Marshall v. English ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 9, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
JONATHAN MARSHALL, SR.,
Petitioner - Appellant,
v. No. 19-3236
(D.C. No. 5:19-CV-03113-JWL)
DON HUDSON, * Warden, USP- (D. Kan.)
Leavenworth,
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT **
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
_________________________________
Jonathan Marshall, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2241 petition. In his petition, Marshall seeks home
release under the First Step Act’s pilot program for eligible-elderly offenders. The
district court denied Marshall’s petition after concluding that the Attorney General
has the sole discretion to include eligible offenders in the pilot program. We affirm.
*
We have substituted the current warden of Leavenworth, Don Hudson, for the
former warden of Leavenworth, Nicole English, under Federal Rule of Civil
Procedure 25(d).
**
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
I. Factual Background
On April 4, 2006, a grand jury indicted Marshall and his sister, Cheryl
Abercrombie, for tax fraud. Marshall v. United States, No. A06-CR-067(1)-LY, 2010
WL 2232808, at *1 (W.D. Tex. June 1, 2010). The indictment included forty counts,
all of which named Marshall as a defendant. Id. Specifically, the first count charged
him “with corrupt interference with internal revenue laws and aiding and abetting, in
violation of 26 U.S.C. § 7212(a) and 18 U.S.C. § 2,” while “counts two through forty
charged Marshall with assisting in filing false income tax returns and aiding and
abetting, in violation of 26 U.S.C. § 7206(2) and 18 U.S.C. § 2.” Id.
After an eleven-day trial, the jury found Marshall guilty on every count. Id. As
a result, on February 16, 2007, the district court sentenced Marshall to 216 months in
prison. Id. The Fifth Circuit dismissed Marshall’s direct appeal of his sentence “for
want of prosecution.” Id. (citing United States v. Marshall, No. 07–50294 (5th Cir.
Jan. 8, 2008)). Marshall’s later collateral attacks on his sentence were, likewise,
unsuccessful. United States v. Marshall, 431 F. App’x 314, 315 (5th Cir. 2011)
(unpublished); Marshall v. United States, No. A-06-CR-067(1)-LY, 2010 WL
743791, at *1–19 (W.D. Tex. Mar. 3, 2010) (concluding that Marshall’s twenty-eight
pronged § 2255 petition, which asserted “a sea of novel claims,” did not warrant
habeas relief).
2
With his direct and collateral challenges rejected, Marshall was forced to
complete his 216-month sentence, which he is serving in Leavenworth, Kansas. On
June 24, 2019, after completing 148 months of that sentence, Marshall filed a 167-
page petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States
District Court for the District of Kansas. Marshall was sixty-nine years old when he
filed his petition.
Unlike his earlier collateral attacks, this petition did not challenge his
sentence. Instead, he sought placement in the “‘ELDERLY OFFENDER PROGRAM’
with unescorted furlough transfer to Halfway House and Home Detention from
[Bureau of Prisons (BOP)] FACILITY—BEFORE 06/10/19.” R. at 6 (emphasis
removed). He claimed that the BOP had “arbitrarily” failed to approve his application
to be placed in the program and, thereby, denied his chance at home detention. Id. at
6–7.
The details about Marshall’s application and the BOP’s resulting review of it
are hard to glean from Marshall’s habeas petition, which the district court later called
“largely incomprehensible[.]” Id. at 247. Yet a review shows that, on January 15,
2019, Marshall submitted an “appeal to the warden,” seeking placement in the
elderly-offender program. Id. at 34 (capitalization removed). 1 On January 28, 2019,
1
On December 20, 2018, Marshall sent his “case manager” an “inmate request
to staff,” seeking “a regular schedule or unscheduled[d] UNIT TEAM MEETING and
INITIAL CLASSIFICATION and PROGRAM REVIEW.” R. at 46 (capitalization
removed). Whether this related to Marshall’s request to be placed in the pilot
program is unclear.
3
the warden denied Marshall’s request. As grounds, the warden noted that inmates
must first attempt to informally resolve their complaints before “submit[ting] a
Request for Administrative Remedy.” Id. at 65. The warden concluded that Marshall
had not, in fact, attempted to “informally resolve [his] request.” Id. Further, the
warden said that “there was no valid reason for bypassing an informal resolution.” Id.
If Marshall wished to appeal the decision, the warden noted that he needed to do so
within twenty days of her letter.
Sixteen days later, on February 13, Marshall “executed” a “regional
administrative remedy appeal.” Id. at 64 (capitalization removed). Marshall noted
that he had “tried to talk to Unit Team over the Past 8-MONTHS and [he] believe[d]
that [he] could be transferred – ANY DAY, NOW.” Id. Marshall alleged that
“THERE HAS ALREADY BEEN ACUTE VIOLATIONS OF CRIMINAL
OFFENSES AND CRIMES BY BOP NAMED STAFFS.” Id.
On March 1, 2019, the BOP’s regional coordinator noted that Marshall’s
appeal had not been received until February 26, 2019. Thus, the regional coordinator
denied Marshall’s appeal, concluding that it was “untimely” by nine days. Id. at 79.
The regional coordinator noted that Marshall could resubmit his appeal within ten
days if he also provided “staff verification on BOP letterhead that untimeliness was
not [his] fault.” Id. (capitalization removed).
Although Marshall was unable to persuade any BOP staff to verify that his
appeal was timely submitted, he did convince a fellow inmate, Zack Dyab, to help.
Under “PENALTY OF PERJURY,” Dyab testified that he witnessed “Marshall
4
mailing his envelope on Thursday, February 14, 2019 (It was Valentine[’s] Day) at
6:00 P.M. properly address[ed] with postage pre-paid.” Id. at 87. Marshall claims that
he was unable to receive staff verification that his appeal was timely because a BOP
staff member told him that he would not “be sending any ‘Love-Notes’ with [his]
grievances.” Id. at 7.
Dyab’s affidavit was not enough. On his appeal of the regional coordinator’s
decision to the BOP’s central office, the central office rejected Marshall’s appeal,
“concur[ring] with [the] rationale of regional office for rejection.” Id. at 111
(capitalization removed). On April 22, 2019, the central office, like the regional
office, directed Marshall to have “staff provide a memo stating the late filing was not
your fault[.]” Id. (capitalization removed). At that point, it appears that Marshall gave
up on the BOP and turned to the courts by filing his current June 24, 2019 habeas
petition.
II. Procedural Background
Screening Marshall’s § 2241 petition under “Rule 4 of the Rules Governing
Habeas Corpus Cases,” the district court first construed Marshall’s petition as
seeking “participation in the ‘Elderly Offender Program’ under the Second Chance
Act and the First Step Act[.]” Id. at 176. 2 The district court reasoned that to
2
Although Rule 4 relates to § 2254 petitions, a district court has discretion to
screen a § 2241 petition. See Boutwell v. Keating, 399 F.3d 1203, 1210 n.2 (10th Cir.
2005).
5
participate in the program as an “eligible elderly offender,” Marshall needed to be a
prisoner
(i) who is not less than 60 years of age;
(ii) who is serving a term of imprisonment that is not life imprisonment
based on conviction for an offense or offenses that do not include
any crime of violence (as defined in section 16 of Title 18), sex
offense (as defined in section 20911(5) of this title), offense
described in section 2332b(g)(5)(B) of Title 18, or offense under
chapter 37 of Title 18, and has served 2/3 of the term of
imprisonment to which the offender was sentenced;
(iii) who has not been convicted in the past of any Federal or State
crime of violence, sex offense, or other offense described in clause
(ii);
(iv) who has not been determined by the Bureau of Prisons, on the basis
of information the Bureau uses to make custody classifications,
and in the sole discretion of the Bureau, to have a history of
violence, or of engaging in conduct constituting a sex offense or
other offense described in clause (ii);
(v) who has not escaped, or attempted to escape, from a Bureau of
Prisons institution;
(vi) with respect to whom the Bureau of Prisons has determined that
release to home detention under this section will result in a
substantial net reduction of costs to the Federal Government; and
(vii) who has been determined by the Bureau of Prisons to be at no
substantial risk of engaging in criminal conduct or of endangering
any person or the public if released to home detention.
Id. at 178 (quoting 34 U.S.C. § 60541(g)(5)(A)). If Marshall met this seven-part
definition, then the court recognized that the “Attorney General may release” him to
home detention. Id. at 177 (quoting 34 U.S.C. § 60541(g)(1)(B)).
Applying this definition, the district court found that Marshall had “fail[ed] to
present any evidence that he ever applied to the BOP to participate in a pilot
[program].” Id. at 178. Still, the court “recognize[d] that it is possible that this
6
information is contained somewhere in the disjointed, 167-page Petition[.]” Id. at
179.
But even if Marshall were eligible for home detention under § 60541(g)(5)(A),
the court reasoned that Marshall’s § 2241 petition sought unobtainable relief. The
court noted that “the Supreme Court has held that a prisoner has no constitutional
right to confinement in any particular place, including in home confinement.” Id.
(citations omitted). Also, it concluded that because the First Step Act of 2018
provides the Attorney General with the sole discretion to decide if an inmate qualifies
for home detention, “the Court ha[d] no authority under § 60541(g) to order home
detention[.]” Id. at 181–82. Thus, the court ordered that Marshall show good cause
why it should not dismiss his habeas petition.
Marshall’s attempt to do so was unresponsive. He said that he was “serving a
‘TRIPLE-SECRET INCARCERATION,’” that he was “[t]he Longest-Serving-
Dallas-County-Jail-(DCJ)-Inmate in DCJ[’]s HISTORY,” and that he was “the
Longest-Serving-Person in the U.[S]. History held on CONTEMPT.” Id. at 189.
Marshall claimed that he had exhausted his administrative remedies, arguing that his
application had been denied because of some “SMOKING-GUNS” of
“COMPELLING CIRCUMSTANCES.” Id. at 191 (internal quotation marks omitted).
He asserted that “the A.G. or BOP . . . [has] an absolute right choice on pretending to
play an endgame according to EX PARTE situation[,]” and that his § 2241 petition
should not be dismissed because the United States never filed a response. Id. at 193.
As for his application to the elderly-offender program, Marshall questioned “[w]hy
7
did the High-Levels Bureau officials violate Congress Mandate by NEVER
reviewing” his application. Id. at 200 (internal quotation marks omitted).
The district court considered Marshall’s response “largely incomprehensible”
and mostly “irrelevant,” with large segments referring to “past unrelated grievances
and administrative exhaustion—an issue not raised in the Court’s Memorandum and
Order.” Id. at 247. Thus, the court dismissed Marshall’s petition. Marshall filed a
timely notice of appeal. 3
DISCUSSION
I. Jurisdiction and Scope of Review
As a matter of first importance, we must ensure that Marshall properly invokes
our habeas jurisdiction. Under 28 U.S.C. § 2241, “[t]he writ of habeas corpus shall
not extend to a prisoner unless . . . [h]e is in custody under or by color of the
authority of the United States” or “is in custody in violation of the Constitution or
laws or treaties of the United States[.]” Id. § 2241(c)(1), (3). Petitions relying on
§ 2241 are appropriate to “attack the execution of a sentence[.]” Sandusky v. Goetz,
944 F.3d 1240, 1246 (10th Cir. 2019) (internal quotation marks omitted) (quoting
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997)). A § 2241
petition cannot be used to “challenge the legality of [a] sentence.” Licon v. Ledezma,
638 F.3d 1303, 1311 (10th Cir. 2011).
3
Marshall does not need a certificate of appealability to appeal a final order
denying § 2241 relief. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1
(10th Cir. 1997).
8
Though it does not appear that any circuit court of appeals has weighed in, the
district courts that have considered the issue have universally ruled that federal courts
have no power to order that an inmate be placed in the First Step Act’s elderly-
offender pilot program—that decision falls squarely within the Attorney General’s
discretion. See, e.g., United States v. Crawford, No. 1:07CR317-1, 2019 WL
6615188, at *6 (M.D.N.C. Dec. 5, 2019); Stark v. Rios, No. 19-cv-375 (ECT/SER),
2019 WL 2796766, at *2 (D. Minn. June 5, 2019), report and recommendation
adopted, No. 19-cv-00375 (ECT/SER), 2019 WL 2766525 (D. Minn. July 2, 2019);
Zheng Yi Xiao v. La Tuna Fed. Corr. Inst., No. EP-19-CV-97-KC, 2019 WL
1472889, at *3 (W.D. Tex. Apr. 3, 2019). Relying on this line of reasoning, the
district court here concluded that “the BOP’s placement determinations, including
those regarding home confinement, are expressly insulated from judicial review.” R.
at 247.
We agree that, under § 2241, federal courts have no power to order that an
inmate be placed in the pilot program. Section 60541(g)(1)(B) states that “the
Attorney General may release some or all eligible elderly offenders and eligible
terminally ill offenders from Bureau of Prisons facilities to home detention, upon
written request.” (emphasis added). And the Attorney General has discretion to
determine whether a particular offender qualifies as eligible because he is in charge
of determining whether the inmate poses a “substantial risk of engaging in criminal
conduct or of endangering any person or the public if released to home detention.”
§ 60541(g)(5)(A)(vii). Accordingly, Congress has vested the executive branch, not
9
the judicial branch, with the final say on whether to include certain prisoners in the
pilot program.
But even so, we disagree with the district court’s broad language that all
“placement determinations . . . are expressly insulated from judicial review.” R. at
247. Under an earlier version of the pilot program—created by the Second Chance
Act—we concluded that we had jurisdiction to consider § 2241 petitions challenging
the BOP’s statutory interpretation of 42 U.S.C. § 17541(g). Mathison v. Davis, 398 F.
App’x 344, 345 (10th Cir. 2010) (unpublished) (explaining that the court had
“jurisdiction under 28 U.S.C. §§ 1291 and 2253(a)”); Izzo v. Wiley, 620 F.3d 1257,
1258 (10th Cir. 2010) (same).
For example, in Izzo, we concluded that we had jurisdiction to consider a
seventy-year-old federal prisoner’s challenge to the BOP’s interpretation of the
phrase “term of imprisonment.” 620 F.3d at 1258–59. Under the statutory language
then in effect, inmates would qualify for the pilot program only if they had served
“the greater of 10 years or 75 percent of the term of imprisonment to which the
offender was sentenced.” Id. at 1258 (internal quotation marks omitted) (quoting 42
U.S.C. § 17541(g)(5)(A)(ii)). Izzo argued that the BOP needed to consider good-time
credit when calculating whether he had served seventy-five percent of his term of
imprisonment. Id. at 1259. The BOP disagreed, asserting that the “term of
imprisonment” related to the “imprisonment imposed by the sentencing court(s),
whether stated in days, months, or years.” Id. (internal quotation marks omitted). We
10
rejected Izzo’s argument, concluding that “the ‘term of imprisonment’ unmistakably
refers to the term imposed by the sentencing court.” Id. at 1260.
Though Izzo’s interpretation of the phrase “term of imprisonment” is irrelevant
here, Izzo is still significant because it illustrates that § 2241 petitions can have some
limited applicability in this context. Despite the discretionary nature of home release
under § 17541, we still considered Izzo’s § 2241 petition challenging the BOP’s
interpretation of the statute. Izzo, 620 F.3d at 1260. So though § 2241 might not be
proper to challenge the Attorney General’s actual exercise of discretion to deny an
inmate access to the home-release pilot program, Izzo keeps § 2241 available as an
avenue for prisoners to raise arguments concerning the procedures through which the
Attorney General has exercised discretion. See also Immigration & Naturalization
Serv. v. St. Cyr, 533 U.S. 289, 307 (2001) (noting that, historically, “[h]abeas
courts . . . regularly answered questions of law that arose in the context of
discretionary relief” (citations omitted)); Sierra v. Immigration & Naturalization
Serv., 258 F.3d 1213, 1217 (10th Cir. 2001) (concluding that, even when a statute
gives the Attorney General discretion over certain decisions, “challenges [to] the
constitutionality of the procedures used” are properly raised under § 2241 because
“[i]t is never within the Attorney General’s discretion to act unconstitutionally”
(citations omitted)). 4
4
Though we have stated that prisoners seeking to challenge “exclusion from
prison programs” must bring their claims under “Section 1983 or Bivens [v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)],” Boyce v.
11
That leaves us with an issue of characterization. We must decide whether
Marshall seeks a court order granting him access to the pilot program (outside our
jurisdiction), or whether Marshall seeks a court order remedying some unlawful
procedure through which the BOP processed his application (within our jurisdiction).
II. Standard of Review
We review de novo the district court’s dismissal of Marshall’s § 2241 petition.
See Abernathy v. Wandes, 713 F.3d 538, 544 (10th Cir. 2013) (citing Brace v. United
States, 634 F.3d 1167, 1169 (10th Cir. 2011)). Because Marshall proceeds pro se, we
review his pleading liberally. United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
2009) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In reviewing
his pleading liberally, we stop short of fashioning arguments on his behalf. United
States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019).
Ashcroft, 251 F.3d 911, 914 (10th Cir.), vacated as moot, 268 F.3d 953 (10th Cir. 2001),
in Mathison and Izzo, we announced that we had habeas jurisdiction to consider
Mathison’s and Izzo’s § 2241 petitions challenging the BOP’s rejection of their
applications to the pilot program. Mathison, 398 F. App’x at 345; Izzo, 620 F.3d at 1258.
We follow Mathison and Izzo here and likewise conclude that we have habeas
jurisdiction—Marshall properly brought this action under § 2241 rather than Bivens. See
also Palma-Salazar v. Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012) (“This court’s
precedents . . . indicate the types of claims cognizable under § 2241 are those in which an
individual seeks either immediate release from, or a shortened period of, physical
imprisonment, i.e., placement on parole or in a parole-like custodial setting[.]” (emphasis
added) (citations omitted)).
12
III. Analysis
We have independently reviewed Marshall’s § 2241 petition, and we agree
with the district court’s description—it is largely incomprehensible. When asked to
state what relief he requests, Marshall says that he wants
THE COURT to ISSUE ORDER(S) that MARSHALL is being arbitrarily
denied RIGHTS and STATUS under the TERM “ELIGIBLE ELDERLY
OFFENDER” and THE SECOND CHANCE ACT OF 2007 . . . and
“ORDER” review by High-Level Bureau Officials to note
MARSHALL’S FORMAL QUALIFICATIONS . . . ; with HOME
CONFINEMENT for [H]is remaining sentence on about JUNE 10, 2019
with IMMEDIATE UNESCORTED FURLOUGH TRANSFER TO
DALLAS, TEXAS (VOA –NOTE– PAGE–A–2 – INFRA) . . . with all
LEGAL MATERIAL ( “BOX-4” and “BOX-5” – or LEGAL STATUS of
this MATERIAL - ADMINISTRATIVE REMEDIES: #964369-Al and #
968975-Al) . . . .
NEXT, COURT ISSUE “DECLARATORY JUDGMENT” - Binding
adjudication of MARSHALL’S RIGHTS and STATUS of litigation of
FINAL EXHAUSTION of BOP’S ADMINISTRATIVE REMEDY
on . . . § 2241 and acknowledge the Present to EXERCISE JUDICIAL
POWER ON LAW AND EQUITY OF CIVIL SUIT(S) from about the
1980”S To The Present.
R. at 11 (brackets in original).
To the extent that Marshall seeks an order granting an “unescorted furlough
transfer” or a declaratory judgment adjudicating his right to enter the pilot program,
we agree with the district court that such relief is unobtainable by a § 2241 petition.
As discussed, the Attorney General has the final say on that matter.
To the degree that Marshall seeks an order requiring the BOP to make a
decision on his application to the pilot program, Marshall’s petition has more merit.
Nobody at the BOP ever told Marshall whether he qualifies for the program; thus,
13
this challenge seems directed at the procedures through which the BOP handled his
application.
Nonetheless, even if Marshall had raised some comprehensible challenge to the
BOP’s procedures, we would not reach the validity of that challenge because Marshall
did not exhaust his administrative remedies. 5 Before federal inmates can invoke § 2241
and seek relief in the federal courts, they must exhaust their available administrative
remedies. Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (“The exhaustion of
available administrative remedies is a prerequisite for § 2241 habeas relief, although
we recognize that the statute itself does not expressly contain such a requirement.”
(citation omitted)). Though we have created an exception from this judge-made rule in
situations in which exhaustion would be futile, that exception is narrow. Id.
Marshall chose to follow the BOP’s four-step grievance process. See 28 C.F.R.
§§ 542.10–.19. But he has not explained how that grievance process is the
appropriate mechanism for initiating an application to the pilot program. 6 Although
5
Even though the district court did not dismiss Marshall’s petition on failure-
to-exhaust grounds, we may affirm on alternative grounds that are adequately
incorporated in the record. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1256 (10th Cir.
2011) (citations omitted).
6
For a prisoner to exhaust administrative remedies through the grievance
process, the prisoner “must first seek informal redress for his grievance and then he
can proceed through the formal administrative appeal process, which includes, in
sequence, institutional, regional, and national (central) levels of review.” Acosta v.
Daniels, 589 F. App’x 870, 872 (10th Cir. 2014) (unpublished) (citing 28 C.F.R.
§§ 542.13–.19). Marshall proceeded to each formal level of review, but he has
presented no evidence that he informally sought to have his application considered by
BOP staff. If this process were applicable (which we do not decide), we believe, as
14
“[t]he purpose of the Administrative Remedy Program is to allow an inmate to seek
formal review of an issue relating to any aspect of his/her own confinement[,]” 28
C.F.R. § 542.10(a), inmates are not supposed to make an initial filing—called a
Request for Administrative Remedy—until “20 calendar days following the date on
which the basis for the Request occurred[,]” id. § 542.14(a). And inmates may not
file such a request before “informally” attempting to “resolve the issue.” Id.
§ 542.13(a).
This procedure is inapposite here because Marshall was not attempting to
resolve any grievance; he was sending out an application in the hope that the
Attorney General might, in his sole discretion, approve Marshall for the pilot
program. 7 So “the basis” for Marshall’s application could not be tied to some specific
incident from which he needed to make an initial filing within twenty days. Under
§ 60541(g)(1)(B), Marshall can apply to the pilot program whenever he believes he
qualifies as an eligible-elderly offender.
To be sure, official guidance on how Marshall should do that leaves much to
be desired—there are no federal regulations directly concerning the pilot program.
discussed next, that Marshall could have done so by submitting a standard inmate-
request form to BOP staff.
7
As of April 8, 2019, the Attorney General had approved only twenty-three
inmates for participation in the pilot program. Department of Justice Announces First
Step Act Implementation Progress, U.S. Dep’t of Just., http://www.justice.gov/opa/pr
/department-justice-announces-first-step-act-implementation-progress (last updated
April 8, 2019).
15
That said, on April 4, 2019, the BOP published Operations Memorandum 001-2019,
which states that “Offenders referred under th[e] pilot shall be processed for home
detention utilizing current RRC [Residential Reentry Center]/Home Confinement
procedures.” 8 Those procedures are contained in 28 C.F.R. §§ 570.20–.22. See id.
§ 570.20 (“The purpose of this subpart is to provide the procedures of the [BOP] for
designating inmates to pre-release community confinement or home detention.”). But
those regulations, which apply indirectly through the memorandum, do not help
either—they just give BOP staff discretion to refer inmates for pre-release or home
confinement within certain timeframes if they meet the relevant statutory criteria for
pre-release or home confinement. See id. §§ 570.21–.22. They do not provide
direction for how inmates should initiate such requests themselves.
Because § 60541(g)(1)(B) and BOP Operations Memorandum 001-2019 do not
address our issue, and in the absence of relevant regulations, we believe that the best
guidance for how inmates should apply to the pilot program can be found on the
BOP’s website. There, the BOP says that “[a]n inmate may apply for home
confinement under the Second Chance Act Home Confinement Pilot program . . . if
they meet the eligibility criteria as an elderly offender or as a terminally ill offender.
An inmate may initiate a request under either provision with their Unit Team.” First
Step Act—Frequently Asked Questions, Fed. Bureau of Prisons,
8
Fed. Bureau of Prisons, Home Confinement Under the First Step Act 4
(2019), https://www.bop.gov/policy/om/001-2019.pdf?fbclid
=IwAR3tdqyzFwTU3H153VKCHgT8iAe2DxRskHt85gOeSwEuVJ2blcpQL5iPdr0.
16
https://www.bop.gov/inmates/fsa/faq.jsp#fsa_sca (last visited Feb. 4, 2020).
Experience shows that, when inmates have submitted a standard inmate-request
form—BP-A0148—to BOP staff members, those staff members have responded with
letters explaining why the inmate is or is not eligible for the program. See, e.g.,
Motion to Reduce Sentence, United States v. Maher, No. 2:04-cr-00093-GZS-1 (D.
Me. Jan. 22, 2020), ECF Nos. 117-9, -12.
Here, Marshall has neither shown nor argued that an attempt to apply to the
pilot program outside of the BOP’s formal grievance process would have been futile.
Indeed, if Marshall had proceeded in this manner rather than directly “appealing” to
the warden, the warden may have had a better idea about what exactly Marshall was
seeking. In her denial letter, the warden never even mentions the elderly-offender
pilot program by name, presumably not understanding Marshall’s initiation of a
grievance process as an application to the pilot program.
Because Marshall is not seeking to remedy any specific grievance, it does not
appear that Marshall would somehow be time-barred under the Administrative
Remedy Program’s time limitations for filing a remedy request. 28 C.F.R.
§ 542.14(a) (providing inmates “20 calendar days” from “the date on which the basis
for the Request occurred” to both attempt to informally resolve and then formally file
an initial-remedy request). Thus, we see no reason why Marshall could not do
something he has not done yet—submit a standard inmate-request form to BOP staff
members asking them to consider whether he is eligible for the pilot program. And if
17
this option is still available to Marshall, we cannot conclude that he has exhausted his
administrative remedies.
CONCLUSION
We agree with the district court that Marshall’s § 2241 petition seeks, at least
in part, relief that is unobtainable through such a petition. And to the extent that
Marshall’s § 2241 petition can be construed to challenge the procedures through
which his application was handled, his habeas petition is premature because he has
yet to exhaust his administrative remedies. Accordingly, we affirm the district court’s
dismissal of Marshall’s § 2241 petition.
Entered for the Court
Gregory A. Phillips
Circuit Judge
18