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Gregory v. Willis

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

December 21, 2017

JOHNNY BRETT GREGORY, Reg. No. 57012-019, Petitioner,
v.
J. SCOTT WILLIS, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          PHILIP R. MARTINEZ, UNITED STATES DISTRICT JUDGE.

         On this 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.

         After 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.

         I. BACKGROUND

         On July 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.

         Petitioner 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.

         In his 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.

         II. APPLICABLE LAW

         A writ 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).

         III. ANALYSIS

         A. Failure to Exhaust Administrative Remedies

         An 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.

         Petitioner 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.

         The BOP 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 are ...


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