Gordon v. Rardin

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
I. Introduction
Robert D. Gordon is a federal prisoner who is currently incarcerated at the
Federal Correctional Institution in Milan, Michigan. He filed a petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2241, claiming that he is entitled to placement
in prerelease custody on his current sentence under the First Step Act (FSA) and the
Second Chance Act (SCA). Respondent filed an answer to the petition, arguing that
the case should be dismissed because Gordon failed to exhaust his administrative
remedies. Gordon filed a motion to supplement his habeas petition as well as a reply
ROBERT D. GORDON,
Petitioner,
v.
ERIC RARDIN,
Respondent.
Case No. 25-cv-11001
Honorable Robert J. White
OPINION AND ORDER GRANTING PETITIONER’S MOTION TO
SUPPLEMENT THE PETITION, DISMISSING THE PETITION FOR A
WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
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brief. For the following reasons, (1) the motion to supplement the petition is granted,
and (2) the petition is summarily dismissed without prejudice.
II. Background
Gordon pleaded guilty pursuant to a plea agreement to coercion and
enticement of a minor (18 U.S.C. § 2422(b)) and interstate travel with intent to
engage in a sexual act with a minor (18 U.S.C. § 2423(b)). (United States v. Gordon,
Case No. 17-cr-20636). United States District Judge Terrence G. Berg sentenced
him to 204 months in prison and eight years of supervised release. (ECF No. 6-2,
PageID.63; Case No. 17-cr-20636, ECF No. 41). He did not appeal the judgment of
conviction.
Gordon did move to vacate his sentence under 28 U.S.C. § 2255, which Judge
Berg denied. (Case No. 17-cr-20636, ECF Nos. 42, 50). The Sixth Circuit Court of
Appeals denied his application for a certificate of appealability. (Id., ECF No. 55).
Gordon then filed a habeas petition challenging his conviction under 28 U.S.C. §
2241. United States District Judge Jonathan J.C. Grey dismissed that petition. (Case
No. 23-cv-11315, ECF No. 5).
In the current petition, Gordon contends that he is entitled to placement in
prerelease custody at a halfway house due to the credits he received under the FSA
as well as the SCA. Gordon specifically claims that the Bureau of Prisons (BOP)
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improperly deducted five hundred and seventy days of FSA credit from him without
justification.
III. Analysis
A. Motion to Supplement
The decision to grant or deny a motion to supplement or amend a habeas
petition is within the district court’s discretion. See Raglin v. Shoop, No. 19-3361,
2022 U.S. App. LEXIS 15289, at *19 (6th Cir. Jun. 1, 2022). Notice and substantial
prejudice to the opposing party are the critical factors in determining whether an
amendment to a habeas petition should be granted. Coe v. Bell, 161 F.3d 320, 341-
342 (6th Cir. 1998). Because the proposed supplement to the petition advances a
new claim that may be meritorious the Court will grant the motion to supplement.
See e.g. Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016).
B. Dismissal Without Prejudice
Turning to the requested relief, petitioners must first exhaust their
administrative remedies before seeking habeas relief pursuant to 28 U.S.C. § 2241.
See Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013); see also Fazzini v.
Northeast Ohio Correctional Center, 473 F.3d 229, 231 (6th Cir. 2006). The failure
to exhaust administrative remedies is an affirmative defense that the respondent is
required to prove. See e.g. Luedtke, 704 F.3d at 466.
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The Bureau of Prisons maintains an Administrative Remedy Program which
allows an inmate to seek formal review of any issue relating to the inmate’s
confinement. 28 C.F.R. § 542.10(a). “The Bureau’s regulatory regime for prisoner
grievances consists of four tiers: (1) seeking informal resolution with a staff member;
(2) submitting a grievance to the Warden on a ‘BP–9’ form; (3) appealing to the
Regional Director on a ‘BP–10’ form within 20 days of the date the Warden signed
the response to the grievance; and (4) appealing to the General Counsel of the
Central Office on a ‘BP–11’ form within 30 days of the date the Regional Director
signed the response to the appeal.” Risher v. Lappin, 639 F.3d 236, 238–39 (6th Cir.
2011). “The BP–10 and BP–11 forms must be accompanied by a copy of the filings
and responses from the previous levels.” Id. at 239. “At each level, the responsible
administrator must respond to an inmate’s request or appeal within a certain time
period: the Warden within 20 days; the Regional Director within 30 days; and the
General Counsel within 40 days.” Id. The time to respond can be extended by 20
days by the Warden, 30 days by the Regional Director, or 20 days by the General
Counsel. Id. 28 C.F.R. § 542.18 provides that “[i]f the inmate does not receive a
response within the time allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that level.” Risher, 639 F.3d at
239.
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Administrative law requires the proper exhaustion of administrative remedies,
which “means using all steps that the agency holds out, and doing so properly.”
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (internal citation and quotation omitted).
“Proper exhaustion demands compliance with an agency’s deadlines and other
critical procedural rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.” Id. at 90-
91.
Here, Gordon acknowledges that he failed to exhaust his administrative
remedies. But he asserts that exhaustion would be futile because his eligibility date
for placement in a halfway house is August 2025 (according to his own calculations).
In Gordon’s view, exhausting those remedies would moot the current habeas petition
because his purported release date already passed.
Although there is a futility exception to the exhaustion requirement, federal
courts have consistently rejected Gordon’s position. See, e.g., Clark v. Allenwood,
665 F. App’x 136, 138 (3d Cir. 2016) (“Clark’s belief that the BOP will not act on
his grievance before he is released from custody does not make the administrative
remedy system futile”); see also Gongora-Baltan v. Healy, No. 24-1597, 2024 U.S.
Dist. LEXIS 204842, at *4 (N.D. Ohio Nov. 12, 2024) (rejecting futility argument
based on petitioner not having “enough time to pursue his remedies before his release
date” where petitioner “made no efforts to comply with the BOP’s administrative
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process, and instead, he filed a petition in federal court”); DeLeo v. Paul, No. 23-
241, 2023 U.S. Dist. LEXIS 147160, at *3 (E.D. Ky. Aug. 22, 2023) (“This Court
and others have rejected the notion that already-passed or impending release, at least
according to the petitioner’s calculations, is sufficient to deem exhaustion futile”);
Masselli v. U.S. Parole Comm’n, 631 F. Supp. 1442, 1446 (S.D.N.Y. 1986)
(“Federal prisoners who challenge revocations of parole must exhaust administrative
remedies before seeking habeas corpus relief, even though they claim they are
entitled to immediate release.”).
What is more, Respondent submitted a declaration from a BOP case manager
indicating that Gordon’s actual earliest prerelease date is December 2026. (ECF No.
6, PageID.51; ECF No. 6-2, PageID.63, ¶ 8). So he fails to show how the exhaustion
of his administrative remedies would be futile. See Pollock v. Rardin, No. 24-12731,
2025 U.S. Dist. LEXIS 115438, at *12-13 (E.D. Mich. Jun. 17, 2025) (rejecting
futility argument where petitioner offered no evidence his prelease date of May 10,
2024 had passed, particularly where respondent argued that under the best case
scenario, petitioner’s earliest projected FSA conditional placement date was
September 26, 2025). Accordingly,
IT IS ORDERED that the motion to supplement the petition for a writ of
habeas corpus (ECF No. 8) is granted.
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IT IS FURTHER ORDERED that the habeas petition (ECF No. 1) is
summarily dismissed without prejudice.
IT IS FURTHER ORDERED that Gordon is granted leave to appeal in forma
pauperis because any appeal would be taken in good faith. See Foster v. Ludwick,
208 F. Supp. 2d 750, 765 (E.D. Mich. 2002).
Dated: October 22, 2025 s/Robert J. White_______________
Robert J. White
United States District Judge
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