Bermudez v. Warden, FCI Allenwood-Low, 1:17-cv-00519

Petitioner Charles Bermudez, an inmate at FCI-Allenwood, filed a 28 U.S.C. § 2241 habeas petition and emergency motion for preliminary injunction challenging his expulsion from the BOP Residential Drug Abuse Program (RDAP) and alleging that the expulsion deprived him of eligibility for early release under 18 U.S.C. § 3621(e).
Bermudez conceded he had not exhausted BOP administrative remedies and argued exhaustion was futile because the same staff who expelled him would adjudicate his grievance.
The Court screened the petition under Rule 4 (applicable to § 2241 via Rule 1(b)) to determine plain lack of merit or need for summary dismissal.
The Court reviewed statutory framework: VCCLEA amendments to 18 U.S.C. § 3621 make RDAP available and permit—at BOP discretion—up to one year off a sentence for successful completion, but do not create an entitlement to early release.
The Court found Bermudez failed to make an affirmative showing of futility and therefore had not exhausted administrative remedies; the petition was dismissed on that ground.
The Court alternatively concluded Bermudez’s claim lacked merit because he was expelled before completing RDAP and § 3621 does not create a protected liberty interest in early release; thus substantive BOP RDAP decisions are generally not reviewable by the district court. The preliminary injunction was denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2241 petition may proceed despite lack of BOP administrative exhaustion	Bermudez: exhaustion futile because same staff who expelled him will decide his grievance	Respondent: administrative remedies required and not futile; exhaustion mandatory before § 2241 review	Court: Petition dismissed for failure to exhaust; Bermudez’s conclusory futility claim insufficient
Whether expulsion from RDAP violated right to early release under § 3621(e)	Bermudez: wrongful expulsion denied him statutory early-release benefit	Respondent: § 3621(e) grants BOP discretion; early release is not an entitlement and requires successful completion	Court: Claim without merit—expelled pre-completion so no entitlement; statute creates no protected liberty interest
Whether district court has jurisdiction to review BOP substantive RDAP decisions	Bermudez: seeks judicial review of RDAP expulsion	Respondent: BOP has authority to manage RDAP; such substantive decisions are nonreviewable	Court: No jurisdiction to review BOP’s substantive RDAP admission/removal decisions
Whether preliminary injunction should issue to restore Bermudez to RDAP	Bermudez: emergency relief needed pending habeas review	Respondent: injunction not warranted without likelihood of success and irreparable harm	Court: Preliminary injunction denied—Bermudez failed to show likelihood of success or irreparable harm

Moscato v. Fed. Bureau of Prisons, 98 F.3d 757 (3d Cir.) (administrative exhaustion required for § 2241 review; procedural default bars habeas review absent cause and prejudice)
Arias v. United States Parole Comm’n, 648 F.2d 196 (3d Cir.) (federal prisoner must exhaust administrative remedies before § 2241 petition)
Allen v. Perini, 424 F.2d 134 (6th Cir.) (district court duty to screen and dismiss facially meritless habeas petitions)
Reeb v. Thomas, 636 F.3d 1224 (9th Cir.) (BOP substantive decisions on RDAP admission/removal and sentence reduction are not subject to district court review)
Orr v. Hawk, 156 F.3d 651 (6th Cir.) (no protectable liberty interest in early release under § 3621(e))
O’Bar v. Pinion, 953 F.2d 74 (4th Cir.) (statute creating only hope of discretionary relief does not create a liberty interest)
Gambino v. Morris, 134 F.3d 156 (3d Cir.) (exceptions to exhaustion where administrative remedy unavailable, statutory construction only, or futility shown)
Bradshaw v. Carlson, 682 F.2d 1050 (3d Cir.) (purposes supporting administrative exhaustion include development of record, agency correction, and judicial resource conservation)
Cepero v. United States, 224 F.3d 256 (3d Cir.) (certificate of appealability not required for appeals from denials of § 2241 habeas petitions)