Free Order - District Court of California - California

Case 4:07-cv-02925-CW

Document 8

Filed 12/14/2007

Page 1 of 5

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner Dianne Aragon brings this action seeking a writ of habeas corpus under 28 U.S.C. § 2241. In opposing the petition, v. SCHELIA A. CLARK, Warden, Respondent. / DIANNE ARAGON, Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS No. C 07-2925 CW FOR THE NORTHERN DISTRICT OF CALIFORNIA

Respondent Schelia A. Clark argues that it should be dismissed because Petitioner has not exhausted her administrative remedies. Petitioner has submitted a traverse responding to this argument. The matter was taken under submission on the papers. Having

considered all of the papers submitted by the parties, the Court denies the petition. BACKGROUND Petitioner is currently serving a term of fifteen months of imprisonment on a conviction for conspiracy to distribute a mixture containing methamphetamine and cocaine. She is incarcerated at the

Federal Prison Camp in Dublin, California, where Respondent is

Case 4:07-cv-02925-CW

Document 8

Filed 12/14/2007

Page 2 of 5

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

warden.

She filed this petition challenging a Bureau of Prisons

(BOP) regulation, 28 C.F.R. § 570.21, that denies inmates placement in a community corrections center (CCC)1 until the last ten percent or six months of their sentence, whichever is shorter. Petitioner

claims that this policy is contrary to 18 U.S.C. § 3621(b), which governs the placement of inmates in BOP custody. Pursuant to the challenged regulation, Petitioner has been scheduled for transfer to a CCC on December 28, 2007, the beginning of the last ten percent of her sentence. She seeks an order

requiring Respondent to consider her appropriateness for transfer to a CCC in light of the factors set forth in 18 U.S.C. § 3621(b), notwithstanding the time limits imposed by 28 C.F.R. § 570.21. claims to be "in the process of exhausting her administrative remedies through the BOP's administrative appeals process." at 3. Pet. She

However, Respondent has filed a declaration with supporting

documentation showing that Petitioner has not filed a request for an administrative remedy at any level on any issue. DISCUSSION The Ninth Circuit requires, "as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241." INS, 239 F.3d 1037, 1047 (9th Cir. 2001).2
1

Castro-Cortez v.

The requirement may be

CCCs were formerly known as halfway houses. Respondent uses the term "residential reentry center" to refer to the same type of institutional setting. Because exhaustion is required under this authority, the Court need not consider Respondent's argument that the Prison Litigation Reform Act, 42 U.S.C. § 1997e, also requires exhaustion of administrative remedies in this case. 2
2

Case 4:07-cv-02925-CW

Document 8

Filed 12/14/2007

Page 3 of 5

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

waived in limited circumstances, including when pursuit of administrative remedies would be futile. See Laing v. Ashcroft,

370 F.3d 994, 1000-01 (9th Cir. 2004) (listing circumstances when waiver of the exhaustion requirement may be appropriate). Petitioner argues that pursuing administrative remedies would be futile here because the BOP promulgated the challenged regulation under a categorical exercise of its discretion, and the regulation does not permit exceptions for individual inmates. However, Petitioner's unsupported contention that administrative remedies would be futile does not persuade the Court to waive the exhaustion requirement. The Court notes that all four of the

circuit courts that have considered the validity of the BOP's policy have found it invalid. Wedelstedt v. Wiley, 477 F.3d 1160

(10th Cir. 2007); Levine v. Apker, 455 F.3d 71 (2d Cir. 2006); Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005). Several district

courts in the Ninth Circuit have also found the policy contrary to 18 U.S.C. § 3621(b). See Whistler v. Wrigley, 2007 WL 1655787, at

*3 (E.D. Cal.) (listing cases). Recent actions of the BOP suggest that it may be reconsidering its policy in response to the numerous cases rejecting its regulation as contrary to statute. For instance, in Whistler, the

BOP informed the court that it had evaluated the petitioner's request for administrative relief without reference to the time constraints imposed by 28 C.F.R. § 570.21 and had transferred him to a CCC, leading the court to dismiss the petition as moot. at *6-*7. Id.

Consequently, it is not clear that Petitioner's pursuit 3

Case 4:07-cv-02925-CW

Document 8

Filed 12/14/2007

Page 4 of 5

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of administrative remedies would be futile; there is a possibility that BOP officials will provide her the relief she seeks. Multiple

courts in this district have recognized this possibility, and have required other habeas petitioners challenging the BOP regulation to exhaust their administrative remedies. See, e.g., Carrillo v.

Clark, 2007 WL 3026674 (N.D. Cal.); Rojero v. Clark, 2007 WL 3026415 (N.D. Cal.); Espinoza v. Clark, 2007 WL 2990157 (N.D. Cal.); Cristobal v. Clark, 2007 WL 2746742 (N.D. Cal.); Zavala v. Clark, 2007 WL 2705216 (N.D. Cal.); Reyna v. Copenhager, 2007 WL 2504983 (N.D. Cal.); Felty v. Clark, 2007 WL 2438337 (N.D. Cal.). The Court agrees with the reasoning of these decisions, and concludes that waiver of the exhaustion requirement is not warranted in this case. CONCLUSION For the foregoing reasons, the Court DENIES Petitioner's petition for a writ of habeas corpus without prejudice to her filing a new one after exhausting the BOP's administrative appeals process. The clerk shall close the file.

IT IS SO ORDERED.

Dated: 12/14/07 CLAUDIA WILKEN United States District Judge

4

Case 4:07-cv-02925-CW

Document 8

Filed 12/14/2007

Page 5 of 5

1 2 3 DIANNE ARAGON, 4 Plaintiff, 5 v. 6

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV07-02925 CW CERTIFICATE OF SERVICE SCHELIA A. CLARK et al,

7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Dennis Matthew Wong U.S. Attorney's Office 450 Golden Gate Avenue San Francisco, CA 94102 Dianne Aragon #27331-051 FPC-Dublin 5675 8th St. Camp Park Dublin, CA 94568 Dated: December 14, 2007 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 14, 2007, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.