Opinion
CIV-23-1087-JD
05-14-2024
DERREK E. ARRINGTON, Petitioner, v. BUREAU OF PRISONS (DSCC) Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a pro se federal prisoner incarcerated at FCI El Reno in El Reno, Oklahoma, has filed a petition for habeas corpus relief under 28 U.S.C. § 2241 challenging the Bureau of Prisons' (BOP) calculation of his sentence. Doc. 1. Petitioner alleges the BOP's “Designation, Sentencing and Computation Center” has incorrectly applied his 2,211 good time credits towards his “full” sentence rather than his parole violator term in violation of policy and his constitutional rights. Id. at 2, 6-7. He asks that the credits “be applied to the [parole violator] term of months of release and not to the full term date” and he requests his “immediate release” from custody. Id. at 7. United States District Judge Jodi W. Dishman has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
Citations to a court document are to its CM/ECF designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
The Court ordered a response and Respondent moved to dismiss the petition under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Doc. 13. Respondent argues that dismissal is required because Petitioner has named an improper Respondent, and he fails to state a claim because the BOP has properly applied his good time credits to his parole violator sentence. Id. at 412. Petitioner replied to the motion claiming FCI El Reno's warden denied his grievance and his claim has merit because BOP should have applied his 2,211 good time credits to the abbreviated 144-month sentence he allegedly received during his parole revocation hearing. Doc 15, at 2; see also Doc. 1, Att. 1, at 1. The Court should deny the petition as meritless.
Respondent has attached several exhibits to the motion to dismiss for the Court's consideration. See Doc. 13. But the Court need not convert the motion into one for summary judgment because Petitioner has attached several documents central to his claim to his petition and other papers, and he has incorporated other documents by reference. See Docs. 1, 14, 15, 17; see also Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (holding that the exceptions to the restrictions on what the court can consider for a Rule 12(b)(6) motion are “documents that the complaint incorporates by reference,” “documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity,” and “matters of which a court may take judicial notice.” (internal citations and quotation marks omitted)).
I. Procedural history.
On June 2, 1992, the Superior Court of the District of Columbia sentenced Petitioner in Case No. F-14351-91 to a term of seven-to-twenty-five years for Possession of a Firearm During a Crime of Violence and Armed Robbery. Doc. 1, at 1; see also Doc. 13, Att. 1, at 1, 5. The BOP released Petitioner on parole from this sentence on July 13, 1998. Doc. 13, Att. 1, at 7. Upon release, Petitioner had 6,733 days (converted to eighteen years, five months, five days) remaining on his maximum twenty-five-year sentence. Doc. 1, Att. 1, at 8; Doc. 13, Att. 1, at 20.
According to Respondent, in 1997, Congress, through the “D.C. Revitalization Act,” transferred all D.C. inmates to BOP facilities and gave responsibility to the BOP to calculate and apply good time credits under the D.C. Code to all “D.C. offenders.” Doc. 16, at 2-3 (citing D.C. Code § 24-101). In response, the BOP promulgated the District of Columbia Sentence Computation Manual (“Manual”). Id. at 3. Petitioner cites the Manual and attaches a part to his petition which he argues applies to his sentence. Doc. 1, Att. 1, at 6 (citing Manual, P5880.33, Ch. 17.6).
Petitioner committed two new federal offenses while on parole and D.C. police arrested him on April 13, 2000. Doc. 13, Att. 1, at 25. The D.C. Board of Parole later issued a parole violation warrant for Petitioner based on his new criminal conduct. Id. Att. 1, at 14, 27. Petitioner was convicted and sentenced on his new criminal case. Id. at 30-31.
Once Petitioner served his sentence in his new case and was released on paper but not from custody, officials executed the outstanding parole violator warrant on August 21, 2018. Id. Att. 1, at 28, 40. Petitioner had a parole revocation hearing on December 17, 2018. Id. at 42. The United States Parole Commission issued a decision on March 6, 2019, revoking Petitioner's parole and continuing his incarceration “until the expiration of [his] sentence.” Id. at 42-43. Petitioner appealed the decision through counsel, but the National Appeals Board affirmed the Commission's decision on June 11, 2019. Id. at 50.
Petitioner's parole violator sentence was the 6,733 days he had remaining when he was released on parole in 1998. He was granted eightyeight days of credit for time served in jail between the end of his sentence in the subsequent case and the execution of the parole violator warrant. Doc. 1, Att. 1, at 8. And, because, as a D.C. offender, he was to earn ten days per month in good time credit, BOP applied 2,211 in good time credits towards his parole violator sentence which accelerated his presumptive release date to October 10, 2030, instead of October 29, 2036. Id. Att. 1, at 8-9; see also id. Att. 1, at 6 & Doc. 13, Att. 1, at 70 (policy stating that good time credits are to be awarded “based on the length of the [parole violator] term rather than on the length of the sentence from which paroled”).
See Doc. 13, Att. 1, at 67-68 (stating that a D.C. offender with a sentence of ten years or more earns “[t]en days for each month” in good time credits).
Petitioner has since had standard review hearings and based on his program participation in prison, his presumptive release date has been pushed back to October 10, 2029, conditioned upon Petitioner maintaining good institutional conduct. See Doc. 1, Att. 1, at 5, 7; Doc. 13, Att. 1, at 53.
II. This Court has jurisdiction over Petitioner's custodian, and the Court should substitute him as Respondent.
Respondent BOP asserts Petitioner has named an improper Respondent and seeks dismissal on this basis. The Court should reject this request.
“[T]he proper respondent to a habeas petition is ‘the person who has custody over [the petitioner].'” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (quoting 28 U.S.C. § 2242). Typically, this individual is “the warden of the facility where the prisoner is being held.” Id. at 435.
The BOP is housing Petitioner at FCI El Reno. Doc. 1, at 1. That facility sits within the judicial district of this Court. See 28 U.S.C. § 116(c); https://www.bop.gov/locations/institutions/ere/ (last visited Apr. 17, 2024). So this Court has jurisdiction over its warden, who is Petitioner's custodian. Rumsfeld, 542 U.S. at 435. Although Petitioner named the BOP's “DSCC” as Respondent, the Court should substitute FCI El Reno's warden as the proper Respondent as he is within the jurisdiction of this Court and has the authority to comply with any order of this Court.
III. The BOP has properly applied Petitioner's good time credits to his parole violator term as mandated for D.C. offenders.
Respondent argues the Court should deny Petitioner's request for habeas corpus relief because Petitioner is not entitled to immediate release as he asserts in his petition. Doc. 13, at 7-9. The undersigned agrees.
Petitioner's paperwork attached to his petition shows the BOP has applied 2,211 credits to his parole violator sentence of 6,773 days and given him a presumptive release date of October 10, 2029. Doc. 1, Att. 1, at 5, 8. The 6,773 days are what remained of his original sentence after he was released on parole in 1998. Id. Att. 1, at 9; Doc. 13, Att. 1, at 3, 48. The BOP has treated this remainder as his “new sentence” in applying good time credits. See Doc. 1, Att. 1, at 6 (“For the purpose of computing commutation for good conduct, the remainder of the sentence originally imposed shall be considered as a new sentence.”). So, as Respondent argues, the BOP has complied with the D.C. offender policy Petitioner cites as the basis for his claim. See Doc. 1, Att. 1, at 6; Doc. 13, at 8-9.
Petitioner asserts that the BOP has applied a “new law policy instead of applying the applicable P.S. 5880.33 correctly” in violation of the Ex Post Facto Clause. Doc. 1, at 7. But, as Petitioner's exhibits show, BOP has applied the D.C. offender policy on good time credits to his parole violator term as required. Id. Att. 1, at 8. What Petitioner disputes is the length of his actual parole violator term, rather than the BOP's application of the policy to that term. And as the Court explains, Petitioner is mistaken as to the length of his parole violator term. Cf. Richardson v. McCollum, 625 Fed.Appx. 877, 881 (10th Cir. 2015) (“Where the retroactive application of a prison policy does not actually increase the punishment for the crime, it does not give rise to an ex post facto claim.”).
In his response to the motion to dismiss, Petitioner asserts the BOP has erroneously applied his 2,211 good time credits to his “full-term expiration date and not towards the 144 month PV term.” Doc. 14, at 2; Doc. 15, at 2. He asserts he did not receive an eighteen-year plus sentence at his revocation hearing, rather he received a twelve-year parole violator sentence and, so, BOP should have applied his 2,211 good time credits to the remaining 4,380 days. Doc. 14, at 2.
In reply, Respondent asserts Petitioner has provided no documentation to support his assertion he only had to serve 144 months of his remaining term and the documents he has provided show the BOP has properly applied his credits to his actual remaining parole violator sentence of 6,733 days. Doc. 16, at 2 (citing Doc. 14, Att. 1, at 12).
In a further response, Petitioner doubles down on his assertion that his “[p]arole violator term to be served is 144 months.” Doc. 17, at 1. He attaches to this response the Parole Commission's revocation decision issued on March 6, 2019. Id. Att. 1, at 1-3. In that decision, Petitioner highlights a sentence stating that his “aggregate guideline range is 102-146 months to be served.” Id. Att. 1, at 2. But Petitioner misunderstands the decision.
The Court's review of the decision reveals the Parole Commission determined, after reviewing “all relevant factors and information,” that “a decision above the guidelines [was] warranted because [Petitioner was] a more serious risk than indicated by [his] Salient Factor Score or guideline range” because of his violent behavior. Id. Att. 1, at 2 (emphasis added). So the Commission revoked Petitioner's parole and ordered his sentence to “[c]ontinue to expiration.” Id. at 1.
The Commission did not, despite Petitioner's contrary assertion, order him to serve an abbreviated sentence within a guideline range of 102-146 months. Petitioner knew this because his counsel appealed the decision. See id. Att. 1, at 7-15. In that appeal, counsel argued that the “continue to expiration” sentence, which sentence counsel asserted fell outside both the guidelines and the hearing examiner's recommendation, was not supported by the Commission's “reasons or facts” in its decision. Id. at 11. But the National Board of Appeals denied these grounds for appeal and affirmed the Commission's decision on June 11, 2019. Doc. 13, Att. 1, at 50-51. What remained then was the 6,733 days Petitioner had not served before he was paroled in 1998. And, in revoking Petitioner's parole, the Commission ordered this remaining parole violator term to “[c]ontinue to expiration.” So the BOP has properly applied Petitioner's 2,211 good time credits to his parole violator term in accordance with applicable policy. Petitioner is thus not entitled to habeas corpus relief.
IV. Recommendation and notice of right to object.
For these reasons, the undersigned recommends that the Court deny Petitioner's § 2241 habeas petition.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before June 4, 2024, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises Petitioner that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in the captioned matter.
ENTERED.