United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
Randall Dale Bingham has filed a pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
[R. 1.] At the time his petition was filed, he was housed at
the United States Penitentiary (“USP”)-Manchester
in Manchester, Kentucky. This matter is before the Court to
conduct the initial screening required by 28 U.S.C. §
2243. Alexander v. Northern Bureau of Prisons, 419
Fed.Appx. 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)).
August 24, 2017, in the United States District Court for the
Northern District of Georgia, Mr. Bingham was found guilty of
violating the terms of his previously-imposed supervised
release and sentenced to a term of imprisonment of twelve
(12) months and one (1) day with such time in federal custody
to commence as of July 5, 2017. United States v.
Bingham, 4:05-cr-047-HLM-1 (N.D.Ga. 2005) at R. 23. The
court also recommended that Mr. Bingham be permitted to move
into a halfway house as soon as practical for the remainder
of his sentence. Id.
§ 2241 petition filed in this Court, Mr. Bingham raises
two claims, one related to Good Time Credit
(“GTC”) to which he believes himself entitled,
and the second claim seeking relief from the restitution
amount ordered in his original underlying criminal case,
United States v. Bingham, 1:97-cr-423-2 (N.D. Ill.
1997). He also seeks immediate placement in a halfway house.
before a prisoner may seek habeas relief under Section 2241,
he must exhaust his administrative remedies within the Bureau
of Prisons (“BOP”), which Mr. Bingham candidly
admits that did not do. Fazzini v. Northeast Ohio
Correctional Center, 473 F.3d 229, 231 (6th Cir. 2006);
Campbell v. Barron, 87 Fed.Appx. 577, 577 (6th Cir.
2004). 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 seq.
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, Mr. Bingham freely admits in his petition that he
has failed to pursue his administrative remedies through the
BOP, explaining his frustrations with pursuing administrative
remedies with respect to other, unrelated claims in the past.
[R. 1 at p. 2-3] Bingham also argues that exhaustion of his
GTC claim would take too long [Id. at p. 4-5] and
exhaustion with respect to his restitution claim is futile
because “BOP policy of (IFRP) Inmate Financial
Responsibility Program does not allow relief of
restitution.” Id. at 6.
case law is clear and uniform that where such a defect is
apparent from the pleading itself, it may be dismissed
without prejudice upon initial review. Jones v.
Bock, 549 U.S. 199, 214-15 (2007) (district court can
dismiss 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) (where complaint made clear that prisoner
failed to exhaust administrative remedies, district court may
dismiss it sua sponte for failure to state a claim);
Fletcher v. Myers, No. 5:11-141-KKC (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.”).
addition, the Court notes that a review of the BOP's
“Inmate Locater” website shows that Mr. Bingham
absconded from the custody of the BOP on May 23, 2018.
See https://www.bop.gov/inmateloc/ (last visited
June 11, 2018). The Court takes judicial notice of records
and information located on government websites because they
are self-authenticating under Fed.R.Evid. 902. Qiu Yun
Chen v. Holder, 715 F.3d 207, 212 (7th Cir. 2013)
(“A document posted on a government website is
presumptively authentic if government sponsorship can be
verified by visiting the website itself.”). The fact
that Mr. Bingham has absconded from BOP custody raises
serious questions over whether or not he is considered to be
“in custody” for purposes of this Court's
jurisdiction over Mr. Bingham's habeas claims. See
Prieto v. Gluch, 913 F.2d 1159, 1162 (6th Cir.1990)(in
order for a court to have jurisdiction over petitioner's
habeas claims under § 2241, the petitioner must be in
because Mr. Bingham admits that he filed his petition before
pursuing his administrative remedies with the BOP, the Court
will deny the petition as prematurely filed. This denial is
without prejudice to Mr. Bingham's right to file a new
petition, and necessarily does not reach the merits of his
it is hereby ORDERED as follows:
Petitioner Randall Dale Bingham's petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2241
[R. 1] is DENIED WITHOUT
PREJUDICE as premature;
action is DISMISSED and
STRICKEN from the Court's docket;
Judgment shall be entered contemporaneously with this