Michael Richmond v. JOSEPH SCIBANA , Warden, Federal Correctional Institution at Oxford, Wisconsin

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2264
M ICHAEL R ICHMOND ,
Petitioner-Appellant,
v.
J OSEPH S CIBANA , Warden, Federal Correctional
Institution at Oxford, Wisconsin,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-C-131-S—John C. Shabaz, Judge.
____________
A RGUED S EPTEMBER 28, 2004—D ECIDED O CTOBER 19, 2004
____________
Before B AUER , E ASTERBROOK , and M ANION , Circuit
Judges.
EASTERBROOK, Circuit Judge. “The Bureau of Prisons
shall, to the extent practicable, assure that a prisoner serv-
ing a term of imprisonment spends a reasonable part, not
to exceed six months, of the last 10 per centum of the term
to be served under conditions that will afford the prisoner
a reasonable opportunity to adjust to and prepare for the
prisoner’s re-entry into the community. The authority pro-
vided by this subsection may be used to place a prisoner in
home confinement.” 18 U.S.C. §3624(c). In December 2002

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2 No. 04-2264
the Department of Justice concluded (relying on an opinion
issued by the Office of Legal Counsel) that the “not to
exceed” proviso in §3624(c) limits the Bureau’s discretion
under 18 U.S.C. §3621(b) to designate an inmate’s place of
confinement, and that as a result prisoners are ineligible for
community or home confinement before the last six months
or 10% of their sentences, whichever is shorter. Because the
Bureau is a unit within the Department of Justice, the
OLC’s opinion governs the Bureau’s conduct.
Inmates throughout the nation have challenged the new
interpretation, which one circuit recently found to be er-
roneous. See Goldings v. Winn, 2004 U.S. App. LEXIS 19012
(1st Cir. Sept. 9, 2004) (holding that §3621(b) entitles the
Bureau of Prisons to place inmates in community confinement
for any or all of their sentences, §3624(c) notwithstanding).
Michael Richmond filed a petition for habeas corpus, see 28
U.S.C. §2241, claiming entitlement to consideration for
less-restrictive confinement. The district court dismissed his
petition because Richmond had never asked the Warden or
anyone else at the Bureau of Prisons to place him in com-
munity confinement before the last 10% of his sentence and
thus had not exhausted the administrative remedies
available under 28 C.F.R. §§ 542.13 to 542.15.
Richmond is approaching the statutory milestones—he
enters the final six months of his sentence on December 14,
2004, and the last 10% on February 3, 2005—so judicial
relief must come quickly if he is to enjoy an opportunity for
earlier consideration. Looming dates excuse exhaustion,
Richmond says; anyway, he asks, what good would a
post-2002 request have done given the OLC’s legal opinion?
As the Bureau sees matters, however, this is a challenge to
prison conditions covered by the exhaustion requirement in
the Prison Litigation Reform Act, 42 U.S.C. §1997e(a). Perez
v. Wisconsin Department of Corrections, 182 F.3d 532, 536-37
(7th Cir. 1999), holds that courts will not try to sift futile
from effective remedies for this purpose; instead of asking

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No. 04-2264 3
judges to guess, prisoners must give it a go. Booth v.
Churner, 532 U.S. 731 (2001), adds that exhaustion is
required even if the administrative process cannot supply
the relief the prisoner seeks. To get anywhere, Richmond
must persuade us that §1997e(a) does not apply. His theme
on appeal is that this is a genuine §2241 proceeding un-
affected by the PLRA . See Walker v. O’Brien, 216 F.3d 626,
633-37 (7th Cir. 2000).
Now it is doubtful that the choice between “challenge to
prison conditions” and “§2241 proceeding” makes much dif-
ference to Richmond. A common-law exhaustion rule applies
to §2241 actions even though §1997e(a) does not, and although
the common law allows of exceptions the hurdle is high.
Compare Gonzalez v. O’Connell, 355 F.3d 1010, 1016 (7th
Cir. 2004), with United States v. Roque-Espinoza, 338 F.3d
724, 729 (7th Cir. 2003) (“futility excuses will not go far”). The
press of time is Richmond’s fault. Although the Bureau of
Prisons notified inmates promptly of the OLC’s decision,
Richmond did nothing for the next 16 months until March
5, 2004, when he filed suit. A prisoner cannot manufacture
exigency by tarrying.
Application to the Bureau need not have been a pointless
exercise. Richmond might have asked it to exempt current
inmates, a possibility that the OLC did not consider. (In
this litigation Richmond contends that the Ex Post Facto
Clause precludes application of the OLC’s opinion to per-
sons whose crimes occurred before December 2002. As a
constitutional argument this is not promising; the statutes
predate his offense. But as a request for a grandfather clause
in the new approach, Richmond’s position may fare better
and should have been presented to the Bureau.) Another
outcome could have been a decision that Richmond is un-
suitable for that placement independent of the OLC’s statutory
interpretation. Such a decision would have avoided any
need for this litigation. By withholding a request for admin-
istrative action, Richmond may well have trumped up a

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4 No. 04-2264
legal issue. We cannot be sure, so it is not possible to
declare that he seeks an advisory opinion; still, reducing
uncertainty is an important benefit of an administrative
request.
What is more, it is hard to see why we should strain to
find an opportunity to address the correctness of the OLC’s
opinion, when Richmond probably has nothing to gain by a
conclusion that §3621(b) grants the Bureau of Prisons more
discretion than the Office of Legal Counsel believed. To say
that the Bureau has discretion is not to say that it must act
favorably on any inmate’s request.
Consider 18 U.S.C. §3621(e)(2)(B), which permits the
Bureau of Prisons to reduce the time served by a prisoner
who completes a substance-abuse program. Persons con-
victed of “crimes of violence” are ineligible, and the Bureau
concluded that anyone who possessed a weapon in connec-
tion with a crime was covered by that exception. After several
appellate courts held that this was a legal blunder—that
there is a difference between the inmate’s real offense be-
havior and the crime of conviction, and that only the latter
matters to eligibility—the Bureau revised its policies to
exclude all gun-toting felons as a matter of discretion. The
Supreme Court held that the new policy is lawful, because
a power to deny participation case-by-case implies a power
to exercise discretion categorically and establish a rule that
affects all situations. See Lopez v. Davis, 531 U.S. 230 (2001).
See also Bush v. Pitzer, 133 F.3d 455 (7th Cir. 1997).
That pattern is being repeated for §3621(a) and §3624(c).
Although several courts have held that the Bureau has more
discretion than the OLC thought, the Department of Justice
has decided not to exercise in prisoners’ favor whatever dis-
pensing power it possesses. It has proposed a rule that
inmates will be placed in community or home confinement
only during the last 10% of their sentences. See 69 Fed. Reg.
51213 (Aug. 18, 2004) (adding a new 28 C.F.R. §570.21).

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No. 04-2264 5
The rule has not yet been promulgated; the comment period
lasts until October 18, 2004. Unless comments lead to a
change, however, the Bureau will defer Richmond’s transfer
until February 3, 2005, or later, no matter how §3621(b) is
understood. Given the holding of Lopez that discretion may
be exercised by rule as well as by person-specific decision,
see also American Hospital Ass’n v. NLRB, 499 U.S. 606
(1991), Richmond is unlikely to obtain a judicial order di-
recting the Bureau to place him in community confinement
any time before February 3, 2005. Cf. Reno v. Koray, 515
U.S. 50, 61 (1995).
The difference between a claim of entitlement to be re-
leased, and an opportunity to be considered for release, also
affects the choice between §2241 and a mundane civil
action—here, under the Administrative Procedure Act for
review of the policy that rests on the OLC’s opinion. A
placement decision itself is not open to challenge under the
APA, see 18 U.S.C. §3625, but Richmond does not contest
his current placement; he contests only the rules that will
be used to decide where he should serve the last few months
of his time.
The parties’ briefs devote considerable energy to the
question whether differences between a minimum-security
prison camp (where Richmond now is being held) and com-
munity confinement are sufficiently great that Richmond
can be deemed to challenge the fact of custody, rather than
simply the conditions of confinement acknowledged to be
lawful. See, e.g., Moran v. Sondalle, 218 F.3d 647 (7th Cir.
2000); Graham v. Broglin, 922 F.2d 379 (7th Cir. 1991). As
should be clear by now, that’s the wrong perspective, for
victory in this litigation would not entitle Richmond to any
change in the duration or even the location of his confine-
ment.
A judge could do no more than determine the extent of the
Bureau’s discretion to make placement decisions; the
substance of any eventual decision is not at issue. Parole
litigation supplies a helpful analogy: a prisoner claiming a

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6 No. 04-2264
right to release on parole must use §2241 (or §2254 for a
state prisoner); but a prisoner claiming that parole officials
are apt to use incorrect rules when resolving a future ap-
plication must use the APA (or 42 U.S.C. §1983 for a state
prisoner). See, e.g., White v. Henman, 977 F.2d 292 (7th Cir.
1992); Clark v. Thompson, 960 F.2d 663 (7th Cir. 1992);
Walker v. Prisoner Review Board, 694 F.2d 499 (7th Cir.
1982).
Richmond’s suit therefore seems to us on the APA side of
a line that, as Clark and Graham discuss, has been hazy
ever since Preiser v. Rodriguez, 411 U.S. 475 (1973), and
Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974). A brighter
line, under which all challenges to the validity of criminal
convictions and the length of confinement fall under §2241,
§2254, and §2255, while challenges dealing with the condi-
tions of confinement (maximum vs. minimum custody, soli-
tary vs. general population, prison versus parole and other
conditional release) fall under other heads of civil litigation,
would have much to commend it. But we cannot adopt a
bright line while the Supreme Court adheres to the subtle
distinction between Preiser (challenge to fact or duration of
custody must proceed in habeas corpus) and Wolff (challenge
to rules affecting conditions of custody, and potentially
affecting duration of a particular kind of custody, proceeds
as ordinary civil suit unless conditions of custody change so
substantially that challenge really is to “fact” of custody). All
we can do is apply the standard sensibly and consistently.
Consistency implies treating a challenge to rules that
affect placement in community confinement the same way
as rules that affect placement in parole systems. The upshot
is that §2241 does not furnish the appropriate means to
contest the Bureau’s understanding of §3624(c). We rec-
ognize that Goldings proceeded under §2241, as did Lopez,
but the choice between §2241 and the APA was not brought
to either court’s attention by the litigants or discussed in
either opinion, so neither decision contains a holding on the
subject. See Pennhurst State School & Hospital v. Halderman,

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No. 04-2264 7
465 U.S. 89, 119 & n.29 (1984); United States v. L.A. Tucker
Truck Lines, Inc., 344 U.S. 33, 37-38 (1952); Webster v. Fall,
266 U.S. 507, 511 (1925).
Richmond has not followed any of the rules applicable to
prisoners’ general civil litigation—not only exhaustion
under §1997e(a) but also payment of the full docket fee,
screening through of the three-strikes rule, and the other dif-
ferences between requests for habeas corpus and general
civil litigation. These many differences have led us to say
that a petition for habeas corpus may not be “converted” to
a civil suit, nor may district judges convert suits in the
other direction. See Copus v. Edgerton, 96 F.3d 1038 (7th
Cir. 1996); Moore v. Pemberton, 110 F.3d 22 (7th Cir. 1997).
Instead the judge should leave that option to the litigants,
after they know what is at stake. Cf. Castro v. United States,
540 U.S. 375 (2003). In this situation, however, there is no
need for a remand so that Richmond may choose. If he were
to stick with §2241, the petition would have to be dismissed
because §2241 is the wrong section; if he were to elect the
APA, the petition would have to be dismissed under §1997e(a)
for failure to exhaust administrative remedies. As the two
come to the same thing, the district court’s judgment must
be
AFFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-19-04

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