Opinion
NO. CV 11-5898-JAK(E)
11-15-2011
TIMOTHY WAYNE ARNETT, Petitioner, v. ARCOLA WASHINGTON-ADDUCI, Respondent.
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition without prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
____________
JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE
TIMOTHY WAYNE ARNETT, Petitioner,
v.
ARCOLA WASHINGTON-ADDUCI, Respondent.
NO. CV 11-5898-JAK(E)
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On July 18, 2011, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in Federal Custody." On July 27, 2011, Petitioner filed a supporting memorandum ("Pet. Memo"). Petitioner alleges that the Bureau of Prisons assertedly: (1) denied Petitioner due process by failing to consider Petitioner for placement in a Residential Reentry-Center ("RRC") for the last twelve months of his sentence as an "achievement award" for completing a non-residential drug abuse program (Petition, Ground One; Pet. Memo, pp. 1-5); and (2) failed to establish an incentive program for participation in skills development programs (Petition, Ground Two; Pet. Memo, pp. 6-12).
On October 3, 2011, Respondent filed an Answer to the Petition. On October 19, 2011, Petitioner filed a Reply.
BACKGROUND
Petitioner is serving a 3 00-month sentence for armed bank robbery (Petition, p. 2). Assuming Petitioner earns all available good conduct credit, his projected release date is July 1, 2017. See Declaration of Mark Colangelo filed with Answer ("Colangelo Decl."), ¶ 5 & Ex. A thereto. While incarcerated, Petitioner has earned an Associate of Arts degree from Coastline Community College. See Pet. Memo Ex. B (copy of diploma dated December 2009). Petitioner also completed a Non-Residential Drug Abuse Program on or about March 8, 2011 (Pet. Memo Ex. A).
On May 10, 2 010, Petitioner submitted a "Request for Administrative Remedy" form to his warden, requesting that the Bureau of Prisons (the "Bureau") create an incentive program in accordance with 42 U.S.C. section 17541(a)(2)(A) - (B), and grant Petitioner one year placement in an RRC and a $50 "reward" for completion of his college degree (Colangelo Decl. Ex. D-l). On June 3, 2010, Petitioner's warden denied the request, stating that: (1) the current Bureau policy did not include monetary incentives for completion of a college degree; (2) on October 10, 2008, prior to Petitioner earning his degree, Petitioner's unit team had considered Petitioner for RRC placement in accordance with the "Second Change [Sic] Act of 2007,"and determined that an RRC placement of 150-180 days was appropriate for Petitioner's reintegration into the community; and (3) on February 11, 2010, after Petitioner earned his degree, Petitioner's unit team reviewed Petitioner for immediate transfer to an RRC and determined that Petitioner's current security classification merited placement in a "Low" security level facility. See Colangelo Decl. Ex. D-3.
Section 17541(a)(2)(A) - (B), entitled the "Federal prisoner reentry initiative," provides:
(a) In general. The Attorney General, in coordination with the Director of the Bureau of Prisons, shall, subject to the availability of appropriations, conduct the following activities to establish a Federal prisoner reentry initiative:
(1) The establishment of a Federal prisoner reentry strategy to help prepare prisoners for release and successful reintegration into the community, including, at a minimum, that the Bureau of Prisons - . . . (G) provide incentives for prisoner participation in skills development programs.
(2) Incentives for a prisoner who participates in reentry and skills development programs which may, at the discretion of the Director, include - (A) the maximum allowable period in a community confinement facility [RRC]; and (B) such other incentives as the Director considers appropriate (not including a reduction of the term of imprisonment).
The "Second Chance Act of 2007," Pub. L. 110-199, 122 Stat. 657 (2007) ("Second Chance Act") amended 18 U.S.C. section 3 624, which governs the designation of prisoners to RRCs for the final months of their sentences. See Sacora v. Thomas, 628 F.3d 1059, 1062 (9th Cir. 2010), cert. denied. 2011 WL 4530684 (U.S. Oct. 3, 2011) (discussing same).
Petitioner's warden noted that Petitioner had received incentives for completing his degree in that Petitioner's custody classification was "positively affected" and scored as "Low," and that Petitioner's transfer to a low security facility had been initiated. See Colangelo Decl. Ex. D-3.
On June 9, 2010, Petitioner submitted a "Regional Administrative Remedy Appeal" form requesting that he receive as an award for his degree $50 and a full 12-month RRC placement (Colangelo Decl. Ex. D-4 - D-5). On July 8, 2010, Petitioner's regional director denied the request, stating:
There are no specific incentive awards for this particular accomplishment. . . . Although preliminary RRC consideration by the unit team using the five-factor criteria predicts you would be eligible for 150-180 days in an RRC, it is too soon to evaluate you for pre-release placement as you have seven years remaining on your sentence. You will be evaluated when you are within 17-19 months from release. However, in February 2010, the unit team reviewed your case for possible immediate transfer to an RRC as a place of confinement. Based on your instant offense and criminal history, you are accurately scored as a(Colangelo Decl. Ex. D-6).
Low security level offender and do not qualify for placement in a community setting at this time.
On July 25, 2010, Petitioner submitted a "Central Office Administrative Remedy Appeal" form requesting the same relief as requested from the Regional Director (Colangelo Decl. Ex. D-7). On January 19, 2011, the Administrator of National Inmate Appeals denied the request, explaining:
There is no current provision in policy for issuing monetary awards to inmates who complete a college degree. No inmate is entitled to either RRC placement or placement of a particular duration. The maximum duration of RRC placement was enlarged to 12 months by the Second Chance Act of 2007. You did, however, receive a lesser security transfer to FCI Terminal Island. Inmates are considered on an individual basis for pre-release community confinement in a manner consistent with the criteria established at 18 U.S.C. § 3621(b).
Your unit team considered your request for transfer to an RRC, but determined transfer is not warranted at this time. . . . Inmates are considered for pre-release RRC placement ordinarily 17 to 19 months prior to their projected release date. You are currently projected for release on July 1, 2017, so it is too soon for you to be transferred to an RRC
for pre-release purposes. ... If you are not satisfied with the recommendation made by your unit team, you may initiate a separate Request for Administrative Remedy at your local institution.(Colangelo Decl. Ex. D-8).
On January 20, 2011, near the completion of Petitioner's Non-Residential Drug Abuse Program, Petitioner submitted a "Request for Administrative Remedy Form" to his warden, requesting approval for a 12-month placement in an RRC as an achievement award for completing the drug program (Colangelo Decl. Ex. C-1 - C-2). On February 15, 2011, Petitioner's warden denied the request, stating, "You have been informed previously that a review of your record will be conducted by your unit team, and they will submit an RRC referral packet at an appropriate time and you will be informed by the team of the outcome of their RRC referral request" (Colangelo Decl. Ex. C-3).
On February 16, 2011, Petitioner submitted a "Regional Administrative Remedy Appeal" form requesting return of the matter to Petitioner's warden with instruction to award the maximum amount of RRC placement time to Petitioner (Colangelo Decl. Ex. C-4 - C-5). On March 15, 2011, Petitioner's regional director denied the request, stating:
A review of your case reveals that you are serving a 3 00-month sentence and have a projected release date of July 1, 2017, which is 75 months from now. Staff will formally(Colangelo Decl. Ex. C-6).
evaluate you for a pre-release transfer to an RRC when you are 17-19 months from your projected release date. Institution staff will utilize Program Statement 7310.04, Community Corrections Center (CCC) Utilization and Transfer Procedure. and the criteria set forth in the Second Chance Act of 2 007 in making their decision.
Program Statement 7310.04 is the Bureau's Program Statement concerning RRC placement procedures. See Bureau of Prisons, Community Corrections Center (CCC) Utilization and Transfer Procedure (Dec. 16, 1998), available at http:// www.bop.gov/policy/proastat/7310_004.pdf (last visited Nov. 4, 2011) . The Statement remains in effect "with minor adjustments" to comply with the Second Chance Act. See Colangelo Decl. Ex. E-2 - E-4 (April 14, 2008 Bureau memorandum explaining the changes to the law and applicable Bureau policies following the Second Chance Act).
On April 6, 2011, Petitioner submitted a "Central Office Administrative Remedy Appeal" form appealing the Regional Director's denial (Colangelo Decl. Ex. C-7). On June 3, 2011, the Administrator of National Inmate Appeals denied the request, explaining:
The maximum duration of RRC placement was enlarged to 12 months by the Second Chance Act of 2007. . . . Inmates are considered on an individual basis for pre-release community confinement in a manner consistent with the criteria established at 18 U.S.C. § 3621(b). . . .(Colangelo Decl. Ex. C-8).
You are currently projected for release on July 1, 2017. Prison staff have informed you they will consider you for RRC placement at the appropriate time. . . . Program Statement 5330.11, Psychology Treatment Programs, does not mandate the approval of a maximum period [of] RRC placement for inmates who successfully complete the non-residential drug abuse program. . . . We find no basis to compel staff to conduct a review for your RRC placement outside of the current established procedures.
Program Statement 5330.11 provides in relevant part:
Each warden is strongly encouraged to approve inmates who successfully complete the non-residential drug abuse program for the maximum period of RRC placement.
At Petitioner's most recent Program Review, which occurred on June 15, 2011, Petitioner's Unit Team reportedly discussed with Petitioner his pre-release placement in an RRC (Colangelo Decl. ¶ 17 & Ex. H-12). The Unit Team determined that a pre-release RRC placement review would be considered when Petitioner was with 17 to 19 months from his release date (Id.). Petitioner's Inmate Skills Development Plan prepared from this Program Review notes that Petitioner's security level remains "Low" (Colangelo Decl. Ex. H-1).
PETITIONER'S CONTENTIONS
Petitioner contends that the Bureau denied Petitioner due process by failing to consider Petitioner for a full 12-month RRC placement as an achievement award for completing the Non-Residential Drug Abuse Program, without reference to the factors set forth in Section 3621(b) and without input from Petitioner's unit team (Petition Ground One; Pet. Memo, pp. 4-5; Reply, § A). Petitioner also contends that the Bureau has failed to develop an incentive program to reward prisoners who participate in skill development programming, such as completion of college courses, as assertedly required by 42 U.S.C. section 17541 (Petition Ground Two; Pet. Memo, pp. 10-12; Reply, § B).
Petitioner requests that the Court order Respondent to consider Petitioner for a 12-month RRC placement without consideration of the factors set forth in Section 3621(b) or Section 3624(c) (Pet. Memo, pp. 5, 12; Reply, §§ A-B). Alternatively, Petitioner asks the Court to order the Bureau to consider transferring Petitioner to a minimum security camp which Petitioner alleges is commensurate with Petitioner's security custody level (Reply, § B). Petitioner also requests that the Court order the Bureau to develop an award system that rewards inmates for taking college courses (Reply, § B).
GOVERNING LEGAL STANDARDS
As amended by the Second Chance Act, 18 U.S.C. section 3624 governs the designation of prisoners to RRCs for the final months of their sentences. See Sacora v. Thomas, 628 F.3d 1059, 1062 (9th Cir. 2010), cert. denied, 2011 WL 4530684 (U.S. Oct. 3, 2011). Section 3624(c) provides that the Bureau:
shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for reentry of that prisoner into the community. Such conditions may include a community correctional facility.See 18 U.S.C. § 3624(c)(1). Section 3624(c)(6) delegates to the Bureau the responsibility to issue regulations to ensure that placement in a community correctional facility is conducted in a manner consistent with 18 U.S.C. section 3621(b), determined on an individual basis, and "of sufficient duration to provide the greatest likelihood of successful reintegration into the community." See 18 U.S.C. § 3624(c)(6). The Bureau accordingly has adopted policies for designating RRC placement, which the Ninth Circuit has approved. See Sass v. Thomas. 405 Fed. App'x 202, 203 (9th Cir. Dec. 8, 2010) (citing Sacora v. Thomas. 628 F.3d at 1061, as approving the Bureau's Second Chance Act-related policies); Sacora v. Thomas. 628 F.3d at 1061-67 (discussing applicable policies); see also 28 C.F.R. §§ 570.20-.22 (applicable regulations which track language in 18 U.S.C. § 3624(c)(6)); Colangelo Decl. Exs. E-F (April 14, 2008 and June 24, 2010 Bureau memoranda outlining modified procedures for determining RRC placements based on the Second Chance Act).
Community Correctional facilities are also known as Residential Reentry Centers. See Sacora v. Thomas, 628 F.3d at 1061; see also Bureau of Prisons, Statement of Work, Residential Reentry Center. Attachment F (Revision Feb. 2010) (defining "Residential Reentry Center"), available at www.bop.gov/business/ res_reentry_ctr_sow_2010.pdf (last visited Nov. 8, 2011).
Section 3621 provides in pertinent part:
(b) Place of imprisonment. The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-18 U.S.C. § 3621(b) (emphasis added).
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence--
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
(B) recommending a type of penal or correctional facility as appropriate; [] and
. . . The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another.
The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a).
Although not discussed in Sacora, the Bureau's June 24, 2010 memorandum reaffirms that inmates must continue to be individually assessed for their appropriateness for pre-release RRC placement using the five factors from 18 U.S.C. section 3621(b). See Colangelo Decl. Ex. F-2.
The Bureau is solely responsible for designating the place of a federal prisoner's confinement. 18 U.S.C. § 3621(b). A federal habeas court lacks jurisdiction to review the Bureau's individualized placement determinations. See Reeb v. Thomas, 636 F.3d 1224, 1227-28 (9th Cir. 2011) ("To find that prisoners can bring habeas petitions under 28 U.S.C. § 2241 to challenge the [Bureau's] discretionary determinations made pursuant to 18 U.S.C. § 3621 would be inconsistent with the language of 18 U.S.C. § 3 625. . . . [F]ederal courts lack jurisdiction to review the [Bureau's] individualized [] determinations made pursuant to 18 U.S.C. § 3 621."); see also United States v. Dragna, 746 F.2d 457, 458 (9th Cir. 1984), cert. denied, 469 U.S. 1211 (1985) (district court does not have jurisdiction to decide the location of a defendant's incarceration; that decision rests solely with the executive branch); United States v. Charry Cubillos, 91 F.3d 1342, 1343 n.l (9th Cir. 1996) (citing Dragna); Cook v. Wiley, 208 F.3d 1314, 1319 (11th Cir. 2000) (18 U.S.C. § 3625 precludes habeas review of Bureau's adjudicative decisions, although it does not preclude review of Bureau's rulemaking decisions); Martin v. Gerlinski. 133 F.3d 1076, 1079 (8th Cir. 1998) (same); cf. Brown v. Atkinson. 2010 WL 3659634, at *5 (S.D. Fla. June 11, 2010), adopted, 2010 WL 3659587 (S.D. Fla. Sept. 15, 2010) ("decisions regarding the prisoner's placement, including whether, when, and for how long he [or she] might appropriately be placed [] in a pre-release setting. . . are for the [Bureau] to make, and are matters over which this Court does not have authority"); Arred v. Phillips. 2008 WL 4219074, at *3 n.2 (N.D. W.Va. Sept. 15, 2008) (the court lacks authority to order the Bureau to afford a longer period of community corrections placement once a decision is made).
Even where a petitioner successfully challenges the Bureau's RRC placement policies (as opposed to placement decisions), the only relief a habeas court may grant is an order for individualized consideration of RRC placement in accordance with applicable laws. See Rodriguez v. Smith, 541 F.3d 1180, 1189 (9th Cir. 2008) (affirming grant of writ of habeas corpus based on finding Bureau's former policies unlawful, and ordering the Bureau to consider petitioner for transfer to an RRC in accordance with 18 U.S.C. section 3621(b), rather than ordering immediate transfer); cf. Crickon v. Thomas, 579 F.3d 978, 988-89 (9th Cir. 2009) (remanding case to grant habeas petition based on invalidity of Bureau rule concerning early release eligibility, and ordering district court to instruct the Bureau to reconsider petitioner's eligibility for early release in accordance with 18 U.S.C. section 3621(e)(2)(B), rather than ordering early release).
DISCUSSION
For the reasons discussed below, the Petition should be denied and dismissed without prejudice.
The Court has considered and rejected all of Petitioner's arguments. The Court discusses Petitioner's principal arguments herein. The recommended dismissal should be without prejudice to any rights or remedies Petitioner may have under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. 403 U.S. 388 (1971), the Federal Tort Claims Act, or any other federal law potentially authorizing the recovery of damages.
I. Petitioner's Challenge to the Bureau's Alleged Failure to Consider Petitioner for a Full Twelve-Month RRC Placement as an Achievement Award Does Not Merit Habeas Relief.
As summarized above, in response to Petitioner's request that the Bureau consider Petitioner for RRC placement as an award for completing the drug program, prison officials have advised Petitioner that Petitioner will be considered for RRC placement at 17 to 19 months before his release date in accordance with Bureau guidelines. Petitioner alleges that the Bureau's failure to consider Petitioner for RRC placement upon Petitioner's request, and without regard to the factors set forth in section 3621(b), has violated due process. (See Pet. Memo at 4-5; Reply at A).
Petitioner began his administrative appeals related to this request the day after the Administrator of National Appeals advised Petitioner that his unit team had considered Petitioner's request for a transfer to an RRC and determined transfer was not warranted at that time. See Colangelo Decl. Exs. C-D.
Petitioner's due process claim must fail. A prisoner has no liberty interest in being housed in a particular prison. See Witherow v. Crawford. 339 Fed. App'x 785, 786 (9th Cir. July 31, 2009), cert. denied. 130 S. Ct. 2107 (2010) (citing Meachum v. Fano. 427 U.S. 215, 224-27 (1976) ("The Constitution does not. . . guarantee that the convicted prisoner will be placed in any particular prison. . . .")). Congress has vested in the Bureau "full discretion to control [] conditions of confinement," including prisoner classification and eligibility for rehabilitative programs. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); see also Reeb v. Thomas, 636 F.3d at 1228 n.4 (noting that prisoner's due process claim concerning the conditions of confinement failed because inmates have no protected liberty interest, citing, inter alia. Moody v. Daggett); 18 U.S.C. § 3621.
Petitioner has no constitutional or statutory right to consideration for a transfer to an RRC at any time prior to when 18 U.S.C. section 3624(c) comes into play. See Navarro v. Smith, 2007 WL 1764949, at *4 (E.D. Cal. June 19, 2007), adopted, 2007 WL 2206915 (E.D. Cal. July 30, 2007) ("The Court is unaware of any authority requiring the [Bureau] to conduct its RRC eligibility reviews or immediately transfer a prisoner to an RRC facility on demand of a prisoner.") (emphasis original). Section 3621(b) is entirely silent regarding when, if ever, the Bureau must transfer any prisoner. The statute is equally silent regarding when, if ever, the Bureau must consider a request for a transfer. See 18 U.S.C. § 3621(b). Program Statement (PS 5330.11), which provides that each warden is "strongly encouraged to approve inmates who successfully complete the nonresidential drug abuse program for the maximum period of RRC placement," does not entitle Petitioner to maximum RRC placement. See Pet. Memo at 5. Nor does the Program Statement provide when, if ever, a warden must consider an inmate's request for RRC placement as an achievement award. The Bureau's alleged failure to consider Petitioner's request to be awarded a particular achievement award, made seven years before his projected release date, plainly did not violate due process.
See Bureau of Prisons, Psychology Treatment Programs (Mar. 16, 2009), at § 2.4.8, available at http://www.bop.gov/policy/ progstat/5330_011.pdf (last visited Nov. 3, 2011).
The Bureau does have a statutory obligation to consider transferring a prisoner once 18 U.S.C. section 3624(c) comes into play. To the extent practicable, the Bureau must ensure that prisoners nearing the end of their term of imprisonment spend a portion of the final months under conditions affording the prisoners a reasonable opportunity to prepare for reentry into the community - conditions which "may" include up to 12 months' placement in an RRC. See 18 U.S.C. 3624(c)(1); see also Sacora v. Thomas. 628 F.3d at 1070 (Section 3624(c) affords the Bureau the "option" of making RRC placements up to 12 months; placement is not required). As summarized above, Congress directed the Bureau to issue regulations to ensure that placement in an RRC is: (1) conducted in a manner consistent with section 3621(b); (2) determined on an individual basis; and (3) of sufficient duration to provide the greatest likelihood of reintegration into the community. See 18 U.S.C. § 3624(c)(6); see also Rodriguez v. Smith, 541 F.3d at 1187 (finding that review under section 3621(b)'s five factors is "mandatory"). Had Congress intended to require the Bureau periodically to review placements or to consider transfer requests years prior to the prisoners' projected release dates and without regard to section 3621(b), Congress presumably would have said so. Congress did not. Rather, Congress delegated to the Bureau the task of issuing regulations, and the Bureau's regulations do not provide any deadlines for reviewing inmates' transfer requests. See 28 C.F.R. §§ 570.20-22.
The Bureau's internal memoranda provide that pre-release RRC determinations will be made between 17 and 19 months prior to the expiration of a prisoner's term, and that RRC transfer requests made before the last year of a sentence will be reviewed at regularly scheduled program meetings. See Colangelo Decl. Ex. E-3 (Bureau's April 14, 2008 memorandum provides that, because the Second Chance Act increased the maximum available pre-release RRC placement time to 12 months, Bureau staff must review inmates for pre-release earlier than stated in Program Statement 7310.04); see also Sacora v. Thomas. 628 F.3d at 1068-69 (approving Bureau guidelines set forth in the April 14, 2008 and November 14, 2008 memoranda; observing that November 14, 2008 memorandum provides guidance for Bureau staff when considering inmate requests for transfers to RRCs before the final 12 months of the inmate's sentence).
Mark Colangelo does not discuss the November 14, 2008 memorandum in his declaration or provide the Court with a copy of the memorandum. See Colangelo Decl. A copy of the November 14, 2008 memorandum was filed in another case before this Court, Rowe v. Ouintana. CV 10-8233-SVW(E). See Exhibit C to the Declaration of Jeffrey Horton filed with "Respondent's Response to the Petition for Writ of Habeas Corpus, etc." in the Rowe case on February 8, 2011. The November 14, 2008 memorandum provides, in relevant part:
Timing of Reviews. If an inmate requests transfer to an RRC prior to the pre-release time frame of 12-months from release, staff must individually consider the request, just as they would any other request for lower security transfer. There is no need, however, to immediately perform the individualized review at the moment it is submitted. Rather, the inmate should be informed that his/her request will be fully reviewed in conjunction with the next scheduled Program Review.
* * *
If staff determine, . . . after individualized review, that the inmates's current designation is commensurate with his/her security and programming needs, the inmate will be informed that the current designation is appropriate, and that the transfer request is denied.
In accordance with the Bureau's November 14, 2008 memorandum (which supplements Program Statement 7310.04), the Bureau arguably should have expressly reviewed Petitioner's request for a transfer at his next regularly scheduled Program Review. Any failure to have done so does not support a habeas claim, however. "A habeas claim cannot be sustained based solely upon the [Bureau's] purported violation of its own program statement because noncompliance with a [Bureau] program statement is not a violation of federal law." Reeb v. Thomas, 636 F.3d at 1227; see also Sun v. Ashcroft, 370 F.3d 932, 937 (9th Cir. 2004) ("The general habeas statute, 28 U.S.C. § 2241, limits claims to those that allege violations of the constitution, federal statute, or treaties.") (citation and internal quotations omitted); Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 827 (9th Cir. 2002), amended, 337 F.3d 1023 (9th Cir. 2003) (habeas relief is unavailable under section 2241 "to challenge purely discretionary (yet arguably unwise) decisions made by the executive branch that do not involve the Constitution or federal law"). Moreover, had the Bureau expressly reviewed Petitioner's request for a transfer, the outcome of the review doubtlessly would have been the same as the Bureau's then recent denial of a similar request by Petitioner. See Colangelo Decl. Exs. D-8, H-1.
Circuit and District Courts are in accord that inmates are not entitled to individualized consideration for RRC placement at all times of the inmates' choosing. See, e.g.. Miller v. Whitehead, 527 F.3d 752, 757 (8th Cir. 2 008) (an inmate is not "entitled to a fullblown analysis of a request to transfer, involving individualized consideration of all five factors in § 3621(b), whenever an inmate chooses to make such a request"); Muniz v. Sabol. 517 F.3d 29, 36 n.14 (1st Cir.), cert. denied, 555 U.S. 853 (2008) (section 3621(b) does not require individualized consideration until the Bureau has decided to exercise its discretion to transfer an inmate); Ingram v. Thomas, 2011 WL 1791234, at *4 (D. Or. May 10, 2011) ("inmates are not entitled to individualized consideration of the factors in §3621(b) any time an inmate so requests"); Binford v. Thomas, 2011 WL 1791198, at *4 (D. Or. May 10, 2011) (same); Sass v. Thomas, 2009 WL 2230759, at *7 (D. Or. July 23, 2009), affirmed, 405 Fed. App'x 202 (9th Cir. Dec. 8, 2010) (Bureau has no duty to analyze RRC requests under section 3621(b) "at an inmate's whim"); Stockton v. Adler, 2008 WL 5136133, at *3 (E.D. Cal. Dec. 8, 2008), adopted, 2009 WL 188145 (E.D. Cal. Jan. 23, 2 009) (inmate has no statutory right to immediate assessment or transfer under section 3621(b)).
Petitioner maintains that, without immediate consideration of a 12-month RRC placement, the time frame may be too short to guarantee review by a federal court should Petitioner take issue with the Bureau's placement decision (Reply, § C). Petitioner suggests that, if the Bureau reviews Petitioner's release plan 17 to 19 months prior to his projected release date and determines an RRC placement length with which Petitioner disagrees, by the time Petitioner completes administrative review of the Bureau's decision and files a habeas petition he will be close enough to his anticipated release date effectively to preclude judicial review (Reply, § C).
While the Court is mindful of the time required to exhaust an administrative appeal where a prisoner seeking RRC placement may have only a limited time remaining in custody, Petitioner will not be without review should he disagree with the Bureau's initial placement decision. Petitioner will be able to appeal the decision within the Bureau pursuant to the Bureau's Administrative Remedy Program, 28 C.F.R. sections 542.10-19. Moreover, as explained above, it is not within the jurisdiction of the federal habeas court to review the Bureau's purely discretionary decision regarding how much time Petitioner should spend in an RRC; the Court may only review whether Petitioner has received individualized consideration. Reeb v. Thomas. 636 F.3d at 1227. In any event, Congress chose not to require the Bureau to make an RRC placement decision years before the decision would be implemented. It is not within this Court's proper habeas authority to evaluate the wisdom of that choice.
For all the foregoing reasons, Petitioner's due process claim does not merit federal habeas relief.
To the extent Petitioner may also be trying to bring a general challenge under the Administrative Procedure Act ("APA"), 5 U.S.C. section 701 et sea., to the Bureau's regulation concerning non-residential drug abuse treatment services, Petitioner is not entitled to habeas relief. See Reply, § A. The APA provides a cause of action for persons suffering legal wrongs because of agency action. 5 U.S.C. § 702. The regulation at issue in this case, 28 C.F.R. § 550.52, merely provides that all institutions must have non-residential drug abuse treatment services available to inmates who voluntarily decide to participate. The regulation does not mention program incentives. See 28 C.F.R. § 550.52. Program Statement 5330.11, which does mention incentives and is the basis for Petitioner's RRC request, is not subject to the "rigors" of the APA. See Reeb v. Thomas, 636 F.3d at 1227 (explaining that program statements are merely internal agency guidelines; citing, inter alia. Jacks v. Crabtree, 114 F.3d 983, 985 n.l (9th Cir. 1997), cert. denied, 523 U.S. 1009 (1998)).
II. Petitioner's Challenge to the Bureau's Alleged Failure to Establish an Incentive Program in Accordance with 42 U.S.C. § 17541 Does Not Merit Habeas Relief.
Petitioner contends that the Bureau has failed to establish an incentive program to award skill development programming, such as earning a college degree, as purportedly required by 42 U.S.C. section 17541(a)(2)(A) (Petition, Ground Two; Pet. Memo, pp. 6-10; Reply, § B) . Petitioner concedes that the Bureau is not required to give him any specific award for earning his college degree, but asserts that the Second Chance Act requires the Bureau to give him "something meaningful" (Reply, § B; see also Pet. Memo, p. 5 (acknowledging that Program Statement 5330.11 does not entitle Petitioner to the maximum RRC placement)).
Section 17541, which was created by the Second Chance Act, provides in relevant part:
The Attorney General, in coordination with the Director of the Bureau of Prisons, shall, subject to the availability of appropriations, conduct the following activities to establish a Federal prisoner reentry initiative: The establishment of a Federal prisoner reentry strategy to help prepare prisoners for release and successful reintegration into the community, including, at a minimum, that the Bureau of Prisons. . . provide incentives for prisoner participation in skills development programs.42 U.S.C. § 17541(a)(1)(G). Such incentives "may, at the discretion of the Director, include [] the maximum allowable period in a community confinement facility; and [] such other incentives as the Director considers appropriate." 42 U.S.C. § 17541(a)(2)(A) (emphasis added).
As Petitioner acknowledges, the Second Chance Act does not mandate that the Bureau designate those prisoners who participate in skills development programs for the full twelve months of RRC placement as an incentive for such participation. The Act expressly leaves to the discretion of the Bureau the nature of the incentives. See 42 U.S.C. § 17541(a)(2)(A) ; see also Richardson v. Dir. for Fed. Bureau of Prisons. 2011 WL 2559423, at *1 (3d Cir. June 29, 2011) (rejecting claim that Second Chance Act requires that Bureau give any particular incentives to prisoners under section 17541); Greene v. Longley, 2011 WL 3924984, at *7 (W.D. Pa. Sept. 7, 2011) (same); Graves v. Babcock. 2011 WL 818447, at *5 (N.D. Fla. Jan. 20, 2011), adopted, 2011 WL 809493 (N.D. Fla. Feb. 28, 2011) (finding that language of statute does not create entitlement to twelve months of RRC placement); Rosario v. Seism, 2011 WL 398200, at *8 (M.D. Pa. Jan. 20, 2011), adopted, 2011 WL 444145 (M.D. Pa. Feb. 1, 2011) (same); Bell v. Zych, 2010 WL 5114504, at *3 (E.D. Mich. Nov. 16, 2010), adopted, 2010 WL 5100994 (E.D. Mich. Dec. 9, 2010) (same); Arthur v. Roal, 2010 WL 3025019, at *7 (D. Minn. July 6, 2010), adopted. 2010 WL 3024848 (D. Minn. Aug. 2, 2010) (same); Rodriguez v. Bledsoe. 2010 WL 2471740, at *9 (M.D. Pa. May 7, 2010), adopted, 2010 WL 2471697 (M.D. Pa. June 15, 2010) (same); Delacruz v. Bledsoe, 2010 WL 1791241, at *10 (M.D. Pa. Mar. 3, 2010), adopted. 2010 WL 1791234 (M.D. Pa. May 4, 2010) (same); and see "Report and Recommendation of United States Magistrate Judge" filed on September 28, 2011 in Rowe v. Quintana. Case No. CV 10-8233-SVW(E).
In addition to the personal enrichment inherent in a post-secondary education, additional incentives appear to have attended Petitioner's participation in skills development programs. As Petitioner acknowledges, he was asked to be the keynote speaker at a yearly award ceremony when he completed his college degree (Pet. Memo, p. 6). Petitioner also received certificates for course completion, the maximum allowable days of good conduct time, a good custody classification score leading to Petitioner's transfer to a prison with a reportedly less-restrictive correctional environment, job placements and performance pay above the maintenance pay level, and no monthly commissary spending limit (Colangelo Decl. ¶ 16, & Ex. D-3). Section 17541 does not require any further "incentives," much less those particular incentives Petitioner has proposed.
See 28 C.F.R. § 544.20 (providing for inmate participation in postsecondary education programs upon approval); Bureau of Prisons, Postsecondary Education Program for Inmates (Dec. 19, 2003), available at http://www.bop.gov/policy/progstat/ 5354_003.pdf (last visited Nov. 7, 2011) (same).
Petitioner's unit manager has stated that when Petitioner's case is reviewed for pre-release RRC placement 17 to 19 months prior to his release date, Petitioner's programming will be factored into the determination (Colangelo Decl. ¶ 16).
Petitioner cites certain cases from the Middle District of Pennsylvania as assertedly standing for the proposition that 42 U.S.C. section 17541 was intended to create incentives for a prisoner's participation in skills development programs, apart from consideration for pre-release RRC placement under 18 U.S.C. section 3624(c). See Pet. Memo, pp. 11-12 (citing inter alia, Kruecrer v. Martinez, 665 F. Supp. 2d 477, 486 (M.D. Pa. Sept. 3, 2009) ("Kruecrer") ). These cases do not alter this Court's conclusion.
In Krueger, the district court interpreted Section 17541 as requiring that the Bureau conduct a second, separate individualized consideration (in addition to consideration under 18 U.S.C. section 3624(c)), for a full twelve months of RRC placement as an incentive for those prisoners who participate in skills development programs. Id. at 485-86. Because the Krueger court could not discern from the record whether the Bureau had separately considered Krueger for a full RRC placement as an incentive for his programming, the court ordered the Bureau to consider separately a twelve-month placement. Id. at 486.
No district court outside the Middle District of Pennsylvania has agreed with Krueger's novel interpretation of section 17541. Many district court decisions subsequent to Krueger have rejected the suggestion that section 17541 requires the consideration of any particular incentives for participation in skills development programming, or requires an RRC consideration separate from the consideration normally given under 18 U.S.C. section 3624(c). See, e.g., Crim v. Benov, 2011 WL 1636867, at *7-*ll (E.D. Cal. Apr. 29, 2011) (rejecting Krueger and collecting district court cases reaching same conclusion); Greene v. Longley. 2011 WL 3924984, at *7-*8 (same; adopting reasoning in Crim); and see "Report and Recommendation of United States Magistrate Judge" filed on September 28, 2011 in Rowe v. Ouintana. Case No. CV 10-8233-SVW(E) (this Court declining to follow Krueger); but see Hill v. Seism. 2011 WL 705354, at *2-*3 (M.D. Pa. Feb. 18, 2011) (following Krueger); McDowell v. Seism, 2011 WL 184013, *5 (M.D. Pa. Jan. 20, 2011) (same); Polishan v. Hubbard, 2011 WL 43457, at *4 (M.D. Pa. Jan. 6, 2011) (same).
This Court once again declines to adopt Krueger's interpretation of section 17541. The plain language of section 17541 provides that the Bureau "may" (not must) employ a twelve-month RRC placement incentive for prisoner participation in skills development programs.Nothing in the plain language of the statute requires a separate consideration of programming for a twelve-month RRC placement where the Bureau otherwise has accounted for such programming in making its individualized RRC determination under 18 U.S.C. section 3624(c). The Court must enforce statutes according to their terms. See Caminetti v. United States. 242 U.S. 470, 485 (1917) ("the meaning of the statute must, in the first instance be sought in the language in which the act is framed, and if that is plain. . . the sole function of the courts is to enforce it according to its terms"); Cowart v. Nicklos Drilling Co.. 505 U.S. 469, 475 (1992) ("when a statute speaks with clarity to an issue[,] judicial inquiry. . . is finished").
Even the Krueger court "agree[d] that the language of § 17541 vests discretion with the BOP concerning the type of incentives to award." Krueger, 665 F. Supp. 2d at 485.
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RECOMMENDATION
For all the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.
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CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
See 42 U.S.C. § 17541 (emphasis added).
See Bureau of Prisons, Psychology Treatment Programs (Mar. 16, 2009), at § 2.4.8, available at http://www.bop.gov/policy/ progstat/5330_011.pdf (last visited Nov. 3, 2011).
Id. at 2-3 (emphasis original). The Court takes judicial notice of the November 14, 2008 memorandum filed in the Rowe case. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1998) (court may take judicial notice of court records).