UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION
April 9, 2010
KERRY BROWN, SR., PETITIONER,
D. SMITH, WARDEN FCI PEKIN ILLINOIS, RESPONDENT.
The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
OPINION & ORDER
This matter is before the Court on Petitioner Kerry Brown's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Respondent has submitted its Response to the Petition, in which it argues both that Brown has failed to exhaust his administrative remedies and that he has failed to demonstrate a violation of the Constitution or laws of the United States. (Doc. 7). Brown has responded to Respondent's Response. (Doc. 8). For the reasons stated below, Brown's Petition is dismissed.*fn1
Brown was sentenced in 1986 to a thirty-year term of imprisonment in the Eastern District of Missouri for robbery of a credit union, transportation of stolen money in interstate commerce, and unlawful use of a firearm during commission of a crime of violence. Pursuant to mandatory release under 18 U.S.C. § 4164, Brown was conditionally released on April 16, 2004, "as if on parole."*fn2 On August 7, 2008, Brown was arrested for violations of his mandatory release; the Parole Commission revoked his mandatory release, and scheduled a discretionary parole after the service of fourteen months in custody. On October 6, 2009, he was released from custody, pursuant to that scheduled discretionary parole. (Doc. 1 at 1-2; Doc. 7 at 2-4; Doc. 9).
In his Petition, Brown contends that the Bureau of Prisons ("BOP") "mis-applied the statutory provisions of the repealed statutes" by failing "to deduct the SGT from the fourteen (14) month date which would result in petitioner's release following the one-hundred and fourty [sic] (140) days [statutory good time] deduction he is entitled to by law." (Doc. 1 at 2). He asserts that he was entitled to have ten days per month deducted from the fourteen months' revocation of mandatory release under 28 C.F.R. § 523.2(a), which provides that "An inmate conditionally released from imprisonment [by] mandatory release can earn statutory good time, upon being returned to custody for violation of supervised release, based on the number of days remaining to be served on the sentence." (Doc. 8 at 2). Under his calculation, he should have been released from custody 140 days earlier than the October 6, 2009 release date calculated by the BOP.
Though § 2241 does not expressly require exhaustion of administrative remedies, the district courts can require a petitioner to exhaust his administrative remedies. Kane v. Zuercher, 08-1159, 2009 WL 294495, *2 (C.D. Ill. Feb. 6, 2009) (aff'd by Kane v. Zuercher, 344 Fed.Appx. 267, 269 (7th Cir. 2009) (citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997)). The BOP has set out an administrative remedy procedure at 28 C.F.R. §§ 542.10-.19. This procedure provides first for informal presentation of an issue to the staff, who "shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy." 28 C.F.R. § 542.13. Next, a formal written Administrative Remedy Request is to be made to the Warden. 28 C.F.R. § 542.14. If the inmate is not satisfied with the Warden's response, he may appeal to the Regional Director, then, if still not satisfied, to the General Counsel. 28 C.F.R. § 542.15(a). The General Counsel is the final level of administrative review. Id. As pointed out by Respondent, Brown filed two Administrative Remedy Requests to the Warden, but did not first attempt informal resolution. 28 C.F.R. §§ 542.13-.14. Because of this, Brown's two Administrative Remedy Requests were rejected. (Doc. 7, App. At 43).
Brown does not argue that he did exhaust his administrative remedies, but instead argues that the Court should waive the exhaustion requirement, as exhaustion would be futile. He claims that his attempts to exhaust the BOP procedures have been "circumvented by respondent's responses to petitioner's attempts to resolve the issue."*fn3 In addition, he claims that exhaustion would prejudice his court action, that the BOP does not have the authority to grant the relief sought by him, and that the BOP is biased and has predetermined the issue. (Doc. 8 at 1). The Court does have the power to waive the exhaustion requirement where "resort to the administrative remedy may occasion undue prejudice to subsequent assertion of a court action," where "an administrative remedy [is] inadequate 'because of some doubt as to whether the agency was empowered to grant effective relief,'" or where "the administrative body is shown to be biased or has otherwise predetermined the issue before it." McCarthy v. Madigan, 503 U.S. 140, 146-49 (1992) (citations omitted).
First, Brown has not explained how exhaustion would have prejudiced his court action. The administrative process provided by the BOP, discussed further below, mandates reasonable time frames for disposition by the different levels of administrative review, and there is no indication that, had Brown attempted to utilize the process, he would have met with unreasonable delays that would have prejudiced his underlying claim. Further, he has not explained why he believes the BOP does not have the authority to properly calculate his sentence.*fn4 As the Seventh Circuit has observed, "[u]ntil he asks, we cannot know whether [the BOP] may yet be able to grant some relief." Kane, 344 Fed.Appx. at 269 (citing Porter v. Nussle, 534 U.S. 516, 524-25 (2002)). Similarly, until he properly requested that the BOP re-calculate his sentence, it cannot be known whether it would have done so. Brown seems to believe that because the BOP had a particular method of calculation in mind when it calculated his release date as October 6, 2009, it had predetermined the issue such that appeal would be futile. If this were all that is required to excuse a failure to exhaust, exhaustion would never be required - an individual by definition does not have a grievance with an administrative agency unless the agency initially disagrees with him, but that initial disagreement cannot be grounds for excusing the exhaustion requirement.
Moreover, even if Brown had exhausted his administrative remedies, it appears that his interpretation of the applicable statutes and regulations is incorrect. In 1986, Brown was sentenced to 30 years' imprisonment, which would have expired in 2016. Brown was originally released in 2004 pursuant to mandatory release under 18 U.S.C. § 4164, which occurs when a prisoner has served his full sentence, minus accumulated statutory good time; the releasee is supervised "as if on parole" and the release is conditional until 180 days prior to the termination of his full term of imprisonment. In 2008, he was found to have violated the terms of his mandatory release, and so his mandatory release was revoked. At the revocation hearing, Brown was granted discretionary parole from his violation of mandatory release term, which entitled him to release on October 6, 2009. Absent that discretionary parole, Brown would have been required to serve his full term, as his conditional 2004 mandatory release had been revoked, but he could have earned enough statutory good time to qualify for a mandatory release date of October 5, 2013.
Brown argues that the fourteen months he spent in custody on the revocation of mandatory release should have allowed him to accumulate 140 days of good time credit, which should have been deducted from the fourteen months in custody. This is an incorrect interpretation. Brown's mandatory release was revoked in 2008. At that time, he was subject to serving the remainder of his original 30-year sentence, minus accumulated good time, which would have meant, at the earliest, an October 5, 2013 mandatory release. At the revocation hearing, though, he was scheduled for discretionary parole after service of a fourteen-month term. Brown did accumulate good time credit during those fourteen months under 28 C.F.R. § 523.2(a), but because he was released under discretionary parole after only fourteen months, four years before his new mandatory release date, the good time credit did not have the effect of shortening the fourteen-month term - either discretionary parole or mandatory release applies, and Brown's discretionary parole took effect before mandatory release would have. In any event, however, Brown should have allowed the BOP to address these questions in the first instance by exhausting his administrative remedies.
IT IS THEREFORE ORDERED that Brown's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) is DISMISSED.
Entered this 9th day of April, 2010.