Garza v. Davis

FILED
United States Court of Appeals
Tenth Circuit

February 17, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

AGAPITO GARZA,

Petitioner-Appellant,

v. No. 09-1448

BLAKE DAVIS, * Warden, Federal
Prison Camp—Florence,

Respondent-Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 09-cv-1292-ZLW)

Agapito Garza, pro se.

Paul Farley, Assistant United States Attorney (David M. Gaouette, United States
Attorney, with him on the brief), Office of the United States Attorney, District of
Colorado, Denver, Colorado, for Respondent-Appellee.

Before KELLY, BRISCOE, and HOLMES, Circuit Judges. **

*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Blake
Davis is substituted for Ron Wiley as the appellee in this action.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
HOLMES, Circuit Judge.

Agapito Garza, a federal prisoner currently incarcerated at the prison camp

in Florence, Colorado, filed a pro se petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2241. In his petition, Mr. Garza alleged, like other inmates before

him, that Bureau of Prison (“BOP”) officials at that facility are categorically

denying review and transfer of eligible inmates to lower-security facilities such as

community correction centers (“CCCs”) and residential re-entry centers (“RRCs”)

in violation of 18 U.S.C. §§ 3621(b) and 3624(c), and 28 C.F.R. §§ 570.20 and

570.21. Mr. Garza also alleged that officials are denying graduates of the BOP

Residential Drug and Alcohol Program (“RDAP”) a sentence reduction in

conjunction with an RRC placement, in violation of federal law and prison

regulations. After ordering the government to file a response limited to the issue

of whether it intended to raise the affirmative defense of failure to exhaust

administrative remedies, the district court dismissed Mr. Garza’s petition on

exhaustion grounds. On appeal, Mr. Garza argues that the district court erred by

(1) requiring him to exhaust BOP’s administrative remedies, and (2) ordering the

government to file a response to his petition. Exercising our jurisdiction under 28

U.S.C. § 1291, we AFFIRM. We also DENY Mr. Garza’s motion to proceed in

forma pauperis.

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I. Background

Mr. Garza filed his habeas petition on June 3, 2009, in the United States

District Court for the District of Colorado. In that petition, Mr. Garza alleged

that BOP officials at the Florence prison camp are categorically denying the

review and transfer of eligible inmates to CCCs and to RRCs for more than six

months, in violation of 18 U.S.C. §§ 3621(b) and 3624(c). Mr. Garza claimed

that he had been denied consideration for transfer to a CCC and he also wants to

spend the maximum amount of pre-release time in an RRC. 1 Finally, Mr. Garza

alleged that prison camp officials improperly are denying graduates of RDAP a

twelve-month sentence reduction in conjunction with a twelve-month RRC

placement. In his petition, Mr. Garza acknowledged that he had not exhausted

BOP’s administrative remedies, but alleged that exhaustion was not necessary

because it would be futile since BOP had predetermined the issues as

demonstrated by its categorical denial of transfers. Mr. Garza purported to file

the petition on behalf of himself and all others similarly situated; he also filed a

motion to certify the class and for appointment of class counsel.

The district court directed the government to file a response if it intended

to raise an affirmative defense regarding exhaustion of administrative remedies.

The government complied and filed such a response, arguing that the petition

1
Although Mr. Garza’s projected release date is February 17, 2013, he
apparently identifies himself as a pre-release inmate eligible for these types of
transfers.

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should be dismissed due to Mr. Garza’s failure to exhaust administrative

remedies.

The court concluded that the BOP administrative remedy procedure is

available to Mr. Garza under 28 C.F.R. §§ 542.10–19. The court determined that

Mr. Garza had not demonstrated that exhaustion would be futile because he had

made only conclusory allegations insufficient to excuse his failure to exhaust.

Moreover, the court noted that, even if prison camp officials were acting

improperly, BOP’s administrative review process includes two levels of review

beyond the institutional level (here, the prison camp level), which presumably

would be free from any biases that prison camp officials purportedly might

possess. Accordingly, the court dismissed Mr. Garza’s petition without prejudice

for failure to exhaust administrative remedies. This appeal followed.

II. Discussion

On appeal, Mr. Garza continues to allege that BOP and prison camp

officials have violated federal law by categorically denying inmate requests to

transfer to RRCs and CCCs. He also contends that the district court erroneously

dismissed his petition because exhaustion would be futile under Woodall v.

Federal Bureau of Prisons, 432 F.3d 235, 239 n.2 (3d Cir. 2005). 2 Finally, Mr.

2
Because Mr. Garza is proceeding pro se, we construe his filings
liberally. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
Although his opening brief does not explicitly make all of the futility arguments
that he raised before the district court, Mr. Garza raised the issue generally by
(continued...)

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Garza argues that the district court erred in ordering the government to file a

response to his petition.

A. Statutory Framework

To place Mr. Garza’s arguments in context, we will first examine the recent

changes to the statutory framework governing pre-release community confinement

and BOP’s implementation of those statutes. Two federal statutes, 18 U.S.C.

§§ 3621(b) and 3624(c), govern this issue. Section 3621(b) provides that BOP

has the authority to designate where an inmate will be imprisoned and to direct

his or her transfer to another facility, including RRCs and CCCs. 3 In making that

determination, BOP must consider:

(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

2
(...continued)
including in his opening brief a citation to a case involving futility, Woodall, 432
F.3d at 239 n.2. Because we construe his filings liberally we also will consider
the futility arguments Mr. Garza raised before the district court.
3
RRCs and CCCs are two words used to describe the same
animal—“residence in a community treatment center, halfway house, restitution
center, mental health facility, alcohol or drug rehabilitation center, or other
community correctional facility (including residential re-entry centers); and
participation in gainful employment, employment search efforts, community
service, vocational training, treatment, educational programs, or similar
facility-approved programs during non-residential hours.” 28 C.F.R. § 570.20(a).
BOP has chosen to refer only to RRCs “to provide ‘a clearer description of the
programs and services being offered’ in such facilities.” R. at 76 n.3 (Mem.,
dated Nov. 14, 2008).

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 (4) any statement by the court that imposed the sentence--

(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or

(B) recommending a type of penal or correctional
facility as appropriate; and

(5) any pertinent policy statement issued by the Sentencing
Commission pursuant to section 994(a)(2) of title 28.

18 U.S.C. § 3621(b).

Section 3624(c) in turn provides in relevant part that

[t]he Director of the Bureau of Prisons shall, to the extent
practicable, ensure that a prisoner serving a term of
imprisonment spends a portion of the final months of that term
(not to exceed 12 months), under conditions that will afford
that prisoner a reasonable opportunity to adjust to and prepare
for the reentry of that prisoner into the community. Such
conditions may include a community correctional facility.

18 U.S.C. § 3624(c)(1). Before 2008, § 3624(c) limited the time for which an

inmate could be eligible for such transfer to the final six months or ten percent of

his sentence, whichever was less. 18 U.S.C. § 3624(c) (2000). The Second

Chance Act of 2007, Pub. L. No. 110-199, § 251, 122 Stat. 657, 692 (2008)),

amended the statute to provide for the current eligibility time frame of twelve

months.

Prior to that amendment, BOP had utilized a categorical approach to

community confinement requests: it would only designate inmates to RRC

facilities during the last ten percent of the sentence being served so long as that

period did not exceed six months. See Community Confinement, 70 Fed. Reg.

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1659, 1659 (Jan. 10, 2005) (codified at 28 C.F.R. pt. 570 (2005)) (finalizing rules

regarding categorical exercise of discretion for designating inmates to community

confinement); see also Community Confinement, 69 Fed. Reg. 51,213, 51,213–14

(Aug. 18, 2004) (proposed categorical rules); Wedelstedt v. Wiley, 477 F.3d 1160,

1162–63 (10th Cir. 2007) (discussing regulations codifying categorical approach);

Woodall, 432 F.3d at 239–41 (same). In Wedelstedt, we invalidated BOP’s

categorical approach, holding that BOP’s “categorical refusal to consider the five

statutory factors [set forth by 18 U.S.C. § 3621(b)] is in direct conflict with the

clear congressional command that the factors be considered if a transfer is sought

or recommended.” 477 F.3d at 1167.

After the eligibility period for community confinement in 18 U.S.C.

§ 3624(c) was expanded to twelve months, BOP issued an interim rule, revising

its regulations to reflect that expansion. See Pre-Release Community

Confinement, 73 Fed. Reg. 62,440, 62,443 (Oct. 21, 2008) (codified at 28 C.F.R.

§ 570.21(a) (2009)) (interim rule revising BOP regulations to conform with the

Second Chance Act of 2007). BOP subsequently issued two memoranda

providing guidance to its staff regarding the proper implementation of the

amended statutes while BOP was undergoing formal rulemaking to revise more

permanently its regulations. The first memorandum, issued on April 14, 2008,

addressed the statutory changes following the Second Chance Act of 2007,

emphasizing that the pre-release time frame for RRC and CCC had been increased

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to twelve months and that there was no percentage limitation on time to be

served. Additionally, the memorandum instructed staff that they must make pre-

release placement decisions “on an individual basis in every inmate’s case” and

that “the Bureau’s categorical timeframe limitations on pre-release community

confinement . . . are no longer applicable, and must no longer be followed.” R. at

65; see also id. at 67 (“Bureau staff must approach every individual inmate’s

assessment with the understanding that he/she is now eligible for a maximum of

12 months pre-release RRC placement.”). Staff were instructed to review inmates

for pre-release placements at an earlier time, e.g., seventeen to nineteen months

before their projected release dates, and to consider pre-release inmates on an

individual basis using the five factors from 18 U.S.C. § 3621(b). However, the

memorandum also stated that “[w]hile the Act makes inmates eligible for a

maximum of 12 months pre-release RRC placements, Bureau experience reflects

inmates’ pre-release RRC needs can usually be accommodated by a placement of

six months or less” and that “[s]hould staff determine an inmate’s pre-release

RRC placement may require greater than six months, the Warden must obtain the

Regional Director’s written concurrence before submitting the placement to the

Community Corrections Manager.” Id. at 67.

The second BOP memorandum, issued on November 14, 2008, addressed

inmate requests for transfer to RRCs when more than twelve months remained

from their projected release date (that is, non-prerelease inmates). In relevant

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part, the memorandum instructed staff that they could not automatically deny a

non-pre-release inmate’s request for pre-release transfer, but must give each

request individualized consideration. Id. at 74–75 (“In other words, staff cannot

say that an inmate, whatever the circumstances, is automatically ineligible for

transfer to a RRC. Rather, staff must first review the inmate’s request on its

individual merits . . . .”). However, if an inmate were to request transfer prior to

the pre-release time frame of twelve months, although staff must individually

consider the request, they were instructed that there was “no need” to perform

immediately the statutorily prescribed individualized review. Id. at 75. Rather,

the inmate should be informed that the request would be fully reviewed in

conjunction with the next scheduled Program Review. Staff were cautioned that

they should not inform the inmate that he or she was ineligible for transfer

because “[t]elling an inmate that he/she is ineligible for RRC placement is the

same as automatically denying the inmate from even being considered for such

placement, and is not in accord with Bureau Policy.” Id. The second

memorandum also stated that “[a]n RRC placement beyond six months should

only occur when there are unusual or extraordinary circumstances justifying such

placement, and the Regional Director concurs.” Id. at 76.

In his petition, Mr. Garza alleges that BOP and prison camp staff have in

practice not changed their categorical approach to inmate transfer requests,

despite the changes to the statutory and regulatory scheme. Instead, he alleges,

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they continue to deny categorically all prison camp inmate requests for pre-

release transfers without individual consideration. Having established the

relevant statutory framework, we now turn to Mr. Garza’s first argument on

appeal: that he was not required to exhaust BOP’s administrative remedies before

filing his habeas petition because such exhaustion would be futile.

B. Exhaustion of Administrative Remedies

“We review the district court’s dismissal of a § 2241 habeas petition de

novo.” Broomes v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir. 2004). 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. See Williams v. O’Brien, 792 F.2d 986, 987 (10th

Cir. 1986) (per curiam) (noting that “judicial intervention is usually deferred until

administrative remedies have been exhausted”). A narrow exception to the

exhaustion requirement applies if a petitioner can demonstrate that exhaustion is

futile. See Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 235–36 (6th Cir. 2006)

(recognizing futility exception in context of § 2241 petition); cf. Fairchild v.

Workman, 579 F.3d 1134, 1155 (10th Cir. 2009) (discussing futility as to 28

U.S.C. § 2254 petitions).

As the district court explained, BOP regulations require a prisoner to

attempt informal resolution of a complaint and, if that fails, to submit a formal

request for an administrative remedy to the institution. See 28 C.F.R.

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§§ 542.13–14. If the inmate does not obtain a satisfactory resolution from the

institution itself, he then may file a regional appeal followed by a national appeal.

Id. § 542.15(a). Mr. Garza concedes that he did not exhaust the administrative

remedies provided by BOP. Accordingly, unless he can demonstrate that

attempting to do so would be futile, Mr. Garza cannot proceed with his § 2241

petition.

Mr. Garza raises several arguments to support his contention that

exhaustion is futile. These same arguments have been previously raised in other

appeals by inmates from the Florence prison camp and have been rejected by

various panels of this court. See Ciocchetti v. Wiley, No. 09-1336, 2009 WL

4918253 (10th Cir. Dec. 22, 2009); Torres-Villa v. Davis, No. 09-1366, 2009 WL

4071834 (10th Cir. Nov. 25, 2009); Bun v. Wiley, No. 09-1289, 2009 WL

3437831 (10th Cir. Oct. 27, 2009); see also Lucero v. Wiley, No. 09-1344, 2009

WL 4269700 (10th Cir. Dec. 1, 2009) (dismissing appeal from Florence inmate

raising similar arguments for failure to exhaust on slightly different grounds);

Padilla v. Wiley, No. 09-1362, 2009 WL 4269699 (10th Cir. Dec. 1, 2009)

(same). Although those panels issued non-binding unpublished decisions, upon

our careful study of their analyses, we conclude that those panels were correct in

rejecting futility arguments akin to those raised by Mr. Garza here. We need not

opine on the validity of Mr. Garza’s claims of wrongdoing by prison camp

officials on their merits. It is sufficient for us to conclude, as we do, that Mr.

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Garza cannot establish that he qualifies for the narrow futility exception to the

exhaustion requirement.

First, like the previous petitioners from Florence prison camp, Mr. Garza

argues that the BOP memoranda issued on April 14, 2008 and November 14, 2008

demonstrate that administrative review would be futile. See Ciocchetti, 2009 WL

4918253, at *2–3; Torres-Villa, 2009 WL 4071834, at *1; Bun, 2009 WL

3437831, at *2. We agree with the previous panels and with the district court; the

BOP memoranda support the opposite conclusion. See Ciocchetti, 2009 WL

4918253, at *3; Torres-Villa, 2009 WL 4071834, at *1; Bun, 2009 WL 3437831,

at *2. They indicate that “BOP recognizes its authority to place inmates in RRCs

and/or CCCs for periods of time exceeding six months” and do not reflect any

policy of categorical denial. Ciocchetti, 2009 WL 4918253, at *3.

Mr. Garza also argues that our decision in Wedelstedt, in which we

invalidated previous BOP regulations, supports his futility argument. However,

previous panels of our court have twice rejected this same contention. See

Torres-Villa, 2009 WL 4071834, at *2; Bun, 2009 WL 3437831, at *1. And we

agree with those panels. In particular, we observe that BOP has adopted new

interim regulations to replace those that were invalidated in Wedelstedt. Those

regulations perforce must be the focus of Mr. Garza’s challenge. Therefore,

under the circumstances of this case, Wedelstedt’s holding is not germane.

Moreover, to the extent that Mr. Garza argues that exhaustion is futile because

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officials at the Florence prison camp are categorically denying prisoner transfer

requests, the higher administrative review levels available (regional and national

appeals) demonstrate that exhaustion is not futile.

Mr. Garza further argues that exhaustion is not required because he seeks to

challenge the validity rather than the application of BOP regulations. “But a

prisoner can[not] do away with the exhaustion requirement simply by framing his

habeas petition as an attack on a regulation’s validity rather than its application.

The relevant question remains whether it would be futile to require the prisoner to

go through the BOP review process.” Torres-Villa, 2009 WL 4071834, at *2.

And we conclude that it would not be. The regulations challenged by Mr. Garza

do not “definitively prevent the BOP from transferring him to a CCC while he is a

non-prerelease inmate or from placing him in a RRC for the twelve months

preceding his release. Indeed, the memoranda he calls to our attention make clear

that each is a possible outcome of the BOP review process.” Id. Consequently,

Mr. Garza must go through that administrative remedy process as a prerequisite to

filing a habeas petition.

C. Order to File a Response

Mr. Garza’s second argument on appeal concerns the district court’s order

to the government. Mr. Garza contends that the district court improperly ordered

the government to file a response to his habeas petition if it wished to raise the

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affirmative defense of exhaustion. He seems to believe this “failure to follow

proper procedure” renders the judgment “voidable.” Aplt. Br. at 3. We disagree.

“District courts generally are afforded great discretion regarding trial

procedure applications (including control of the docket and parties), and their

decisions are reviewed only for abuse of discretion.” United States v. Nicholson,

983 F.2d 983, 988 (10th Cir. 1993) (citations and internal quotation marks

omitted). Accordingly, the district court possessed the discretion either to dismiss

the § 2241 petition if it appeared that the petitioner was not entitled to relief or to

order the respondent to file a response. We perceive support for our conclusion

in the rules governing the judicial management of litigation in the analogous

context of § 2254 petitions. Rule 4 of the Rules Governing Section 2254 Cases in

the United States District Courts states that a district court judge must either

dismiss a petition if it “plainly appears” from the petition and any exhibits that

the petitioner is not entitled to relief or the district judge must order the

respondent to file an answer, motion or other response. Fed. R. Governing

Section 2254 Cases in the U.S. Dist. Cts. 4; see also Ciocchetti, 2009 WL

4918253, at *4. In seeking a response from the government, the district court in

this case did no more than afford the government an opportunity to address Mr.

Garza’s arguments and limited the response to the issue of exhaustion in the

interest of judicial efficiency. In doing so, the district court was well within the

proper exercise of its discretion.

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II. Conclusion

Mr. Garza has not exhausted his administrative remedies, nor has he shown

that exhaustion would be futile. Furthermore, Mr. Garza has not demonstrated

that the district court abused its discretion in ordering the government to file a

response to his petition. Accordingly, we AFFIRM the district court’s dismissal

of Mr. Garza’s habeas petition. Furthermore, we DENY Mr. Garza’s motion for

leave to proceed in forma pauperis.

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