United States District Court, W.D. Texas, El Paso Division
JOHNNY BRETT GREGORY, Reg. No. 57012-019, Petitioner,
J. SCOTT WILLIS, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
R. MARTINEZ, UNITED STATES DISTRICT JUDGE.
day, the Court considered Petitioner Johnny Brett
Gregory's "Petition for Writ of Habeas Corpus"
under 28 U.S.C. § 2241 [hereinafter
"Petition"] (ECF No. 1), filed on November 12,
2017, in the above-captioned cause. Therein, Petitioner asks
the Court to intervene on his behalf and order Respondent J.
Scott Willis to consider him for twelve months' placement
in a residential reentry center, in accordance with his
understanding of the Second Chance Act. Pet. 2, 18.
due consideration, the Court will dismiss the Petition
because Petitioner has failed to exhaust his administrative
remedies and, in the alternative, because Petitioner is not
entitled to § 2241 relief.
19, 2005, county and federal law enforcement officers
executed a search warrant at Petitioner's home in Dalton,
Whitfield County, Georgia. See Order 22, Oct. 15,
2007, ECF No. 34, United States v. Gregory,
4:06-CR-10-HLM (N.D.Ga.). The officers found more than 50
grams of methamphetamine in Petitioner's bedroom. They
also found a handgun on the nightstand next to
Petitioner's bed. Id. at 23.
pleaded guilty to possessing at least fifty grams of
methamphetamine with the intent to distribute, and possessing
a firearm in furtherance of a drug trafficking crime.
See J. Crim. Case, Oct 23, 2006, ECF No. 27,
United States v. Gregory, 4:06-CR-10-HLM (N.D.Ga.).
Petitioner was sentenced to an aggregate term of 180
months' imprisonment. Id.
petition, Petitioner claims he "has a projected release
date of August 10, 2019." Pet. 1. He asks the Court to
order Respondent to consider him for placement in a
residential reentry center for twelve months or "the
maximum amount of time" before his ultimate release from
Bureau of Prisons' ("BOP") custody.
Id. at 18.
of habeas corpus under 28 U.S.C. § 2241 provides a basis
for relief for prisoners who are "in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2241(c)(3) (2012). It
provides the proper procedural vehicle in which to raise an
attack on "the manner in which a sentence is
executed." Tolliver v. Dobre, 211 F.3d 876, 877
(5th Cir. 2000). A court must order a respondent to show
cause as to 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." 28 U.S.C. § 2243 (2012).
Failure to Exhaust Administrative Remedies
initial issue a court must address when screening a §
2241 petition is whether the petitioner has exhausted his
administrative remedies. Fuller v. Rich, 11 F.3d 61,
62 (5th Cir. 1994) (per curiam). A petitioner seeking habeas
relief must first exhaust all administrative remedies that
might provide appropriate relief. Id.; Rourke v.
Thompson, 11 F.3d 47, 49 (5th Cir. 1993).
"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."
Fuller, 11 F.3d at 62 (internal citations omitted).
Exceptions may be made only in "extraordinary
circumstances, " which the petitioner bears the burden
to establish. Id.
concedes that he has not exhausted his claims through the BOP
administrative review process. Pet. 7-18. He asks that the
Court excuse him from exhausting administrative review
"due to futility." Id. at 14.
uses a three-tiered Administrative Remedy Program to review
inmate complaints relating to all aspects of their
imprisonment. 28 C.F.R. §§ 542.10-542.19. A federal
prisoner must generally pursue the procedures set forth in
the program prior to seeking relief in a district court.
Rourke, 11 F.3d at 49. Thus, Administrative remedies