United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
Charles Kenney is a federal inmate confined at the United
States Penitentiary -McCreary in Pine Knot, Kentucky.
Proceeding pro se, Kenney has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241
challenging the manner in which the Bureau of Prisons
(“BOP”) is executing his sentence. [R. 1.] In his
petition and related filings, Kenney argues that the BOP has
improperly calculated his release date because it is not
giving him credit for seventeen months that he spent in
custody from November 5, 1991, until March 23, 1993. [R. 1;
R. 1-1 at 3, 7.] Kenney requests to be released from custody
immediately. [R. 1.] Kenney has also filed motions to
expedite consideration of his petition. [R. 3; R. 8.]
sentence has a long, complicated history that dates back to
1991 and involves multiple sentences imposed in different
cases by United States District Courts in the Western
District of Pennsylvania (United States v. Kenney,
91-cr-138 (W.D. Pa. 1991)), the Middle District of
Pennsylvania (United States v. Kenney, 1:
92-cr-22-WWC-1 (M.D. Pa. 1992); United States v.
Kenney, 4:99-cr-280-MWB-1 (M.D. Pa. 1999)), and the
Eastern District of Virginia (United States v.
Kenney, 1:92-cr-142-TSE-1 (E.D. Va. 1992)).
[See R. 1; R. 1-1.]
April 12, 2017, Kenney was re-sentenced in one of these cases
in the United States District Court for the Middle District
of Pennsylvania after the Court granted Kenney's motion
for Writ of Audita Querela. United States v.
Kenney, 4:99-cr-280-MWB-1 (M.D. Pa. 1999) [Docket Entry
Nos. 187; 188; 196.] In that April 12, 2017, Amended
Judgment, the Honorable Matthew W. Brann sentenced Kenney to
be imprisoned for a total term of fifteen (15) months, to
“run consecutive to any sentence he is now
serving.” Id. [Judgment, Docket Entry No. 196
does not challenge the length of the sentence imposed by
Judge Brann in April 2017, nor does he take issue with Judge
Brann's order that this sentence is to run consecutive to
any sentence Kenney was serving on the date the sentence was
imposed. Rather, what Kenney appears to be challenging is the
BOP's calculation of the start date for the sentence
imposed by Judge Brann in April 2017. According to the copy
of the Sentence Monitoring and Computation Data sheet from
the BOP's Designation and Sentencing Computation Center
submitted by Kenney, the BOP calculates that Kenney's
projected release date for the sentence he is now serving as
a result of the sentences imposed in Kenney's other
criminal cases (and, accordingly, the sentence that Kenney
was serving when he was sentenced by Judge Brann in April
2017) is June 18, 2017. [R. 1-1 at p. 4.] Thus, as Judge
Brann ordered Kenney's sentence in 4:99-cr-280-MWB-1 to
run consecutive to “any sentence he is now serving,
” the BOP has computed the start date for Kenney's
fifteen-month sentence imposed in 4:99-cr-280-MWB-1 to be
June 18, 2017, with a projected statutory release date of
August 1, 2018.
to Kenney, the BOP's calculation of his projected release
date for the sentence he is now serving is in error, as it
fails to give him credit for seventeen months that he was
imprisoned from November 5, 1991 to March 23, 1993, while he
was in detention awaiting his sentence in the United States
District Court for the Eastern District of Virginia. [R. 1;
R. 7 at 4.] Kenney's argument appears to be that, if this
seventeen-month credit is applied to the sentence he is
currently serving, his release date for his current sentence
would have been seventeen months prior to June 18, 2017 (or
approximately January 18, 2016). Thus, the time that he has
served from January 18, 2016 until the present should be
applied to the 15-month sentence imposed by Judge Brann on
April 12, 2017. Under this theory, the sentence would have
been satisfied and Kenney should have been released on
approximately April 18, 2017, six days after the sentence was
Court conducts an initial review of habeas corpus petitions.
See 28 U.S.C. § 2243; Alexander v. Northern
Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir.
2011). A petition will be denied “if it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Rule 4 of the
Rules Governing § 2254 Cases in the United States
District Courts (applicable to § 2241 petitions pursuant
to Rule 1(b)). The Court evaluates Kenney's petition
under a more lenient standard because he is not represented
by an attorney. Erickson v. Pardus, 551 U.S. 89, 94
(2007). At this stage of the proceedings, the Court accepts
Kenney's factual allegations as true and construes all
legal claims in his favor. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007). However, after
reviewing the § 2241 petition, the Court must deny it as
Kenney candidly admits that he has failed to pursue, much
less exhaust, his administrative remedies.
a prisoner may seek habeas relief under section 2241, he must
exhaust his administrative remedies within the Bureau of
Prisons. See Fazzini v. Northeast Ohio Correctional
Center, 473 F.3d 229, 231 (6th Cir. 2006); Campbell
v. Barron, 87 F. App'x 577, 577 (6th Cir. 2004). The
purpose of the exhaustion requirement is to ensure that the
agency has an opportunity to review and revise its actions
before litigation is commenced, which preserves both judicial
resources and administrative autonomy. The requirement also
ensures that a court reviewing the agency's final action
does so upon a developed and complete evidentiary record.
Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th
Cir. 2003); Moscato v. Fed. Bureau of Prisons, 98
F.3d 757, 761-62 (3d Cir. 1996).
requirement that administrative remedies be exhausted prior
to filing suit mandates that those remedies must be exhausted
properly and within the time frames required by the remedy
process. Woodford v. Ngo, 548 U.S. 81, 92-94 (6th
Cir. 2006). The BOP has established a three-tiered
Administrative Remedy Program whereby an inmate may
progressively redress grievances at the institutional,
Regional, and Central Office (national) levels. See
generally 28 C.F.R. § 542.10, et
is an affirmative defense; thus a court may not deny a habeas
petition upon initial screening merely because the petitioner
“fail[s] to plead or attach exhibits with proof of
exhaustion” to his or her petition. Luedtke v.
Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). Here,
however, Kenney freely admits in his petition that he has
failed to pursue his administrative remedies through the BOP,
stating that “[t]he Administrative Remedy process would
be ‘futile' at this point, because I'm
currently two-months OVER my sentence. Futility exception in
existence.” [See R. 1 at 7.]
case law is clear and uniform that where such a defect is
apparent from the pleading itself, the petition may be
dismissed without prejudice upon initial review. Jones v.
Bock, 549 U.S. 199, 214-15 (2007) (explaining a district
court can dismiss a complaint sua sponte when it is
apparent from the face of the complaint that claim is barred
by affirmative defense); Carbe v. Lappin, 492 F.3d
325, 328 (5th Cir. 2007) (noting that, where a complaint made
clear that the prisoner failed to exhaust administrative
remedies, the district court may dismiss the complaint
sua sponte for failure to state a claim);
Fletcher v. Myers, No. 5:11-141-KKC, 2012 WL
1802618, (E.D. Ky. May 17, 2012), aff'd, No.
12-5630 (6th Cir. Jan. 4, 2013) (“Because
Fletcher's failure to exhaust, or to attempt to exhaust,
administrative remedies is apparent from the face of his
complaint, the district court properly dismissed
Fletcher's complaint on that basis.”); Smith v.
Lief, No. 10-08-JMH, 2010 WL 411134, at *4 (E.D. Ky.
Jan. 27, 2010); Gunn v. Ky. Dept. of Corrections,
No. 5:07CV-P103-R, 2008 WL 2002259, at *4 (W.D. Ky. May 7,
2008); Deruyscher v. Michigan Dept. of Corrections
Health, No. 06-15260-BC, 2007 WL 1452929, at *3 (E.D.
Mich. May 17, 2007).
petition, Kenney states that it would futile to exhaust his
administrative remedies because he should have already been
released. Kenney then states that the futility of exhausting
his administrative remedies is reflected in the copy of a
Sentence Monitoring and Computation Data sheet from the
BOP's Designation and Sentencing Computation Center that
he submits with his petition. [Id.]. It is true that
the judicially-crafted exhaustion requirement applicable to
habeas petitions asserted under section 2241 is subject to
certain equitable exceptions. However, the
“futility” exception upon which Kenney relies
applies only in certain, narrowly-defined, circumstances.
Specifically, a court may waive the exhaustion requirement as
futile where there has been “a prior indication from
the agency that it does not have jurisdiction over the matter
or it has evidenced a strong position on the issue together
with an unwillingness to reconsider.” Colton v.
Ashcroft, 299 F.Supp.2d 681, 689-90 (E.D. Ky. 2004)
(citing James v. United States Dept. of Health &
Human Servs., 824 F.2d 1132, 1139 (D.C. Cir. 1987)).
the only evidence in the record regarding the BOP's
position on Kenney's sentence calculation is the copy of
the Sentence Monitoring and Computation Data sheet from the
BOP's Designation and Sentencing Computation Center
submitted by Kenney. [R. 1-1.] Although this Data Sheet shows
the results of the BOP's sentencing calculations with
respect to Kenney's multiple sentences, it provides no
details or explanations that would provide the Court with any
insight as to the rationale underlying the BOP's
computations. There is simply nothing in the record that
supports an argument that the BOP has a “strong
position” on the issue of the calculation of
Kenney's sentence, see Colton, 299 F.Supp.2d at
690, or that the BOP is unwilling to reconsider its current
position. Thus, there is no evidence to support a finding
that Kenney's pursuit of his available administrative
remedies would be futile.
case underscores the importance of one of the core values
that the exhaustion requirement is designed to serve:
ensuring that the Court has an adequate record before it to
review the agency action in question. See Woodford,
548 U.S. at 89; Fazzini, 473 F.3d at 232. Without a
full administrative record explaining the BOP's actions
and the reasons therefor, ...