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Hillman v. Willis

United States District Court, W.D. Texas, El Paso Division

November 9, 2017

RICHARD MCNEAL HILLMAN, Petitioner,
v.
J. SCOTT WILLIS, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          FRANK MONTALVO UNITED STATES DISTRICT JUDGE.

         Petitioner Richard McNeal Hillman, federal prisoner number 47559-074, asks the Court to intervene in his behalf with the Bureau of Prison through a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 (ECF No. l-l).[1] Specifically, Hillman asks the Court to order Respondent J. Scott Willis to consider him for placement in the Residential Drug Abuse Treatment Program and a residential reentry center to ensure his eligibility for early release from prison under the Second Chance Act.[2]

         The Court must order a respondent to show cause why a petition pursuant to § 2241 should not be granted "unless it appears from the [petition] that the [petitioner] or person detained is not entitled thereto."[3] Having considered the petition and the applicable legal authorities, the Court concludes that it appears from the face of the petition that Hillman is not entitled to relief.

         BACKGROUND

         The United States District Court for the Eastern District of Tennessee accepted Hillman's guilty pleas on two counts of conspiracy to possess with the intent to distribute a Schedule I controlled substance analogue, alpha-pyrrolidinopentiophenone, and one count of felon in possession of a firearm, namely a Maverick (Mossberg) Model 88, 12 gauge shotgun. The Court sentenced him to an aggregate term of 188 months' imprisonment and recommended his participation in the Bureau of Prisons' Residential Drug Abuse Treatment Program.[4]

         The Residential Drug Abuse Program is an intensive nine-month, 500-hour substance abuse rehabilitation program offered to federal prisoners who qualify and voluntarily elect to enroll. Upon successful completion of the program, prisoners are eligible for up to a twelve-month reduction in their sentences. Due to high demand and insufficient space, prisoners are placed on waiting lists and accepted into the program when an opening becomes available.

         In his petition, Hillman asks the Court to order Willis to consider him for immediate placement in a Residential Drug Abuse Treatment Program and a residential reentry center to ensure his eligibility for the earliest possible release from prison under the Second Chance Act.[5]

         APPLICABLE LAW

         A petitioner may attack the manner in which his sentence is being executed in the district court with jurisdiction over his custodian pursuant to 28 U.S.C. § 2241.[6] However, "[h]abeas corpus relief is extraordinary and 'is reserved for transgressions of constitutional rights and for a narrow range of injuries that... if condoned, result in a complete miscarriage of justice.' "[7] To prevail, a habeas corpus petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States."[8]

         ANALYSIS

         A. Failure to Exhaust Administrative Remedies

         Hillman concedes he has not exhausted his administrative remedies. He asks that the Court excuse him from exhausting due to futility.[9] According to Hillman, the Director of the Bureau of Prisons, Harley Lappin, "has taken a strong position on the issue [of allowing prisoners more than six months in a residential reentry center] and has thus far been unwilling to reconsider."[10] Hillman cites no facts to support this statement, and the cases he cites in support of his claim predate, and are unrelated to, the Second Chance Act.[11]

         An initial issue a court must address when screening a § 2241 petition is whether the petitioner has exhausted his administrative remedies.[12] A petitioner seeking habeas relief must first exhaust all administrative remedies that might provide appropriate relief.[13] "Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action."[14] Exceptions may be made only in "extraordinary circumstances, " which the petitioner bears the burden to establish.[15]

         The Bureau of Prisons uses a three-tiered Administrative Remedy Program to review inmate complaints relating to all aspects of their imprisonment.[16] A federal prisoner must pursue the procedures set forth in the program prior to seeking relief in a district court.[17]

         Hillman indicates that his projected release date is December 5, 2027.[18] Ample time remains for him to engage in the administrative remedy process. Although Hillman obviously believes the Bureau of Prisons will deny his request for what amounts to early placement in a Residential Drug Abuse Treatment Program, early placement in a residential reentry center, and early release from prison, he offers no factual basis in his petition to support that belief. While exhaustion ...


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