United States District Court, E.D. Michigan, Southern Division
ORDER OPINION AND ORDER DENYING PETITION FOR WRIT OF
D. Borman United States District Judge
inmate Rafael Linares (“Petitioner”) filed a pro
se habeas corpus petition under 28 U.S.C. § 2241. The
petition asserts that the Bureau of Prisons
prevented him from completing participation in the
Residential Drug Abuse Treatment Program
(“RDAP”). Respondent argues that Linares is not
entitled to relief because he failed to exhaust
administrative remedies and because his claim is without
merit. The petition will be denied because Linares has no
constitutional right to participation in the RDAP, and the
record shows that he voluntarily withdrew from the program on
was convicted in the United States District Court for the
Southern District of Texas of conspiracy to possess with
intent to distribute 1, 000 kilograms or more of marijuana.
21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). He was
sentenced on January 23, 2014, to 70 months' imprisonment
and 3 years' supervised release.
initially determined that Petitioner was ineligible for
participation in the RDAP because he tested below the
required literacy level and because under regulations in
effect at the time Petitioner's prior Illinois conviction
for aggravated kidnaping disqualified him from early release.
See 28 C.F.R. § 550.55(b)(4)(vi) (2009).
January 28, 2015, Petitioner sought entry into the RDAP, but
the Warden at FCI Milan denied the request due to
Petitioner's low reading score and his failure to
demonstrate that he had a substance abuse problem. Petitioner
successfully appealed this determination in the North Central
Regional Office after it was determined that Petitioner
earned his GED, and he was subsequently placed on the waiting
list for the RDAP.
was transferred to FCI Pekin in Illinois, where he began
participation in the RDAP. On August 7, 2015, Petitioner was
warned that his poor conduct in the program could lead to his
expulsion. On August 11, 2015, Petitioner was charged with
aiding in the possession of a cell phone. BOP records show
that Petitioner asked to withdraw from the RDAP so he could
resolve the misconduct before being involuntarily expelled
from the program. Dkt. 5-10.
transferred back to FCI Milan, and he again began
participation in the RDAP on February 1, 2016. According to
BOP records, Petitioner demonstrated inappropriate behavior
during the RDAP meetings. As a result, on March 24, 2016,
Petitioner withdrew from the program after complaining about
how it was being run. Dkt. 1, Exhibit G-1.
then filed the instant habeas petition on February 27, 2017,
asserting that the actions of the BOP were preventing him
from completing the RDAP program.
March 27, 2017, Petitioner was again admitted into the RDAP
at FCI Milan. BOP records indicate that on April 25, 2017,
Petitioner again voluntarily withdrew from the program. Dkt.
initial matter, Respondent asserts that the petition should
be dismissed because Petitioner failed to exhaust his
administrative remedies in the BOP. It is well established
that “[f]ederal prisoners must exhaust their
administrative remedies prior to filing a habeas petition
under § 2241.” Fazzini v. Northeast Ohio
Correctional Ctr., 473 F.3d 229, 231-32 (6th Cir. 2006).
It appears that Petitioner failed to exhaust his
administrative remedies through the BOP, if indeed he had any
remedies after voluntarily withdrawing from the RDAP.
Although exhaustion is a prerequisite to relief, it is not
jurisdictional, and a court may deny an unexhausted §
2241 petition on the merits rather than requiring further
exhaustion. See Ayers v. Walton, No. 2:10-CV-13991,
2011 WL 1792770, at * 2 (E.D. Mich. April 25, 2011) (quoting
Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990)).
Because the record shows that Petitioner is not entitled to
habeas relief, the Court will proceed to the merits.
2241 “is an affirmative grant of power to federal
courts to issue writs of habeas corpus to prisoners being
held ‘in violation of the Constitution or laws or
treaties of the United States.'” Rice v.
White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting 28
U.S.C. § 2241(c)). In order to prevail on a due process
claim, a petitioner must show that the government has
interfered with a protected liberty or property interest.
Petitioner must show either: (1) that he had a
constitutionally protected interest to participate in the
RDAP or in his early release, or (2) that the denial thereof
creates an atypical ...