United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
Petitioner Julian Wyre is currently in the custody of the Federal Bureau of Prisons (BOP), incarcerated at FCI-Greenville. He is serving a 204-month sentence following his guilty plea and conviction in the Northern District of Illinois, Case No. 07-cr-50039, for possession with intent to distribute cocaine base. He brings this emergency habeas corpus petition pursuant to 28 U.S.C. § 2241, claiming that respondent violated his due process rights when he denied permission for petitioner to attend his grandmother's funeral on an unmonitored temporary furlough. The petition was submitted to prison authorities for mailing on April 3, 2014. It was received by the Clerk of Court through regular mail on April 8, 2014, and filed immediately.
Petitioner's sentence was imposed on November 6, 2008, and he is not projected to be released until February 2022. Petitioner learned on April 2, 2014, that his grandmother had died that day (Doc. 1, p. 2). On April 3, 2014, he submitted a written request to Respondent Cross asking for an unmonitored temporary release for a 24-hour period (including travel to and from Chicago and time to attend the funeral). Petitioner is unable to pay the estimated $5, 000.00 cost for a monitored furlough. The funeral was to be scheduled during the week of April 7-11, 2014; the exact date was unknown to petitioner at the time he filed this action. His request was denied on April 3, 2014, and petitioner filed this action the same day, apparently without seeking review through the BOP's administrative remedy process. He asks that he be excused from the requirement to exhaust these remedies (Doc. 1, p. 2).
Petitioner does not attach any documentation to disclose the reason(s) for respondent's denial of his request, although he refers to an "Exhibit A, " described as the "Inmate Request to Staff" (Doc. 1, p. 2). He asserts, however, that respondent failed to consider each of the three criteria listed in the statute authorizing the BOP to grant a temporary release, which states in pertinent part:
The Bureau of Prisons may release a prisoner from the place of his imprisonment for a limited period  if such release appears to be consistent with the purpose for which the sentence was imposed and any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2),  if such release otherwise appears to be consistent with the public interest and  if there is reasonable cause to believe that a prisoner will honor the trust to be imposed in him, by authorizing him, under prescribed conditions, to-
(a) visit a designated place for a period not to exceed thirty days, and then return to the same or another facility, for the purpose of-
(2) attending a funeral of a relative[.]
18 U.S.C. § 3622(a)(2). Petitioner argues that this statute specifically authorizes the temporary release he seeks, and he has a constitutional right to be properly considered for such a furlough (Doc. 1, p. 3-4). As relief, he asks this Court to order the respondent to grant his request for an unmonitored temporary release.
Due to the exigent nature of this matter, The Court construes the 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
The Seventh Circuit notes that there is no statutory exhaustion requirement for a § 2241 petition. 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 planned to occur during the current week of April 7-11, 2014, time is of the essence. The Court grants petitioner's request to be excused from the exhaustion of administrative remedies ...