United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
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.
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.)
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.)
Petitioner May Bring His Claims in a § 2241
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
The Court Does Not Determine Whether Petitioner Exhausted the
Available Administrative Remedies.
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
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.)
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.
Petitioner's Claims Fail on the Merits.
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 ...