United States District Court, W.D. Texas, El Paso Division
STEPHEN TYLER DAWE, Reg. No. 26361-051, Petitioner,
S. NICKLIN, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA UNITED STATES DISTRICT JUDGE.
Stephen Tyler Dawe seeks Court intervention through a
"Petition for Writ of Habeas Corpus" under 28
U.S.C. § 2241 (ECF No. 1). He asks the Court to order
Respondent S. Nicklin to consider him for twelve months'
placement in a residential reentry center ("RRC")
program, in accordance with his understanding of the Second
Chance Act. Pet'r's Pet. at 2, 18, ECF No. 1. The
Court finds it appears from the face of Dawe's petition
that his claims are unexhausted and, in the alternative, that
he is not entitled to § 2241 relief. Accordingly, the
Court will dismiss Dawe's petition. 28 U.S.C. § 2243
early morning hours of September 29, 2014, a detective from
the Albuquerque, New Mexico, Police Department contacted a
special agent with the federal Bureau of Alcohol, Tobacco,
Firearms and Explosives. The detective advised the special
agent that Stephen Tyler Dawe was in custody undergoing
questioning for a possible kidnapping and conspiracy to
commit a violent felony. The detective explained Dawe, a
convicted felon, was found in possession of an altered
Stevens, model 94, single-shot, 12-gauge shotgun.
pleaded guilty to a federal indictment charging him with
felon in possession of a firearm and ammunition, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The Court
sentenced him to 60 months' imprisonment followed by
three years' supervised release. J., ECF No. 40,
United States v. Dawe, l:14-CR-3422-lWPJ (D. N.M.
July 14, 2015).
now a prisoner at the La Tuna Federal Correctional
Institution, in Anthony, Texas,  claims he "has a
projected release date of Feb. 5th, 2019."
Pet'r's Pet. at 1. He asks the Court to order Nicklin
to consider him for RRC placement 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 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 he has not exhausted his claims through the BOP
administrative review process. Pet'r's Pet. at 7-18.
He asks the Court to excuse him from exhausting "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 et seq.
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 available and not wholly inappropriate to
obtaining relief from aspects of imprisonment that Dawe
claims that "[b]y the time a full exhaustion could be
had, the Petitioner would then be inside the twelve months
before his release date making his petition essentially
moot." Pet'r's Pet. at 17. Dawe gives no
indication he even initiated the administrative review
process. While exhaustion of remedies may take time,
"there is no reason to assume that... prison
administrators ... will not act expeditiously."
Preiser v. Rodriguez,411 U.S. 475, 494-95 (1973).