Berg v. Warden, FCI-Leavenworth

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEAN JEROME BERG, )
)
Petitioner, )
)
v. ) Case No. 25-3177-JWL
)
Warden, FCI-Leavenworth, )
)
Respondent. )
)
_______________________________________)
MEMORANDUM 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 dismisses the petition for failure to exhaust
administrative remedies.
Petitioner, who is imprisoned within this judicial district, is serving a 172-month
sentence and has a projected release date of January 24, 2031. 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), with the result that his eventual transfer to prerelease
custody 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 18, 2025.
The Court concludes that the petition is subject to dismissal because of a failure to
exhaust. Petitioner was required to exhaust administrative remedies before seeking relief
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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 “the BOP has established a systemic practice of denying earned time credits and
prerelease placement,” but his only case citation1 does not support that claim. See id. at *3
(rejecting similar argument for futility) (citing, inter alia, Garza, 596 F.3d at 1204); Roe v.
Warden, FCI-Leavenworth, 2025 WL 3652934, at *1 (D. Kan. Dec. 17, 2025) (Lungstrum,
J.) (rejecting the same argument based on the same case citation). Thus, petitioner has not
provided a basis for excusing his failure to exhaust in this case, and the Court therefore
dismisses the petition on that basis.
1 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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IT IS THEREFORE ORDERED BY THE COURT THAT the petition for habeas
corpus under 28 U.S.C. § 2241 is hereby dismissed.
IT IS SO ORDERED.
Dated this 14th day of January, 2026, in Kansas City, Kansas.
/s/ John W. Lungstrum
Hon. John W. Lungstrum
United States District Judge
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