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Dawe v. Nicklin

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

April 4, 2018

STEPHEN TYLER DAWE, Reg. No. 26361-051, Petitioner,
v.
S. NICKLIN, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          DAVID C. GUADERRAMA UNITED STATES DISTRICT JUDGE.

         Petitioner 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 (2012).

         BACKGROUND

         In the 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.

         Dawe 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).

         Dawe, now a prisoner at the La Tuna Federal Correctional Institution, in Anthony, Texas, [1] 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.

         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 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).

         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.

         Dawe 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.

         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 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 seeks.

         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). ...


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