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Jones v. Bergami

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

October 2, 2019

HENRY ULIOMEREYON JONES, Reg. No. 46810-112, Petitioner,
WARDEN BERGAMI; ICE, El Paso & West Texas, D. CHEADLE, ICE, Los Angeles Deportation Proceedings, Respondents.



         Petitioner Henry Uliomereyon Jones asks the Court to intervene in his behalf and order Respondent Warden Bergami to consider him for placement in a halfway house or residential reentry center (RRC) for the maximum permissible amount of time before his release from custody. Pet'r's Pet. 9, ECF No. 1. Jones explains Warden Bergami has already denied his request for RRC placement based on an Immigration and Customs Enforcement (ICE) detainer. Id., at 1. After due consideration, the Court will deny Jones' "Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241" because it appears from its face that his claims are unexhausted and, in the alternative, that he is not entitled to § 2241 relief.


         On September 27, 2007, a federal grand jury sitting in the Central District of California returned a 33-count indictment in cause number 07-CR-1075-PA charging Jones and two others with mail fraud, wire fraud, securities fraud, contempt, witness tampering, and unlawful monetary transactions. The charges arose from a four-year scheme by Jones and his co-defendants to defraud investors they had solicited to participate in a coal mining venture and the sale of 20, 000 tons of gold between Israel and the United Arab Emirates.

         Jones was extradited from Hong Kong and arrived in the United States for his initial appearance on December 13, 2007. Trial began on June 24, 2008, and ended on July 11, 2008, when the jury returned guilty verdicts on all counts. On April 3, 2009, the trial court sentenced Jones to 240 months' imprisonment in the custody of the Bureau of Prisons (BOP) followed by three years' supervised release. The court also ordered Jones to pay a $1, 800 special assessment and restitution in the amount of $28, 058, 310. The Ninth Circuit Court of Appeals affirmed the conviction. United States v. Jennings, 434 Fed.Appx. 670, 673 (9th Cir. 2011).

         Jones is currently confined at the La Tuna Federal Correctional Institution in Anthony, Texas. His projected release date is February 18, 2025. Pet'r's Pet., Ex. 1.

         Jones claims that Warden Bergami abused his discretion when he denied Jones RRC placement. Id., at 3. He also maintains that his status as a legal permanent resident of the United States makes him eligible for cancellation of removal. Id., at 4. He suggests that the Court "can invoke its plenary power to correct the egregious exercise of ICE and BOP power that is so capricious as to violate the constitution ..." Id. He also asks that the Court ignore the ICE detainer and "ORDER the BOP in good faith to consider on an individualized basis, using the five factors set forth in 18 U.S.C. Secon [sic] 3621(b) plus take into account the language in 18 U.S.C. Section 3624(c)(6)(C) [and grant] him the maximum amount of time in the RRC to provide the greatest likelihood of [his] successful reintegration into the Community." Id., at 9 (quotations and citations omitted).


         A writ of habeas corpus under 28 U.S.C. § 2241 provides the proper procedural vehicle for a prisoner to attack "the manner in which a sentence is executed." Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). "[T]he proper respondent to a habeas petition is 'the person who has custody over [the petitioner].'" Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (quoting 28 U.S.C. § 2242). "Habeas 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)). Hence, a habeas corpus petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States" to obtain relief. 28 U.S.C. § 2241(c) (2012).

         During its initial screening of a habeas corpus petition, a reviewing court must accept the petitioner's allegations as true. 28 U.S.C. § 2243; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). It must also evaluate a petition presented by pro se petitioner under more a lenient standard than it would apply to a petition submitted by counsel. Erickson v. Pardus, 551 U.S. 89, 94 (2007). It must "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)).


         A. Exhaustion

         Jones concedes he has not exhausted his administrative remedies through the BOP's administrative review process. Pet'r's Pet. 7, ECF No. 1. He argues the Court should excuse this omission "due to futility." Id.

         A petitioner seeking § 2241 habeas relief must first exhaust all administrative remedies which might provide appropriate relief before seeking judicial review. Fuller v. Rich,11 F.3d 61, 62 (5th Cir. 1994) (per curiam); Rourke v. Thompson,11 F.3d 47, 49 (5th Cir. 1993). Exhaustion means "proper exhaustion," including compliance with all administrative deadlines and procedures. Cf. ...

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