United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
Richard Ray Mullen, an inmate in the custody of the Federal
Bureau of Prisons (“BOP”) petitions this court
for habeas corpus relief pursuant to 28 U.S.C. § 2241
(ECF Nos. 1 and 3) and Respondents move to dismiss or for
summary judgment (ECF No. 6). Petitioner opposes the motion
(ECF No. 8) and Respondents replied in support of their
motion (ECF No. 9). The issues are fully briefed and there is
no need for a hearing to determine the matters pending.
See Local Rule 105.6 (D. Md. 2016). For the reasons
that follow, Respondents' motion, construed as a motion
for summary judgment, will be granted.
September 25, 2009, Mullen was sentenced to serve 210 months
in federal custody for violation of 21 U.S.C. § 848(a)
by the United States District Court for the Western District
of New York. See United States v. Mullen,
1:04-CR-00189-001 (W.D.N.Y.). In April of 2017, a Unit Team
at FCI Cumberland, Maryland, where Mullen is confined,
requested a release date of October 31, 2017. ECF No. 1 at p.
6. Mullen was later approved for a release date of November
8, 2017. Id.
October 4, 2017, Mullen was informed that his release date
was changed to June 28, 2018. ECF No. 1 at p. 6. Mullen
claims he was told the reason for the change was
“budget cuts.” Id. at p. 7. Mullen
states his case manager told him he did not know what was
really going on and in response to Mullen's request to be
transferred elsewhere, expressed that a transfer was not an
October 6, 2017, Mullen filed a “BP-08” appealing
the decision to change his release date and stating that he
wanted “his halfway house to be re-reviewed”
(sic) and for the release date to be changed back to November
8, 2017. Id. The Unit Team's response to the
BP-08 was that on “October 3, 2017, the Raleigh
Residential Reentry Management Office adjusted your placement
date to June 28, 2018.” Id.
October 13, 2017, Mullen filed a “BP-09 Request for
Administrative Remedy” with the Warden at FCI
Cumberland. Mullen claimed that the Unit Team and the Reentry
Management Office had improperly reduced the time he would be
in the Reentry program by eight months, giving him only four
months of placement in a halfway house. ECF No. 1 at p. 7. As
relief Mullen stated he wanted “to be given back the
one (1) year by finding [him] the alternative placement that
will ensure [he] received the maximum amount of one yr, in
compliance with both the law and policy.” Id.
At the time Mullen filed his petition with this court he had
not received a response from the Warden. Id.
adds, by way of background, that he was enrolled in the
Residential Drug Abuse Program (RDAP) in January of 2015 and
successfully completed the program ten months later. He adds
that for the past two years he has been a mentor in the RDAP
and has taught a job skill class as well as a “foot
prints” class and a class on relapse prevention. ECF
No. 1 at p. 7. Mullen states he has been incarcerated for
more than 13 years and has maintained a job, completed
vocational and educational programs, and never received any
violation or incident reports during that time. Id.
As relief, Mullen requests reinstatement of the November 8,
2017 release date; an Order requiring his designation to an
alternative placement in a Federal Halfway House; and release
to home confinement on April 30, 2018. ECF No. 1 at p. 8.
amended petition, filed on November 27, 2017, Mullen
addresses exhaustion of administrative remedies and avers that
although he began the process when the original petition was
filed, the Warden had not yet responded. ECF No. 3 at p. 4.
He claims that requiring him to exhaust administrative
remedies would be futile because the “BOP and/or
General Counsel would in fact be unlikely to find that [its]
employees ha[ve] acted in [a] manner contrary to its policy
when making the decision to reduce the approved
placement of 12 months by eight (8) months to four (4)
month[s] of halfway house without providing any cause for
said reduction.” Id. at p. 5. He further
claims that requiring full exhaustion would result in the
claim asserted in the petition becoming moot by the time of
his release date of June 28, 2018. Id. at p. 6.
Mullen requests that the court find “exceptional
circumstance” present in this case due to the urgency
involved and excuse his failure to exhaust administrative
facts provided by Respondents indicate that Mullen's
statutory release date is October 30, 2019. ECF No. 6-3 at p.
3 ¶4. Because Mullen successfully completed the RDAP on
October 26, 2015, he is eligible for discretionary early
release under 18 U.S.C. § 3621(e). Id. at p. 4,
¶5. The statutory provision allows for a BOP
inmate's sentence to be reduced after the successful
completion of a treatment program with the limitation that
the “reduction may not be more than one year from the
term the prisoner must otherwise serve.” 18 U.S.C.
§ 3621(e). Application of the provision to Mullen's
term of confinement renders a conditional release date of
October 30, 2018. ECF No. 6-3 at p. 4, ¶ 5.
inmate's projected release date draws near, BOP staff
make recommendations for RRC placement based on assessments
of the inmate's needs for services as well as public
safety concerns, and the BOP's need to manage inmate
population. Id. at ¶6, see also
Program Statement (“PS”) 7310.04 at
Unit Manager David Holler, who works at FCI Cumberland,
explains in his declaration under oath that:
Prior to the enactment of the Second Chance Act in 2007,
release preparation plans, including decisions regarding RRC
referrals, were ordinarily established eleven (11) to
thirteen (13) months prior to an inmate's projected
release date. At that time, such placement was limited to the
last ten percent (10%) of an inmate's sentence, not to
exceed six (6) months. When the Second Chance Act went into
effect in April 2008, however, it modified 18 U.S.C.
§3624(c), eliminating the ten percent (10%) limitation
language, and extending the maximum potential CCC/RRC
placement to twelve (12) months. Due to the increase in
maximum potential placement time, the time frame for
reviewing and making RRC placement referrals increased by six
(6) months as well. Thus, referrals and recommendations for
RRC placement are now ordinarily made when there are
seventeen (17) to nineteen (19) months remaining on an
ECF No. 6-3 at p. 4, ¶6.
factors, listed in 18 U.S.C. § 3621(b) are considered by
the Unit Team when an inmate is considered for RRC placement.
Id. at ¶ 7. Those factors are: (1) the
resources of the facility contemplated; (2) the nature and
circumstances of the offense; (3) the history and
characteristics of the prisoner; (4) any statement by the
court that imposed the sentence; and (5) any pertinent policy
statement by the Sentencing Commission pursuant to 28 U.S.C.
§ 994(a)(2). 18 U.S.C. § 3621(b).
inmate is referred for RRC placement, the unit team is
required to provide proof of a valid release plan that has
been approved by the United States Probation Office (USPO) in
the district where the post-release supervision is to occur.
ECF No. 6-3 at p. 5, ¶8. If an inmate wants to live in a
judicial district other than the one where he or she was
convicted and sentenced, a relocation request must be
submitted to the team by the inmate. Id. The
relocation request is then submitted to the USPO in the
district where the inmate wants to reside for processing and
approval. Id. The USPO makes a determination whether
the inmate would likely be successful in reintegrating into
society in the district requested through consideration of
factors such as the proposed release residence, ties to that
community, job prospects, and treatment resources.
was convicted and sentenced in the Western District of New
York; absent a request for a transfer to a different judicial
district, Mullen's post-release supervision must be in
that district. ECF No. 6-3 at p.6, ¶9; pp. 10 -12
(Attachment A). On January 20, 2017, Mullen requested a
post-release relocation to the Northern District of Georgia
with plans to reside with a cousin. ECF No. 6-3 at p.6,
¶9; p. 17 (Attachment C). The request was ...