469 (“In the past, petitions have frequently

contained mere conclusions of law,

unsupported by any facts. [But] it is the

relationship of the facts to the claim

asserted that is important . . . .”);

Advisory Committee’s Note on Habeas Corpus

Rule 4, 28 U.S.C., p. 471 (“‘[N]otice’

pleading is not sufficient, for the petition

is expected to state facts that point to a

real possibility of constitutional error.”

(internal quotation marks omitted)) . . . . 

A prime purpose of Rule 2(c)’s demand that

habeas petitioners plead with particularity

is to assist the district court in

determining whether the State should be

ordered to “show cause why the writ should

not be granted.” § 2243. Under Habeas

Corpus Rule 4, if “it plainly appears from

the petition . . . that the petitioner is not

entitled to relief in district court,” the

court must summarily dismiss the petition

without ordering a responsive pleading. 

Mayle v. Felix, 545 U.S. 644, 655 (2005); see also McFarland v.

Scott, 512 U.S. 849, 856 (1994); United States v. Dawson, 857

F.2d 923, 928 (3d Cir. 1988).

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7. The BOP’s Administrative Remedy Program is a three-tier

process available to inmates confined in institutions operated by

the BOP who “seek formal review of an issue relating to any

aspect of his/her confinement,” including the BOP’s failure to

timely consider an inmate’s CCC placement date. 28 C.F.R. §

542.10(a). An inmate must generally attempt to informally

resolve the issue by presenting it to staff in a BP-8 form. See

28 C.F.R. § 542.13. If the issue is not informally resolved,

then the inmate may submit a request for administrative remedy

(BP-9) to the Warden. See 28 C.F.R. § 542.14. An inmate who is

dissatisfied with the Warden's response may appeal to the

Regional Director (BP-10), and an inmate dissatisfied with the

Regional Director’s decision may appeal to the General Counsel in

the Central Office (BP-11). See 28 C.F.R. § 542.15(a). Appeal

to the General Counsel is the final administrative appeal. Id. 

8. The regulations further provide that the Warden shall

respond within 20 calendar days; the Regional Director shall

respond within 30 calendar days; and the General Counsel shall

respond within 40 calendar days. See 28 C.F.R. § 542.18. And

the regulation provides that if the inmate does not receive a

response within the time allotted for reply, then the inmate may

consider the absence of a response to be a denial at that level. 

Id.

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

requirement, “[o]rdinarily, federal prisoners are required to

exhaust their administrative remedies prior to seeking a writ of

habeas corpus pursuant to 28 U.S.C. § 2241.” Gambino v. Morris,

134 F.3d 156, 171 (3d Cir. 1998); see also, e.g., Callwood v.

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

F.2d 1050, 1052 (3d Cir. 1981). The United States Court of

Appeals for the Third Circuit requires administrative exhaustion

of a claim raised under § 2241 for three reasons: “(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.” Moscato v. Federal Bureau of

Prisons, 98 F. 3d 757, 761-62 (3d Cir. 1996); see also Gambino,

134 F.3d at 171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d

Cir. 1988). 

10. Petitioner expressly states that he did not exhaust

administrative remedies. However, Petitioner has not shown that

exhaustion would be futile or that the purposes of exhaustion

would not be served in his case. This Court sees no reason to

excuse Petitioner’s failure to exhaust administrative remedies as

futile or otherwise. See Brown v. Grondolsky, 2009 WL 2778437

(D.N.J. Aug. 31, 2009) (dismissing § 2241 petition for failure to

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exhaust where petitioner argued that exhaustion was unavailable

because the warden did not consider any inmates for a 12-month

CCC placement); Shoup v. Schultz, 2009 WL 1544664 at *4 (D.N.J.

June 2, 2009) (“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 declines the

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

the Third Circuit’s teaching - as to the firmness of the

exhaustion requirement”).

11. Because the face of the Petition establishes that

Petitioner failed to exhaust administrative remedies regarding

his CCC placement and because Petitioner has not shown that the

failure to exhaust should be excused, this Court will dismiss the

Petition for failure to exhaust administrative remedies. See

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

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

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”). 

12. An appropriate Order accompanies this Opinion.

s/ Jerome B. Simandle 

JEROME B. SIMANDLE, U.S.D.J.

Dated: June 13 , 2011

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