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Goist v. Antonelli

United States District Court, D. South Carolina

March 14, 2018



          Bristow Marchant United States Magistrate Judge

         This Petition for a writ of habeas corpus was filed on December 4, 2017[1], pursuant to 28 U.S.C. § 2241. Petitioner is currently incarcerated at the Federal Correctional Institution (“FCI”) in Salters, South Carolina.

         On December 18, 2017, prior to service on the Respondent, Petitioner filed a motion to expedite. After being served, the Respondent filed a motion to dismiss and/or for summary judgment, on February 7, 2018. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on February 8, 2018, advising Petitioner of the importance of a motion for summary judgment and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case. Petitioner thereafter filed a Traverse and Motion in Opposition on February 20, 2018.

         This matter is now before the Court for disposition.[2" name="FN2" id="FN2">2]


         The record before the Court shows that Petitioner was sentenced by the United States District Court for the Northern District of Ohio on October 18, 2001, to a 240 month term of imprisonment, with a 3 year term of supervision, for a violation of 18 U.S.C. § 2113(a) (Bank Robbery). See Respondent's Exhibit One, p. 2. Petitioner's projected date of release is August 4, 2018, via Good Conduct Time (GCT) release. Id. Petitioner raises the following issues in his Petition:

Ground One: The [Residential Re-entry Center (“RRC”)] placement center has exceeded its authority to change RRC placement dates and these acts run afoul of Title 18 U.S.C. Section 3621(b);
Ground Two: That RRC [ ] is a Third Party Independent Contractor and has no authority to make changes or placement dates or determine other factors outlined in Section 3621 of Title 18;
Ground Three: That the Federal Prisons is ignoring the mandates of 3624(c) that they “must afford prisoners a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.” Id 18 U.S.C. Section 3624(c)(emphasis added).

See Attachment to Petition, p. 3.

         Petitioner requests this Court to issue a mandate to the United States Parole Commission (“Parole Commission”) to release him to RRC placement, or in the alternative to either home confinement or restore good conduct credits to offset the violation and immediately release him from federal custody.[3" name="FN3" id= "FN3">3] The Respondent denies the Petitioner's allegations and opposes his requested relief


         Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, while the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case; See Cruz v. Beto, 319');">405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972); the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 2d 387');">901 F.2d 387 (4th Cir. 1990). Such is the case here.


         Respondent does not contest that Petitioner's claim that he was entitled to additional time in an RRC placement may be brought under 28 U.S.C. § 2241. However, Respondent does dispute that Petitioner has exhausted his administrative remedies with respect to this claim. See Hughes v. Slade, 347 F.Supp.2d 821');">347 F.Supp.2d 821 (C.D.Cal.2004); Jimenez v. Warden, FDIC, Fort Devens, Massachusetts, 147 F.Supp.2d 24, 27 (D.Mass. June 8, 2001); United States v. Shanklin, No. 87-7395, 1988 WL 41128 at * 2 (4th Cir. April 28, 1988); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984) [“It is only when a prisoner has exhausted his administrative remedies that he becomes entitled to litigate the matter in the district court.”]. See also Alexander v. Hawk, 159 F.3d 1321 (11th Cir.1998); United States v. Mathis, 689 F.2d 1364, 1365 (11th Cir.1982).

         Although Respondent concedes that Petitioner properly filed his Administrative Remedy and Regional Administrative Appeal to the Regional Director, both necessary steps for administrative exhaustion, Respondent contends that Petitioner failed to properly pursue an appeal to the Central Office prior to filing this federal petition.[4] The record provided confirms Respondent's argument. The Petitioner filed an appeal with the BOP's Central Office on December 4, 2017 (dated December 1, 2017). See Respondent's Exhibit Two [Court Docket No. 12-2, p. 26]; see also Attachment to Petition [Court Docket No. 1-2, pp. 8-9]. By rule, the Central office thereafter had 40 calendar days to respond to the appeal. Otherwise, the inmate may assume the appeal is denied and may proceed with a court filing. 28 C.F.R. § 542.18.[5] Here, the 40 day response time for the Central Office to respond to Petitioner's appeal ended on January 13, 2018. See28 C.F.R. § 542.18; see also Respondent's Exhibit Two. However, rather than waiting on a response, ...

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