Boucher v. Lamanna

• Decision Date: 22 February 2000
• Docket Number: No. 4:97-CV-2776.,4:97-CV-2776.
• Citation: 90 F.Supp.2d 883
• Parties: Elden R. BOUCHER, Petitioner, v. John J. LAMANNA, Warden, Respondent.
• Court: U.S. District Court — Northern District of Ohio

90 F.Supp.2d 883

Elden R. BOUCHER, Petitioner, v. John J. LAMANNA, Warden, Respondent.

No. 4:97-CV-2776.

United States District Court, N.D. Ohio, Eastern Division.

February 22, 2000.

Elden R Boucher, Federal Correctional Institution, Cumberland, MD, petitioner pro se.

James Matthew Cain, Office Of The U.S. Attorney, Cleveland, OH, for John J Lamanna, Warden, respondent.

OPINION AND ORDER

GWIN, District Judge.

On October 31, 1997, Petitioner Elden Boucher filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2241. [Doc. 1]. Petitioner Boucher alleges Respondent Warden John LaManna exceeded his statutory authority by improperly denying him early release under 18 U.S.C. § 3621(e). Boucher says two of the Bureau of Prisons' internal policies implementing the statutory mandate, Program Statements 5162.02 and 5162.04, improperly consider sentencing enhancements as a means of determining whether he may receive early release.

Respondent Warden LaManna contends that Program Statement 5162.02 correctly interprets the statutory mandate and is not inconsistent with the statute's plain language. Respondent also claims the more recent policy, Program Statement 5162.04, is a proper exercise of the broad discretion granted the Bureau under § 3621(e)(2)(B).

After Boucher filed his petition, the Sixth Circuit found Program Statement 5162.02 invalid. The Sixth Circuit has not directly addressed the validity of Program Statement 5162.04. Upon review of the parties' arguments, the Court finds Respondent LaManna's argument persuasive and denies Boucher's petition for a writ of habeas corpus.

I. FACTUAL BACKGROUND

Petitioner Boucher is serving a federal sentence for possession with intent to distribute marijuana in violation of 21 U.S.C. 841(a)(1). At the time he was sentenced for this offense, Boucher received a two-level enhancement under U.S. Sentencing Guidelines § 2D1.1 for possession of a dangerous firearm during the commission of the offense.

On April 10, 1997, Petitioner Boucher began serving his sentence. Once incarcerated, Boucher was approved to participate in the Bureau's Drug Abuse Treatment Program. However, the Bureau of Prisons denied Boucher eligibility for the early release provided to nonviolent offenders in 18 U.S.C. § 3621(e)(2)(B).

In denying Boucher early release, the Bureau relied on Program Statement 5162.02. That policy defines prisoners who receive enhanced sentencing based on possession of a firearm as being violent offenders. On October 31, 1997, Petitioner Boucher filed the instant motion under 28 U.S.C. § 2241, arguing he was wrongly denied consideration for early release under Program Statement 5162.02. Boucher argues that Program Statement 5162.02 is an invalid interpretation of the statute because it focuses on sentencing factors rather than the crime of conviction to determine which prisoners are violent offenders eligible for early release consideration. Defendant LaManna concedes that petitioner Boucher exhausted his administrative remedies regarding Program Statement 5162.02.

After Boucher's petition was filed, the Bureau of Prisons revised its policy that classified all prisoners receiving sentence enhancements for possession of a firearm to be violent offenders. The Bureau of Prisons revised the policy after several circuit courts of appeals struck down Program Statement 5162.02. These courts found that the Bureau impermissibly construed 18 U.S.C. § 3621(e)(2)(B) by considering sentencing enhancements when determining initial eligibility for early release after participation in a drug abuse treatment program. See Martin v. Gerlinski, 133 F.3d 1076 (8th Cir.1998); Fristoe v. Thompson, 144 F.3d 627 (10th Cir.1998); Byrd v. Hasty, 142 F.3d 1395, 1397 (11th Cir.1998); Roussos v. Menifee, 122 F.3d 159 (3rd Cir.1997); Davis v. Crabtree, 109 F.3d 566 (9th Cir.1997).

In response to these losses, the Bureau released a new Program Statement in October 1997. Under this new policy, Program Statement 5162.04, the Bureau of Prisons uses its discretion to deny early release rather than disqualifying persons with weapon possession enhancements from consideration.

In January 1998, the Bureau informed Boucher that it had re-evaluated his status under the new Program Statement. After this review, the Bureau found that Boucher still failed to qualify for early release. Under the Bureau's discretionary authority, it deemed Boucher's sentencing enhancement for weapons possession to preclude him from receiving certain Bureau benefits, including early release.

Petitioner Boucher has not filed a separate § 2241 petition challenging his denial under the new Program Statement. However, he incorporates Program Statement 5162.04 into his challenge to the denial of early release under the former policy, Program Statement 5162.02. Defendant LaManna argues that Boucher has failed to exhaust administrative remedies relative to the new policy. In response, Boucher argues that it would be futile to do so and that this Court should consider his challenge to the new policy.

II. JURISDICTION

A petition for writ of habeas corpus filed by a federal inmate under 28 U.S.C. § 2241 is proper where the inmate is challenging the manner in which his or her sentence is being executed. See Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.1998). A district court has jurisdiction over a federal prisoner's habeas corpus petition challenging the Bureau's determination of ineligibility for sentence reduction under 18 U.S.C. § 3621(e)(2)(B).¹ See Todd v. Scibana, 70 F.Supp.2d 779, 781 (W.D.Mich.1999); Scroger v. Booker, 39 F.Supp.2d 1296, 1299 (D.Kan.1999).

III. EXHAUSTION OF REMEDIES

Boucher's petition for habeas corpus claims the Bureau's former policy, Program Statement 5162.02, improperly denied him early release. Respondent LaManna concedes that Petitioner Boucher has exhausted the administrative remedies available to challenge that policy.

As described, the Bureau of Prisons adopted a new policy, Program Statement 5162.04, during the course of this litigation. The Bureau denied early release under this policy as well.

Petitioner Boucher challenges both the former policy and the new policy. Respondent argues that Boucher failed to exhaust available administrative remedies regarding the new policy, Program Statement 5162.04. For this reason, the Respondent says this action must be dismissed.

Exhaustion of an available administrative process is usually required before an inmate may seek relief in federal court. See McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992); see also Little v. Hopkins, 638 F.2d 953 (6th Cir.1981); Bode v. Guzik, 86 F.3d 1155 (TABLE), 1996 WL 266431, *1 (6th Cir. May 17, 1996). This requirement serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency. See McCarthy, 503 U.S. at 145, 112 S.Ct. 1081.

It is clear that Boucher has failed to exhaust his remedies regarding Program Statement 5162.04. However, the Supreme Court has declined to require exhaustion when "administrative and judicial interests would counsel otherwise." McCarthy, 503 U.S. at 146, 112 S.Ct. 1081. In determining whether exhaustion of administrative remedies is required, this Court must balance "the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion." Id. This inquiry is "intensely practical, because attention is directed to both the nature of the claim presented and the characteristics of the particular administrative procedure provided." Id. (citations omitted). Administrative remedies are not required "if the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." Id. (citing West v. Bergland, 611 F.2d 710, 715 (8th Cir.1979)).

The Supreme Court has identified at least three "broad sets" of circumstances that would warrant excusing the exhaustion requirement: (1) when requiring exhaustion would lead to undue prejudice to a later court due to likely agency delay in processing the challenge to its decision (2) when there is a question about the agency's authority or competence to respond to the challenge; and (3) when exhaustion would be futile because the administrative body is biased or has predetermined the issue before it. Id. at 147-48, 112 S.Ct. 1081.

Petitioner Boucher argues that he should be excused from failing to exhaust administrative remedies because such administrative process would be futile. Boucher says that Program Statement 5162.04 is substantively the same as program Statement 5162.02, for which Respondent concedes exhaustion. Boucher contends he should not be forced to engage in the "administrative sophistry" of another appeal of the Bureau's decision because both categorically deny a sentence reduction to prisoners who received sentence enhancements for possession of a deadly weapon during the commission of the offense.

The Court agrees that exhaustion would be futile, but for more nuanced reasons than those suggested by Petitioner Boucher.

First, the mandatory nature of the new Program Statement leaves nothing to be reconsidered during an administrative appeal. Program Statement 5162.04 automatically excludes from early release all persons who have violated 18 U.S.C. § 841 and who have received two-level sentencing enhancements for firearms possession. Therefore, even if the Bureau were to review the case and discover additional reasons for denying Boucher early release, his sentencing enhancement would mandate that he be denied early release.

Second, because the policy requires denial of early release credit, the issue is a legal one, unaffected by any resolution of factual matters in the administrative process.

Third, there is no need to offer the Bureau an opportunity to correct any errors in...