United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief United States District Judge
Lucious Kalil Woods, a federal inmate proceeding pro
se, filed a petition for writ of habeas corpus pursuant
28 U.S.C. § 2241, challenging the Federal Bureau of
Prisons' (“BOP”) authority to set a payment
schedule for collection of his restitution. Respondent moved
for summary judgment and this matter is ripe for disposition.
For the reasons stated herein, the court will grant
7, 2010, the United States District Court for the Northern
District of Ohio convicted Woods of armed bank robbery and
using a firearm during and in relation to a crime of
violence, and sentenced him to 180 months of incarceration.
ECF No. 1-1. The court ordered Woods to pay a $200.00 special
assessment fee, “due in full immediately, ” as
well as $5, 524.95 in restitution, with “[p]ayment to
begin immediately” and “due during
imprisonment.” ECF No. 1-1, 6. Woods finished paying
the $200.00 special assessment fee in full on December 27,
2014. ECF No. 11-3. As of May 9, 2018, Woods had paid $244.95
in restitution, with a balance of $5, 280.00. ECF No. 11-4.
Woods paid both of these amounts through the Inmate Financial
Responsibility Program (“IFRP”) before he
withdrew from the IFRP in early 2018. ECF No. 11-5.
asserts that by ordering him to pay restitution immediately,
without specifying any payment schedule, the district court
impermissibly delegated its “statutory duty” to
set a payment schedule to the BOP, which “forced”
him to participate in the IFRP. As relief, Woods requests a
deferral or reduction of restitution. Woods concedes that he
did not exhaust administrative remedies prior to filing this
action, but argues that doing so would have been futile.
2241 authorizes the federal court to issue a writ of habeas
corpus to federal prisoners who are “in custody in
violation of the Constitution of laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). A §
2241 habeas petition “challenges the execution of a
federal prisoner's sentence, including such matters as
the administration of parole, computation of a prisoner's
sentence by prison officials, prison disciplinary actions,
prison transfers, type of detention, and prison
conditions.” Gonzalez-Martinez v. Drew, No.
8:11cv437, 2011 U.S. Dist. LEXIS 151351, at *8 n.1, 2011 WL
6982247, at *4 n.1 (D.S.C. Dec. 16, 2011) (quoting
Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001));
see also In re Vial, 115 F.3d 1192, 1194 n.5 (4th
Cir. 1997) (“Attacks on the execution of a sentence are
properly raised in a § 2241 petition.”).
“[A]n inmate's challenge to the BOP's
administration of the IFRP is a challenge to the
‘execution' of a sentence that is cognizable under
28 U.S.C. § 2241.” Fontanez v.
O'Brien, 807 F.3d 84, 85 (4th Cir. 2015).
§ 2241 does not contain a statutory exhaustion
requirement, courts consistently require prisoners to exhaust
administrative remedies prior to seeking habeas review under
§ 2241. See McClung v. Shearin, 90 Fed.Appx.
444, 445 (4th Cir. 2004) (citing Carmona v. Bureau of
Prisons, 243 F.3d 629, 634 (2nd Cir. 2001)); see
also United States v. Mercado, 37 Fed.Appx. 698, 699
(4th Cir. 2002) (upholding dismissal for failure to exhaust
BOP's administrative remedies prior to filing §
2241); United States v. Odiana, 7 F.3d 227 (4th Cir.
1993) (holding that administrative exhaustion is required
prior to filing § 2241). Exhaustion allows prison
officials to develop a factual record and an opportunity to
correct their own errors before being haled into court.
See Jones v. Bock, 549 U.S. 199, 204 (2007);
McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992). In
a § 2241 action, exhaustion of administrative remedies
is jurisdictional. See, e.g., United States v.
Wilson, 503 U.S. 329, 335 (1992); Timms v.
Johns, 627 F.3d 525, 533 (4th Cir. 2010).
concedes that he did not exhaust administrative remedies, but
argues that exhaustion would have been futile because of the
BOP's IFRP policy. The United States Court of Appeals for
the Fourth Circuit has stated that an inmate's failure to
exhaust his or her administrative remedies before filing a
§ 2241 petition “may only be excused upon a
showing of cause and prejudice.” McClung, 90
Fed.Appx. at 445. Courts in this circuit have excused a
§ 2241 petitioner's failure to exhaust his
administrative remedies on the basis of futility. See,
e.g., See Larue v. Adams, Case No. 1:04-0396,
2004 U.S. Dist. LEXIS 31291, at *24-28, 2006 WL 1674487, at
*8 (S.D. W.Va. 2004) (recognizing that several circuit and
district courts have found that the exhaustion requirements
may be waived under § 2241 and noting that although the
Fourth Circuit has not directly addressed this issue, it has
shown a willingness to adopt a futility exception to the
general exhaustion requirement in habeas corpus actions).
Other courts in the circuit have excused exhaustion when
“the actions of the agency clearly and unambiguously
violate statutory or constitutional rights, or the
administrative procedure is clearly shown to be inadequate to
prevent irreparable harm.” Wright v. Warden,
FCI-Cumberland, No. CIV.A. RDB-10-671, 2010 U.S. Dist.
LEXIS 28575, at *3, 2010 WL 1258181, at *1 (D. Md. Mar. 24,
2010) (citing Lyons v. U.S. Marshals, 840 F.2d 202,
205 (3rd Cir.1988)). However, exhaustion should only be
excused “in rare cases where exceptional circumstances
of peculiar urgency are shown to exist.” Id.
(quoting Rose v. Lundy, 455 U.S. 509, 515-16
(1982)). Conclusory statements that exhaustion would be
futile which are not substantiated with some evidence are not
enough to evade the exhaustion requirement. Reeder v.
Phillips, No. 1:07cv138, 2008 U.S. Dist. LEXIS 46265, at
*8-9, 2008 WL 2434003, at *3 (N.D. W.Va. June 12, 2008)
(requiring more than a bald assertion of futility); see,
e.g., Torres v. Warden FCI-Three Rivers, No. 2:17cv178,
2018 U.S. Dist. LEXIS 100013, at *5, 2018 WL 2976070, at *2
(S.D. Tex. Apr. 17, 2018) (assertion that BOP would not
consider placement for longer than six months without
evidence was conclusory); Wright v. Warden,
FCI-Cumberland, No. CIV.A. RDB-10-671, 2010 U.S. Dist.
LEXIS 28575, at *4-5, 2010 WL 1258181, at *1 (D. Md. Mar. 24,
2010) (exhaustion can be granted on the basis of futility if
the BOP is certain to rule adversely, but an unsupported
prediction of failure does not excuse lack of exhaustion)
(citing Thetford Prop. IV Ltd. P'ship v. U.S.
Dep't of Hous. & Urban Dev., 907 F.2d 445, 450
(4th Cir. 1990) (“Allowing a petitioner to avoid the
administrative process based on a mere conclusory assertion
‘would allow the futility exception to swallow the
conclusory assertion that the existence of the BOP's IFRP
policy makes exhaustion futile fails to allege sufficiently
specific reasons for futility. See Reeder, 2008 U.S.
Dist. LEXIS 46265, at *8-9, 2008 WL 2434003, at *3. Woods
also does not attempt to demonstrate cause and prejudice for
excusing his failure to exhaust administrative remedies.
See Perkins v. Wilson, No. 2:13cv114, 2014 U.S.
Dist. LEXIS 23869, at *17-18, 2014 WL 792039, at *6 (E.D. Va.
Feb. 24, 2014) (“[The petitioner] has proffered no
evidence in support of his futility claim beyond his
conclusory statement. Finally, he has not demonstrated, or
attempted to demonstrate, any cause or prejudice to excuse
his failure to abide by the Administrative Remedy
Program.”). Further, although Woods argues the futility
of exhaustion because he is challenging a BOP policy-the
IFRP-in actuality, Woods' claim is not directed toward
the IFRP. Instead, Woods claims that the sentencing court
impermissibly delegated its authority to the BOP. He argues
that in effect, this impermissible delegation forces him to
participate in the IFRP in order to pay his restitution in
compliance with the judgment. This claim does not take issue
with the IFRP policy, nor does it establish that in
administrative review, the BOP would be forced to deny review
of his claim pursuant to the IFRP. Finally, even if
Woods' claim could be read to challenge the IFRP, the
existence of a BOP policy does not de facto make a
challenge to the consequence of that policy futile. See,
e.g., Crawley v. Butler, Case No. 1:13cv21715,
2014 U.S. Dist. LEXIS 185494, at *10-11, 2014 WL 11299007, at
*4 (S.D. W.Va. June 11, 2014) (rejecting the petitioner's
argument that exhaustion of administrative remedies would
have been futile “because the BOP has predetermined
issue in regards to the IFRP”).
on the foregoing, the court concludes that Woods has not
demonstrated grounds to waive the requirement that he exhaust
administrative remedies. Accordingly, the court finds that
Woods' § 2241 petition is unexhausted and, thus,
grants respondent's motion for summary judgment.
Woods had exhausted administrative remedies or if the
exhaustion requirement should have been waived, however,
Woods' claim would nevertheless fail. The Fourth Circuit
has recognized that 18 U.S.C. § 3663 imposes a
nondelegable, “core judicial function” upon the
sentencing court to set the amount and time of monetary
penalty payments. United States v. Johnson, 48 F.3d
806, 808 (4th Cir. 1995). However, “a prisoner's
participation in the BOP's IFRP program is [not] an
abdication of the court's ‘core judicial function,
'” where “the sentencing court has already
determined the amount and timing of the [restitution].”
Summersett v. Baucknecht, 496 F.Supp.2d 636, 639-40
(D.S.C. 2007); Coleman v. Brooks, 133 Fed.Appx. 51');">133 Fed.Appx. 51,
53 (4th Cir. 2005); United States v. Caudle, 261