DESMOND KING, No. 21254-424, Petitioner,
JAMES CROSS, Respondent.
MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
Petitioner Despond King is in the custody of the Bureau of Prisons ("BOP"), incarcerated at the Federal Correctional Institution in Greenville, Illinois. Before the Court is King's Emergency Petition for Writ of Habeas Corpus (Doc. 1), which was received via standard mail and filed on January 16, 2014.
King is serving sentences totaling 195 months and is not due to be released in the immediate future. Upon learning that his uncle was terminally ill, King sought a furlough on January 13, 2014, so that he could travel to Chicago, Illinois, to be by his uncle's side. That request was denied. Petitioner King's uncle died on January 13, 2014. On January 14, 2014, King submitted another request for a furlough in order to attend the funeral, which is set on Saturday, January 18, 2014. That request was denied, purportedly because furloughs are only given for a crisis involving "immediate family" ( see Doc. 1, p. 4). Rather than complete the administrative remedy process, King drafted the subject petition for writ of habeas corpus, that same day. He purportedly is not asking the Court to grant him a furlough; rather, he asks that the Court finds that his right to due process was violated and order respondent to grant him the requested furlough ( see Doc. 1, p. 3).
The Court construes King's Emergency Petition for Writ of Habeas Corpus (Doc. 1) as both a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and a motion for emergency injunctive relief.
Exhaustion of Administrative Remedies
As a preliminary matter, the Court must address the issue of exhaustion of administrative remedies. In the Section 2241 context, the Seventh Circuit notes that there is no statutory exhaustion requirement in Section 2241. Gonzalez v. O'Connell, 355 F.3d 1010, 1015-19 (7th Cir. 2004) (citing James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002)). "[W]here Congress has not clearly required exhaustion, sound judicial discretion governs." McCarthy v. Madigan, 503 U.S. 140, 144 (1992).
Exhaustion may be excused when: (1) requiring exhaustion of administrative remedies causes prejudice, due to unreasonable delay or an indefinite timeframe for administrative action; (2) the agency lacks the ability or competence to resolve the issue or grant the relief requested; (3) appealing through the administrative process would be futile because the agency is biased or has predetermined the issue; or (4) where substantial constitutional questions are raised. Iddir v. INS, 301 F.3d 492, 498 (7th Cir.2002) (internal quotations and citations omitted).
Given that the funeral is set for tomorrow, January 18, 2014, time is of the essence. The Court will grant Petitioner's request to be excused from the exhaustion of administrative remedies requirement, and address his substantive claim for relief.
A petition seeking habeas corpus relief is appropriate under 28 U.S.C. § 2241 when a petitioner is challenging the fact or duration of confinement. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994). Petitioner notes that a writ of habeas corpus may be granted where the defendant is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2241(c)(3). King contends he has been denied due process, as guaranteed by the Fifth Amendment. "The touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (citation to Dent v. West Virginia, 129 U.S. 114, 123 (1889), omitted)).
As a preliminary matter, it does not appear that this Court has any authority to grant a furlough. Congress has given the BOP-not the courts-the authority to temporarily release a federal prisoner. See 18 U.S.C. § 3622(a). In any event, petitioner's due process argument fails on the merits.
The Federal Bureau of Prisons "may" grant "temporary release"-a furlough-in limited circumstances, which include "visiting a relative who is dying, " and "attending a funeral of a relative." 18 U.S.C. § 3622(a)(1) and (2), respectively. Thus, a furlough is a discretionary matter.
Regulations have been prescribed for the furlough process: 28 C.F.R. §§ 570.30-.38. The prescribed procedures are:
(a) Application. Inmates may submit a furlough application to staff, who will review it for compliance with these ...