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Keslinke v. Salazar

United States District Court, D. Oregon

January 16, 2019

ANTHONY G. KESLINKE, Petitioner,
v.
JOSIAS SALAZAR, Warden, Sheridan - Federal Prison Camp, Respondent.

          ANTHONY G. KESLINKE 19491-111, Sheridan - Federal Prison Camp Inmate Mail/Parcels Petitioner Pro Se

          BILLY J. WILLIAMS United States Attorney

          JARED HAGER Assistant United States Attorney

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE

         Petitioner, an inmate at FPC Sheridan, brings this habeas corpus action pursuant to 28 U.S.C. § 2241. For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus (ECF No. 1).

         BACKGROUND

         Petitioner was convicted in the United States District Court for the Northern District of California on charges of Conspiracy to Commit Bank Fraud and Conspiracy to Launder Monetary Instruments, and was sentenced to 4 8 months of imprisonment and three years of post-prison supervised release. The Federal Bureau of Prisons ("BOP") approved Petitioner for early release to a Residential Reentry Center ("RRC") for 126 days. Petitioner wants an additional six weeks for a total of 179 days. Petitioner alleges the BOP violated his due process and equal protection rights by refusing to allow the additional six weeks of placement at a RRC.

         Respondent contends Petitioner is not entitled to habeas j corpus relief because Petitioner failed to exhaust his available administrative remedies, because this Court lacks subject matter jurisdiction to review the BOP's RRC placement decisions under 18 U.S.C. § 3 625, and because, in any event, the BOP did not violate Petitioner's due process or equal protection rights. Although he was given the opportunity to do so, Petitioner did not file a reply j brief addressing Respondent's arguments. j

         LEGAL STANDARDS

         Under 28 U.S.C. § 2241, a district court may grant habeas relief when a petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c) (3) . "A necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination by the federal court that [his] custody violates the Constitution, laws, or treaties of the United States." Rose v. Hodges, 423 U.S. 19, 21 (1975) (citing 28 U.S.C. § 2241) .

         DISCUSSION

         I. Exhaustion of Administrative Remedies

         A federal prisoner bringing a § 2241 claim to challenge the execution of his sentence must first exhaust his administrative remedies. Martinez v. Roberts, 804 F, 2d 570, 571 (9th Cir. 1986). "As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under 28 U.S.C. § 2241." Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). Exhaustion under § 2241 is not, however, a jurisdictional requisite. Id., The exhaustion requirement may be waived when pursuit of administrative remedies would be futile. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) . Exhaustion has been held to be futile when the request for relief was denied based on an official policy or when administrative remedies are inadequate or ineffective, irreparable injury would result, or when administrative proceedings would be void. See, e.g., Ward, 678 F.3d at 1045-46; Laing v. Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2004).

         Respondent contends Petitioner did not exhaust his administrative remedies because he has not completed the administrative appeal process. Petitioner concedes he did not exhaust his administrative remedies before filing his Petition, but alleges that exhaustion would be futile and should be waived. Respondent counters that exhaustion is not futile because the highest reviewing official clearly would not be precluded by policy from reviewing and reversing the decisions of the Warden and Regional Direct to deny additional RRC time. This Court ...


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