Roe v. Warden, FCI-Leavenworth

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DENNIS MICHAEL ROE JR., )
)
Petitioner, )
)
v. ) Case No. 25-3176-JWL
)
Warden, FCI-Leavenworth, )
)
Respondent. )
)
_______________________________________)
MEMORADNUM AND ORDER
Petitioner filed a pro se petition for habeas corpus under 28 U.S.C. § 2241, by which
he challenges the calculation and application of credits against his sentence. For the
reasons set forth below, the Court denies the petition.
Petitioner, who is imprisoned within this judicial district, is serving a 240-month
sentence and has a projected release date of July 2, 2032. In his petition, petitioner claims
that the Bureau of Prisons (BOP) has failed to calculate and apply credits earned under the
First Step Act (FSA); that the BOP has improperly failed to transfer him to prerelease
custody; and that his completion of a drug program has been delayed. Respondent filed an
answer to the petition, but petitioner did not file a traverse or reply brief by the Court’s
ordered deadline of December 3, 2025.1
1 Petitioner requested and received a 30-day extension of that deadline from
November 3 to December 3.
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First, the petition is subject to dismissal because of a failure to exhaust. Petitioner
was required to exhaust administrative remedies before seeking relief from this Court. See
Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (“The exhaustion of available
administrative remedies is a prerequisite for § 2241 habeas relief . . . .”). Petitioner
concedes in his petition that he has not exhausted his administrative remedies (a fact
confirmed by evidence submitted by respondent). Petitioner argues, however, that
exhaustion would be futile because the BOP has adopted a uniform policy and practice of
denying earned credits and transfer to prerelease custody.
It is true that “[a] narrow exception to the exhaustion requirement applies if a
petitioner can demonstrate that exhaustion is futile.” See id. Petitioner has not shown such
futility, however. See Garner v. United States, 2021 WL 3856618, at *2 (D. Kan. Aug. 30,
2021) (Lungstrum, J.) (futility exception applies only in extraordinary circumstances, and
petitioner bears the burden to demonstrate futility of administrative review). He claims
that numerous inmates in his and other prisons have reported “identical miscalculations
and denials” of credits, but he has provided no evidence to support that statement or his
claim of “an ongoing, widespread violation of federal law” by the BOP. He also claims
that “[n]umerous cases reflect a systemic pattern of BOP denying or misapplying FSA and
[Second Chance Act] credits,” but his only case citation2 does not support that claim. See
id. at *3 (rejecting similar argument for futility) (citing, inter alia, Garza, 596 F.3d at
2 Petitioner cites a May 13, 2025, order filed in Arellano v. Warden, No. 25-751
(W.D. Tex.), but a review of that case’s docket reveals that no substantive orders have been
issued in that case, and the May 13, 2025, filing is merely a standing order referring the
case to a magistrate judge.
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1204). Thus, petitioner has not provided a basis for excusing his failure to exhaust in this
case.
Moreover, petitioner has not shown that he is entitled to relief on the merits of his
petition. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (district court may
deny unexhausted habeas claim on the merits). Habeas corpus relief may be appropriate
under Section 2241 if a prisoner shows that he is in custody in violation of the Constitution
or federal law. See 28 U.S.C. § 2241(c)(3). Petitioner has not shown such a violation in
this case, however. First, petitioner refers to 180 days of FSA credits he has earned, but he
has not shown that the BOP has failed to recognize those credits. Second, petitioner claims
that he is eligible for immediate transfer to prerelease custody under 18 U.S.C. § 3624(g),
but he has not shown that he satisfies that statute’s requirement that he has earned credits
in an amount equal to the remainder of his term of imprisonment, as required for eligibility
for transfer. See id. § 3624(g)(1)(A). As noted, petitioner has referred only to 180 days of
credits, and he still has many years left on his sentence. Third, petitioner has not shown
that the claimed delay with respect to the drug treatment program has affected the execution
of his sentence, as he would still be eligible for a one-year reduction of his sentence under
18 U.S.C. § 3621(e) for eventually completing the program. Accordingly, the Court denies
the petition.
IT IS THEREFORE ORDERED BY THE COURT THAT the petition for habeas
corpus under 28 U.S.C. § 2241 is hereby denied.
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IT IS SO ORDERED.
Dated this 17th day of December, 2025, in Kansas City, Kansas.
/s/ John W. Lungstrum
Hon. John W. Lungstrum
United States District Judge
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