Palomino v. Federal Bureau of Prisons, Civ.A. H-05-2659.
| Decision Date | 30 December 2005 |
| Docket Number | No. Civ.A. H-05-2659.,Civ.A. H-05-2659. |
| Citation | 408 F.Supp.2d 282 |
| Parties | Kendra PALOMINO, Petitioner, v. FEDERAL BUREAU OF PRISONS, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
Kendra Palomino, Bryan, TX, pro se.
James L. Turner, U.S. Attorney's Office, Houston, TX, for Respondent.
Federal prison inmate Kendra Palomino (# 47113-180) brings this action seeking federal habeas corpus relief under 28 U.S.C. § 2241, seeking relief from a policy decision made by the United States Bureau of Prisons and its effect on her sentence. The respondent has filed a motion to dismiss. (Docket Entry No. 11). The petitioner has filed a response. (Docket Entry No. 12). After reviewing all of the pleadings, the exhibits, and the applicable law, the Court grants the respondent's motion and dismisses this case for reasons that follow.
On December 1, 2004, Palomino was sentenced to serve twelve months and one day of imprisonment by the United States District Court for the Western District of Texas, El Paso Division, following her conviction for conspiracy to import marijuana. The sentencing court reportedly recommended that Palomino be placed in the Intensive Confinement Center ("ICC") or "boot camp" program. Palomino does not challenge the validity of her underlying conviction. Instead, Palomino contends that she is entitled to federal habeas corpus relief under 28 U.S.C. § 2241 because the United States Bureau of Prisons (the "BOP") terminated its boot camp program for budgetary reasons in January of 2005, after her sentence was imposed.
The petitioner seeks federal habeas corpus relief, arguing that the abrupt cancellation of the boot camp program violated the notice-and-comment requirement for agency rule making under the Administrative Procedure Act and the congressional mandate in the governing statute. She complains further that the cancellation violated the Due Process Clause because she was sentenced based on misinformation. In addition, she contends that the cancellation has retroactively extended her sentence in violation of the Ex Post Facto Clause. The petitioner asks this Court to correct her sentence to conform to the sentencing court's original intent by re-sentencing her to six months of imprisonment, followed by three months in a halfway house and three months in home confinement.
The respondent has filed a motion to dismiss, arguing that the petitioner has failed to exhaust her administrative remedies. The respondent argues further that the petitioner lacks standing to challenge the BOP's decision to discontinue its boot camp program. Alternatively, the respondent maintains that the petition fails to state a claim upon which relief can be granted. The parties' contentions are addressed below.
A petition for a writ of habeas corpus under 28 U.S.C. § 2241 is correctly used to challenge the manner in which a sentence is executed. See Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001). A § 2241 petition that attacks the manner in which a sentence is carried out or a determination affecting the length of its duration "must be filed in the same district where the prisoner is incarcerated." Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.2000) (citations omitted). Because the petitioner is in custody at the nearby Federal Prison Camp in Bryan, Texas, this Court has jurisdiction over her petition.
To prevail, a habeas corpus petitioner must show that she is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, a federal district court may dismiss a habeas corpus proceeding if it appears from the face of the petition that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996) (); see also 28 U.S.C. § 2243.
The boot camp program formerly run by the BOP was authorized by the Crime Control Act of 1990, Pub.L. No. 101-647, § 3001, 104 Stat. 4789, codified at 18 U.S.C. § 4046. Pursuant to that statute, Congress provided that the Bureau of Prisons "may place in a shock incarceration program any person who is sentenced to a term of imprisonment of more than 12, but not more than 30 months." 18 U.S.C. § 4046(a). Congress envisioned that participants in this program would "adhere to a highly regimented schedule that provides the strict discipline, physical training, hard labor, drill, and ceremony characteristic of military basic training," while completing educational or rehabilitative programs. 18 U.S.C. § 4046(b). Consistent with this statute, the BOP developed a "specialized program combining features of a military boot camp with the traditional correctional values" of the BOP, the goal of which was to "promote personal development, self-control, and discipline." 28 C.F.R. § 524.30. An inmate who successfully completed the institution-based component of the program ordinarily could have been eligible to serve the remainder of her sentence in a community-based program, and if successful there and had a period of supervised release to follow, would have been eligible for up to a six-month reduction in her sentence. See 28 C.F.R. § 524.32(d).
The BOP established a boot camp program for female inmates at the Federal Prison Camp in Bryan, Texas, where the petitioner presently resides. (U.S. Dep't of Justice, Federal Bureau of Prisons, Institution Supplement BRY 5390.08D, January 31, 2004). Inmates who met the eligibility requirements and who were approved for participation could be placed in the program for six months. (Id.). Participation in the boot camp program was voluntary. (Id.). In that respect, inmates arriving at the Federal Prison Camp were obliged to submit an inmate request form to a staff member to advise the BOP of their desire to participate in the program. (Id.). Once an inmate applied to participate in the boot camp program, participation was contingent on the successful completion of a psychological and medical screening process to determine the inmate's mental and physical abilities. (Id.). Unit management staff also completed a review of the inmate's file to determine whether her participation in the boot camp program was appropriate. (Id.).
In a memorandum dated January 14, 2005, BOP Director Harley G. Lappin issued a memorandum to the federal judiciary and other court personnel to announce that inmates would no longer have the option to participate in the boot camp program, which would terminate immediately after those currently enrolled had completed the program. (Memorandum for Federal Judges, Chief Probation Officers, Federal Public Defenders, and United States Attorneys, January 14, 2005, from Director Harley G. Lappin). Director Lappin explained that the BOP's decision followed a "national trend among correctional agencies" to phase out such programs based on lack of success and costliness. (Id.). He reported that, "[d]espite anecdotal successes, research has found no significant difference in recidivism rates between the inmates who complete boot camp programs and similar offenders who serve their sentences in traditional institutions." (Id.). Director Lappin explained that the costs associated with maintaining federal boot camp programs far exceeded the costs of operating ordinary minimum security prison camps. (Id.). "The lack of significant beneficial results, coupled with recent budgetary constraints," led the BOP to conclude that it could "no longer justify the expenditure of public funds to operate the [boot camp] programs." (Id.).
The respondent objects that the petitioner has failed to exhaust her administrative remedies before filing this suit. The Fifth Circuit has determined that a federal prisoner seeking relief under 28 U.S.C. § 2241 "must first exhaust his administrative remedies through the Bureau of Prisons." Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.1993) ( ) .
The BOP has established a three-tiered administrative remedy procedure for federal prisoners. See 28 C.F.R. §§ 542.10-542.19 (2003). Under this system, an inmate may file a formal grievance with the warden if informal resolution is not successful. See id. at § 542.13. Once the warden denies an inmate's grievance, the prisoner may appeal to the Regional Director. If dissatisfied with that response, the inmate may pursue a final appeal to the BOP's Office of General Counsel. See id. at § 542.15(a). Administrative remedies have not been exhausted until the inmate's claim has been filed and denied at all levels. See Irwin v. Hawk, 40 F.3d 347, 349 n. 2 (11th Cir.1994), cert denied, 516 U.S. 835, 116 S.Ct. 112, 133 L.Ed.2d 64 (1995).
The petitioner concedes that she has failed to pursue administrative remedies. She argues that exhaustion would be futile, however, because the decision to terminate the boot camp program was final. This would be true if the petitioner's sole objective was to gain entry into the boot camp program. She does not request this type of relief. If that were her sole request, then her petition would be moot...
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