Whalen v. Fed. Bureau of Prisons, 09-CV-1572(ENV)
| Decision Date | 07 July 2011 |
| Docket Number | 09-CV-1572(ENV) |
| Parties | RICHARD J. WHALEN, Petitioner, v. FEDERAL BUREAU OF PRISONS, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Pro se petitioner Richard J. Whalen is before the Court on his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth below, Whalen's writ is denied and his petition is dismissed.
On May 24, 2000, petitioner was convicted of bank robbery in violation of 18 U.S.C. § 2113(a) and sentenced to 120 months imprisonment, followed by three years supervised release. On October 20, 2008, while serving a portion of his term at the Coolidge House, a halfway house in Boston, Whalen received a disciplinary infraction for refusing a drug test. The next day, he escaped from Coolidge House. Petitioner alleges that he was returned to custody on October 24, 2008 and was housed at the Plymouth County House of Correction by the United States Marshals Service. He has, however, submitted no evidence of his detention there, and the records submitted by the government do not reflect such a detention.
On December 4, 2008, the Coolidge House Community Discipline Committee (the "CDC") held a hearing regarding Whalen's infractions. It imposed the following sanctions for refusing to take a required drug test and failing to show up to work: (1) disallowance of 53 daysof good conduct time; (2) forfeiture of 100 days of nonvested good conduct time; (3) loss of visitation for one year; (4) restriction to noncontact visits for one year and visits only with immediate family; (5) a disciplinary transfer; (6) loss of commissary access for six months; (7) loss of telephone access for six months; and (8) transfer to a secure facility.
On December 15, 2008, BOP records indicate that petitioner was transferred to the custody of the United States Marshals Service, and, on January 23, 2009, he arrived at the Metropolitan Detention Center in Brooklyn ("MDC"). On February 9, 2009, Whalen filed a BP-10 (a regional administrative remedy) with BOP, challenging the sanctions issued at the CDC hearing. The application was initially rejected for improper filing, but after resubmission, BOP granted petitioner a new hearing. On April 22, 2009, Whalen arrived at his designated facility, United States Penitentiary Canaan in Waymart, Pennsylvania, and, approximately a week later, he appeared in person for a rehearing on his disciplinary infractions. In addition to upholding the previously imposed sanctions, the hearing officer considered the escape charge and disallowed an additional 22 days of good conduct time and 60 days of nonvested good conduct time.
Whalen filed the instant petition in the United States District Court for the District of Massachusetts, challenging the disciplinary hearing decision which resulted in, among other sanctions, a loss of 222 days1 of earned good-conduct time. His petition requested: (1) a reversal of a disciplinary hearing officer's findings; (2) the return of 222 days of earned good-conduct time; and (3) his immediate release from custody. The habeas proceeding was transferred to this district, because, at the time of filing, Whalen was incarcerated at MDC. See 28 U.S.C.§ 2241(a); Rumsfeld v. Padilla, 542 U.S. 426, 447, 124 S. Ct. 2711, 2724 (2004) (). Whalen was released from prison on July 2, 2009 and is currently on supervised release.
Pursuant to 28 U.S.C. § 2241, federal prisoners who are "in custody in violation of the Constitution or laws or treaties of the United States," may seek habeas corpus review. 28 U.S.C. § 2241(c)(3). Relief under § 2241 is available to a federal prisoner who challenges the manner in which a sentence is implemented, as opposed to challenging the underlying legality of the conviction. Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (citing Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)). A § 2241 petition is thus limited to challenges "to the execution of a sentence .. . [which] includes matters such as 'the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.'" Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (emphasis in original) (quoting Jiminian v. Nash, 245 F.3d 144, 146 (2dCir.2001)).
At threshold, the government argues that the petition should be dismissed as moot because Whalen was released from prison on July 2, 2009. Indeed, at all stages of litigation, courts are limited to hearing cases that present a case or controversy under Article III, § 2 of the Constitution. "The parties must continue to have a personal stake in the outcome of the lawsuit" and that "the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Spencer v. Kemna, 523U.S. 1, 7, 118 S. Ct. 978, 983 (1998) (internal citation omitted). Pointedly, in this context, a petitioner's habeas corpus petition is deemed moot when he attacks a sentence that has expired during the course of the proceedings. Lane v. Williams, 455 U.S. 624, 631, 102 S. Ct. 1322, 1327 (1982) (). Moreover, "[t]he hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed." Martin-Trieona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983).
The government's argument that this case is moot borders on disingenuous. If standing in Whalen's shoes, counsel would know that petitioner has not "finished serving his sentence" because his liberty remains restricted by supervised release. See, e.g., Tisdale v. Menifee, 166 F. Supp. 2d 789, 791 (S.D.N.Y. 2001) (quoting Jones v. Cunningham, 371 U.S. 236, 242, 83 S. Ct. 373, 377 (1963)) (Allowing petitioner to pursue his § 2241 habeas claim because his supervised release was considered being "in custody"). There is no question, moreover, that 28 U.S.C. § 2243 authorizes the district court to provide habeas relief as law and justice require, including a reduction in a petitioner's term of supervised release. Levine, 455 F.3d at 77 (citing Sash v. Zenk, 428 F.3d 132, 133 (2d Cir. 2005)); see 18 U.S.C. § 3583(e) (). Here, if Whalen's 222 days of good conduct time is credited, it would decrease the remaining period of supervised release, which "would constitute effectual relief." Levine, 455 F.3d at 77. See also Preiser v. Rodriguez, 411 U.S. 475. 481. 93 S. Ct. 1827, 1832 (1973) (). Whalen's petition is, therefore, far from moot.
His petition is also far from a winner. It suffers from other procedural bars. A federalprisoner seeking relief from adverse custodial conditions under § 2241 must first exhaust his federal administrative remedies. Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001). Since BOP is the agency responsible for administering a federal prisoner's sentence, a petitioner must first exhaust all available administrative remedies provided by BOP before seeking any judicial review. See Bogarty v. Warden of MDC. Brooklyn, 09-cv-3711, 2009 WL 4800089, at *1 (E.D.N.Y. Dec. 11, 2009) (citing United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997)); Stergios v. United States, 09-cv-5108, 2010 WL 169484, at *2 (E.D.N.Y. Jan. 15,2010). But because "[j]udicial exhaustion is not a jurisdictional requirement... the court may excuse exhaustion if it appears that an administrative appeal would be futile, or because the appeals process is shown to be inadequate to prevent irreparable harm to the [petitioner]." United States v. Basciano, 369 F. Supp. 2d 344, 348 (E.D.N.Y. 2005) (internal citations omitted).
Inmate disciplinary procedures are outlined in 28 C.F.R. § 541 and BOP's administrative remedy procedure for federal inmates is provided in 28 C.F.R. § 542. Under § 542.10(a), an inmate may "seek formal review of an issue relating to any aspect of his/her own confinement" through the administrative remedy program. The program provides that an initial appeal (known as the BP-10) must be submitted to the Regional Director for the region where the inmate is incarcerated, and, if the inmate is unsatisfied with the response, he may file an appeal (known as the BP-11) with the General Counsel within 30 calendar days of the date the Regional Director signed the response. 28 C.F.R. §542.15(a). "Appeal to the General Counsel is the final administrative appeal." Id.; see also Stergios, 2010 WL 169484, at *2 () (internal quotation and citation omitted).
With no apparent dispute about it, the record reflects that Whalen did initiate administrative proceedings in that he appealed the hearing officer's determination by filing a BP-10 on February 9, 2009. After it was rejected for improper filing, he filed again on March 2, 2009. He then filed the instant habeas petition on March 31, 2009, prior to his new hearing, and...
To continue reading
Request your trial