United States District Court, W.D. Texas, El Paso Division
DEAN FREDRICK MALZAHN, Reg. No. 47223-298, Petitioner,
S. NICKLIN, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
KATHLEEN CARDONE UNITED STATES DISTRICT JUDGE
Fredrick Malzahn is a federal prisoner at the La Tuna Federal
Correctional Institution in Anthony, Texas, with a projected
release date of August 12, 2019. He petitions the Court under
28 U.S.C. § 2241 to intervene in his behalf and order
Respondent S. Nicklin to grant him “additional time in
the halfway house for a fighting chance at being a productive
member of society.” Pet'r's Pet. at 2, ECF No.
1. After reviewing Malzahn's petition, the Court finds it
appears from its face that his claims are unexhausted and, in
the alternative, that he is not entitled to § 2241
relief. Accordingly, the Court will dismiss Malzahn's
petition. 28 U.S.C. § 2243 (2012).
failed to pay the $5.00 filing fee or submit an application
to proceed in forma pauperis. The Court will, however, permit
Malzahn to proceed without prepaying costs or fees because
time is of the essence.
of habeas corpus under 28 U.S.C. § 2241 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). 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.'” Kinder v. Purdy, 222 F.3d 209,
213 (5th Cir. 2000) (quoting United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). 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.” 28 U.S.C. § 2241(c) (2012).
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).
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 which
might provide appropriate relief. Id.; Rourke v.
Thompson, 11 F.3d 47, 49 (5th Cir. 1993).
Bureau of Prisons (“BOP”) has established a
multi-tiered administrative remedy program “to allow an
inmate to seek formal review of an issue relating to any
aspect of his/her own confinement.” 28 C.F.R. §
542.10(a). First, the inmate must present his particular
complaint to the prison staff and attempt to resolve the
issue in an informal manner. Id. § 542.13(a).
If the complaint cannot be resolved informally, the inmate
must file a formal written administrative remedy request on a
BP-9 form with the prison warden. Id. § 542.14.
The warden has twenty days to respond, which may be extended
by an additional twenty days. Id. § 542.18. Any
adverse decision by the warden must be appealed to the
appropriate regional director by filing a BP-10 form.
Id. § 542.15(a). The regional director has
thirty days to issue a response, which may be extended by an
additional thirty days. The final step in the administrative
review process is an appeal to the Office of General Counsel
on a BP-11 form. Id. The General Counsel has forty
days to issue a response. Id. § 542.18. If an
inmate does not receive a response within the time allotted
for a reply, he may consider the absence of a response a
denial at that level and proceed to the next level.
Id. An inmate may seek relief in federal court only
after he has exhausted all levels of the administrative
review process. See Lundy v. Osborn, 555 F.2d 534,
535 (5th Cir. 1977) (“Only after such remedies are
exhausted will the court entertain the application for relief
in an appropriate case.”).
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.
claims he discussed his placement in a halfway house with his
counselor. Pet'r's Pet. at 2. He further claims he
submitted a formal written administrative remedy request on a
BP-9 form to his warden, but he is still waiting for a
response. Id. He fails to identify any extraordinary
circumstances which would establish the futility of
exhaustion in his case.
Court accordingly finds that Malzahn has not exhausted and
dismissal is warranted on that basis alone. See Rivkin v.
Tamez, 351 Fed.Appx. 876, 877-78 (5th Cir. 2009) (per
curiam) (affirming dismissal of prisoner's § 2241
petition arguing violation of the Second Chance Act for
failure to exhaust administrative remedies). But even if
Malzahn had exhausted, he would still not be entitled to
§ 2241 relief.
Authority of the Bureau of ...