Burgess v. Warden, Rochester FMC

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Albert C. Burgess, Jr.,
Petitioner,
v.
Warden, Rochester FMC,
Respondent.
Case No. 26-cv-01968 (LMP/ECW)
REPORT AND RECOMMENDATION
Petitioner Albert C. Burgess, Jr., is a federal prisoner. He was recently found in
possession of a deadly tool by officials of the Federal Bureau of Prisons (“BOP”) and,
following a disciplinary hearing, was punished with the loss of 41 days of good-time
credits. (See Dkt. 1 at 1.) Burgess does not challenge the lawfulness of the disciplinary
proceedings or the authority of the BOP to punish him for the disciplinary violation.
Burger alleges that the Disciplinary Hearing Officer “further restricted [him] to
Commissary Restriction,” and that “the Warden also decided to punish [Burgess] under a
very suspect manner and put an Encumbrance on” him. (Id.) According to Burgess,
“[u]nder existing BOP Policy, Inmates may spend $25.00 per month on limited items and
may buy one book of stamps per week, along with Four Copy Cards,” but this
commissary restriction has limited his ability to purchase copy cards and stamps, which
he would use to prosecute the various lawsuits that he intends to bring along with an
already pending habeas petition in another District. (Id. at 1-2.) Burgess believes that the
commissary restriction amounts to a double punishment for the same offense imposed in
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violation of the Double Jeopardy Clause of the Constitution, and he has filed what he
deems an “emergency petition” for a writ of habeas corpus challenging the commissary
restriction. (Id.)
This matter is before the Court on initial review of the habeas petition pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.1
As a result of that review, this Court concludes that the habeas petition should be denied
and this case dismissed.
As an initial matter, it does not appear that Burgess has exhausted administrative
remedies for his double jeopardy claim. Burgess does not mention having done so in his
habeas petition or accompanying materials, and it is unlikely that sufficient time has
passed since the imposition of the penalty at issue, which took place on January 25, 2026,
for Burgess to have proceeded through the full administrative-review process for his
claim. See 28 C.F.R. § 542.15 (setting forth the steps of the administrative review
process). Although the federal habeas corpus statute does not itself include an exhaustion
requirement, see generally 28 U.S.C. § 2241, courts have long required prisoners to
exhaust administrative remedies made available by the BOP before seeking habeas relief.
See Mathena v. United States, 577 F.3d 943, 946 (8th Cir. 2009); United States v.
Chappel, 208 F.3d 1069, 1069 (8th Cir. 2000) (per curiam).
1 	Although the habeas petition is not brought under 28 U.S.C. § 2254, the Rules
Governing Section 2254 Cases may nevertheless be applied to the petition. See
Rule 1(b).
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Under other circumstances, this Court would therefore direct Burgess to show
cause why this matter should not be dismissed for failure to exhaust administrative
remedies. That approach is unnecessary here, however, because Burgess’s habeas
petition has an even more fundamental problem. “If the prisoner is not challenging the
validity of his conviction or the length of his detention, such as loss of good time, then a
writ of habeas corpus is not the proper remedy.” Kruger v. Erickson, 77 F.3d 1071, 1073
(8th Cir. 1996) (per curiam) (citing Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)).
Burgess alleges that the formal disciplinary proceeding resulted in a loss of good-time
credits, but he expressly disavows in his habeas petition that he is challenging the result
of that proceeding. (See Dkt. 1 at 1.) Instead, Burgess limits his challenge only to the
loss of commissary access. Whatever the merits of this claim, the loss of commissary
privileges is not an attack on the fact or duration of Burgess’s confinement, and it is
therefore not the appropriate subject of a habeas petition. See Spencer v. Haynes, 774
F.3d 467, 469 (8th Cir. 2014).
The fact that Burgess has presented his claim through the incorrect procedural
vehicle is not necessarily fatal to that claim, because in appropriate cases, a court may
“recharacterize” a pleading in order to avoid that pleading being dismissed for reasons of
incorrect form. See id. at 471. But if Burgess were to have brought his claim through a
traditional non-habeas civil rights action, it is doubtful that this action would have turned
out any differently. A prisoner raising non-habeas claims must also first exhaust
administrative remedies before bringing suit—and, unlike in the habeas context,
exhaustion of administrative remedies by prisoners prior to filing suit is both statutory
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and mandatory in the non-habeas context. See 42 U.S.C. § 1997e(a); Johnson v. Jones,
340 F.3d 624, 628 (8th Cir. 2003) (“[T]he language of section 1997e(a) clearly
contemplates exhaustion prior to the commencement of the action as an indispensable
requirement, thus requiring an outright dismissal of such actions rather than issuing
continuances so that exhaustion may occur.”).
Accordingly, if this matter were to be reinterpreted as a non-habeas action, it
would almost certainly be subject to dismissal for failure to exhaust administrative
remedies. Moreover, Burgess would owe $350.00 for the privilege of having had his
habeas petition reinterpreted into the correct procedural vehicle and then dismissed. See
28 U.S.C. § 1915(b) (“if a prisoner brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the full amount of a filing fee.”). Because
reinterpretation of the pleading would serve no useful purpose, it is recommended that the
pleading not be reinterpreted as something it is not. Rather, the habeas petition should be
denied, and this case dismissed for lack of jurisdiction.
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY RECOMMENDED THAT:
1. 	The petition for a writ of habeas corpus of petitioner Albert C. Burgess, Jr.
(Dkt. 1) be DENIED.
2. 	This action be DISMISSED WITHOUT PREJUDICE for lack of
jurisdiction.
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Dated: March 30, 2026 	s/Elizabeth Cowan Wright
Elizabeth Cowan Wright
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. See Local
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits
set forth in Local Rule 72.2(c).
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