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Jenner v. Stone

United States District Court, S.D. Georgia, Dublin Division

May 16, 2018

TRAVIS JOHN JENNER, Petitioner,
v.
STACEY STONE, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE

         Petitioner, a federal inmate at McRae Correctional Facility in McRae, Georgia, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. no. 1.) Respondent has filed a motion to dismiss, (doc. no. 11), to which Petitioner has responded, (doc. no. 14). For the reasons set forth below, the Court REPORTS and RECOMMENDS that Respondent's motion to dismiss be GRANTED, (doc. no. 11), the petition be DISMISSED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         The Middle District of Florida sentenced Petitioner for child pornography distribution to sixty-six-months of imprisonment, of which he has served thirty-seven months. (Doc. no. 1, pp. 1, 22; doc. no. 11.) Petitioner states Immigration and Customs Enforcement (ICE) policy requires the placement of mandatory detainers on alien prisoners. (Id. at 6.) Because of the detainer, the Bureau of Prisons (BOP) places a public safety factor (PSF) classification of deportable alien on the prisoner. (Id. at 8-9.) As a result, aliens are prohibited from being released on their home eligibility date, which is six months prior to their projected release date. (Id. at 5-7.) Petitioner states ICE has placed a detainer on him and, as a result, he will not be eligible for release on his home eligibility date. (Id. at 12.) BOP placed two PSF classifications on Petitioner as a deportable alien and sex offender. (Id. at 27.) Petitioner's home eligibility date is November 6, 2019, and his projected release date is May 6, 2020. (Id. at 17, 29.) Petitioner argues the ICE and BOP policies violate his due process and equal protection rights. (Id. at 11, 14-15.) Petitioner admits he did not exhaust administrative remedies but argues BOP grievance remedies are futile and thus do not qualify as available remedies. (Id. at 17.)

         Petitioner filed the instant action alleging the ICE and BOP policies are discriminatory against aliens and result in six months of additional incarceration that citizens do not receive. (Id. at 3.) Petitioner contends, even though he does not contest deportation, release on the home eligibility date is not available for him because of his PSF classification as a deportable alien prisoner. (Id. at 9; doc. no. 1-1, p. 1.) Petitioner requests: (1) deportation on his home eligibility date of November 2, 2019; (2) an escort to the airport and return to his home country; (3) permission to take “whatever property home with [him] that [he] see[s] fit”; and (4) a judicial declaration that “B.O.P's arbitrary and mandatory policy to have low security inmate aliens who do not contest deportation in prison for up to SIX months longer than equally positioned U.S. citizens, as unconstitutional on its face . . . .” (Doc. no. 1-1, p. 2.)

         II. DISCUSSION

         A. Petitioner May Bring His Claims in a § 2241 Petition.

         Respondent asserts a § 2241 petition is not the proper vehicle for Petitioner's claims because they concern BOP's application of public safety factors to Petitioner and the effect on his ability to be released on his home release date, as opposed to the execution or duration of his sentence. (Doc. no. 11, p. 4.); see, e.g., Simms v. Johns, No. 5:17-CV-6, 2017 WL 6030052, at 5-6* (S.D. Ga. Oct. 17, 2017), report and recommendation adopted by, No. 5:17-CV-6, 2017 WL 6028398 (S.D. Ga. Dec. 5, 2017); Caba v. United States, No. CV 310-082, 2010 WL 5437269, at *2 (S.D. Ga. Nov. 30, 2010) report and recommendation adopted by, No. CV 310-082, 2010 WL 5441919 (S.D. Ga. Dec. 27, 2010). This Court has considered such allegations in a § 2241 petition, and the Eleventh Circuit has found challenges by a federal prisoner to his place of confinement may be considered in a § 2241 petition. United States v. Saldana, 273 Fed.Appx. 845, 846 (11th Cir. 2008); Baranwal v. Stone, No. CV 314-098, 2015 WL 171410, at *1-2 (S.D. Ga. Jan. 13, 2015). Thus, Petitioner can arguably bring his claims in a § 2241 petition, and the Court rejects Respondent's request for dismissal on this basis. In any event, Petitioner is not entitled to the relief he seeks.

         B. The Court Does Not Determine Whether Petitioner Exhausted the Available Administrative Remedies.

         Prisoners seeking habeas relief, including relief pursuant to § 2241, are subject to administrative exhaustion requirements. Santiago-Lugo v. Warden, 785 F.3d 467, 474-75 (11th Cir. 2015); Davis v. Warden, FCC Coleman-USP I, 661 Fed.Appx. 561, 562 (11th Cir. 2016). Although exhaustion of administrative remedies is not a jurisdictional requirement in a § 2241 proceeding, “that does not mean that courts may disregard a failure to exhaust and grant relief on the merits if the respondent properly asserts the defense.” Santiago-Lugo, 785 F.3d at 474-75. However, “a court may skip over the exhaustion issue if it is easier to deny . . . the petition on the merits without reaching the exhaustion question.” Id. at 475 (citation omitted).

         Respondent argues Petitioner has not exhausted because he “fail[ed] to submit any administrative remedies at any of the required levels with BOP during his incarceration.” (Doc. no. 11, p. 3.) Petitioner contends administrative review is futile because BOP makes its PSF determination based on ICE procedures, which cannot be challenged within BOP's administrative remedy system. (Doc. no. 14, p. 4.)

         The Eleventh Circuit has previously held there is no futility exception to the § 2241 exhaustion requirement because of the jurisdictional nature of the requirement for § 2241 petitions. McGee v. Warden, FDC Miami, 487 Fed.Appx. 516, 518 (11th Cir. 2012). After McGee, however, the court in Santiago-Lugo held the exhaustion requirement is not jurisdictional for § 2241 petitions. The court in Santiago-Lugo did not address whether a futility exception exists, nor has the court done so thereafter. Because it is unclear whether a futility exception exists and, if so, what standard applies, the Court will “skip over the exhaustion issue” and address Petitioner's grounds for relief on the merits. Santiago-Lugo, 785 F.3d at 475.

         C. Petitioner's Claims Fail on the Merits.

         Petitioner makes two arguments. First, he argues the “warrantless detainer” placed by ICE without the “option to waive contest of deportation” violates his due process rights and constitutes a “different punishment” than is prescribed for citizens. (Doc. nos. 1, pp. 10-11; 14, p. 8.) Second, Petitioner argues BOP policy requiring entry of the PSF classification against only alien prisoners, based on the lodging of ICE detainers, deprives them of the potential for release on their home release dates, and constitutes an equal protection violation. (Id.) Petitioner is not entitled to relief because the inability of alien prisoners ...


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