Opinion
Civil Action 6:23-cv-2751-TMC-KFM
04-22-2024
Rene Benitez, Petitioner, v. Warden Edgefield Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This matter is before the court on the respondent's motion to dismiss or, in the alternative, for summary judgment (doc. 21). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district court.
FACTS PRESENTED
Underlying Case Facts
The petitioner is currently serving a life sentence for conspiracy to kill Drug Enforcement Administration (“DEA”) agents, use of a dangerous weapon to assault DEA agents, and robbing a DEA agent of personal property belonging to the United States. He is currently incarcerated at Federal Correctional Institution (“FCI”) Edgefield in Edgefield, South Carolina. The petitioner's life sentence stems from a 1982 attack on two DEA agents, Kelly McCullough and Charles Martinez, who had traveled to Cartagena, Colombia to identify and photograph ships possibly carrying drugs. United States v. Benitez, 741 F.2d 1312, 1313 (11th Cir. 1984). Agents Martinez and McCullough entered Colombia carrying official United States government passports, and the Colombian government was aware of and approved of their presence in Colombia. Id. The DEA received information that the petitioner, then a fugitive, was staying at the same hotel as the agents. Id. Agent Martinez went to the hotel manager's office and spoke to a man named Mr. Lazaro. Agent Martinez identified himself as a DEA agent, showed Mr. Lazaro his DEA identification and official United States passport, and asked about the petitioner's whereabouts. Id. Mr. Lazaro did not provide Agent Martinez with any information concerning the petitioner. Id.
On February 10, 1982, the petitioner and his co-defendants knocked on Agent Martinez's door and identified themselves as police. Id. at 1314. When Agent Martinez asked to see identification, the petitioner said “open the door or we will shoot it down.” Id. Jose Duarte, one of the co-defendants, slid a Colombian National Police identification card under Agent Martinez's door. After the petitioner and the co-defendants entered Agent Martinez's room, the petitioner identified himself to Agent Martinez as Rene Benitez. Id. Codefendant Armando Benitez, the petitioner's brother, searched Agent McCullough's room, found his DEA credentials, official passport, and personal passport, gave the credentials to the petitioner to inspect, and informed the petitioner “these are the guys. They are both DEA agents.” Id.
The petitioner and co-defendants removed the agents from the hotel room at gunpoint and told them to get into a car waiting at the hotel. The agents were told that they were going to the police station. Id. at 1315. During the drive, the petitioner held his gun on Agent Martinez and asked him what he was doing in Colombia. Agent Martinez replied that he was assigned to the United States Embassy as a pilot and tasked to obtain information on ships smuggling marijuana. Id. The petitioner told Agent Martinez that he did not appreciate Americans getting into their marijuana business and shot Agent Martinez in the right hip. Id. Agent Martinez asked to be taken to the hospital, and the petitioner and Duarte assured him that they would take him. However, the car drove past the hospital and did not stop until they reached an isolated, wooded area. Id.
When Agent Martinez got out of the car, the petitioner pointed his gun to Agent Martinez's head. Agent Martinez fell back into his seat, and the petitioner shot him in his shoulder. Id. The petitioner pulled the trigger again, but the gun did not fire. Id. Agent Martinez rushed at the petitioner and managed to run into the woods where he hid overnight. Id. While Agent Martinez struggled with the petitioner, Agent McCullough attempted and failed to take Duarte's gun. Agent McCullough tried to run away, but Duarte shot him in his knee, hip, and neck and left him to help the petitioner find Agent Martinez. Id.
The following morning, Agent Martinez stopped a vehicle that took him to the Colombian naval hospital in Cartagena. Id. Agent McCullough found his way to a church. A priest, doctor, and police officer went with him to the scene of the crime to search for Agent Martinez. Id. When Agent McCullough saw the petitioner there, the petitioner reached for his gun. The police officer stopped the petitioner but did not arrest him. Id. Agent McCullough made his way to Cartagena where he and Agent Martinez were airlifted to the United States Military Hospital in Panama. Id.
Extradition and Conviction
Colombia extradited the petitioner to the United States on February 14, 1986.
On June 26, 1987, the United States District Court for the Southern District of Florida sentenced the petitioner to fifteen years in prison and fifteen years special parole for conspiracy to import cocaine, importation of marijuana, and conspiracy to possess marijuana with intent to distribute and distribution of marijuana (see doc. 21-1, BOP sentence monitoring comp. data). The United States Parole Commission (“Commission”) released the petitioner to his special parole term on October 7, 1994 (doc. 21-2, parole form I-33, p. 1). However, on December 1, 1994, less than two months into his special parole term, the petitioner absconded parole and returned to Colombia. On January 3, 1995, the Commission issued a parole violation warrant based upon the petitioner's latest parole violations (doc. 21-3, warrant & warrant app.). The petitioner remained in Colombia until his extradition back to the United States in October 1995.
On March 28, 1996, the United States District Court for the Southern District of Florida sentenced the petitioner to eighteen years for conspiracy to possess cocaine with intent to distribute, possession of cocaine with intent to distribute, and use of a communication facility in the commission of a felony (Case No. 77-437-CR-JLK) (see doc. 21-1, BOP sentence monitoring comp. data; doc. 21-9, crim. docket report).
On June 8, 2001, the United States District Court for the Southern District of Florida sentenced the petitioner to life for conspiracy to kill a DEA agent, using a dangerous weapon to assault a DEA agent, and robbing a DEA agent of personal property belonging to the United States (Case No. 82-291-01) (doc. 21-1, BOP sentence monitoring computation data, p. 2). The Federal Bureau of Prisons (“BOP”) established the petitioner's two-thirds parole date as June 22, 2022 (id., p. 7).
2018 Institutional Offense
Until 2018, the petitioner had minimal institutional offenses (doc. 21-8, chronological disciplinary record). However, on May 31, 2018, while assigned to the UNICOR work detail, the petitioner saw another prisoner with an unauthorized tool (doc. 215, DHO findings). The petitioner confronted the prisoner, who called the petitioner “police” (id.). The petitioner lunged at the prisoner, shouted, “I will kill you, you don't call me police,” and stabbed the prisoner in the arm with a screwdriver (doc. 21-4, incident report, p. 1; doc. 21-5, DHO findings). On June 7, 2018, following a hearing, the petitioner was found guilty of assault with serious bodily injury (doc. 21-5, DHO findings; doc. 21-8, chronological disciplinary record).
Parole Hearing and Appeal
The petitioner had his two-thirds parole hearing on October 20, 2022 (doc. 216, notice of action, p. 1). The Commission found that the petitioner's 2018 assault with serious bodily injury was a serious violation of the rules of the institution and, combined with his statements minimizing his awareness that Agents Martinez and McCullough were DEA agents and his shooting of Agent Martinez, there was a reasonable probability that he would not obey the law if released (id.). The Commission denied the petitioner two-thirds parole and continued his incarceration to the expiration of his sentence (id.). On November 28, 2022, the petitioner appealed the Commission's decision. The National Appeals Board affirmed the Commission's decision on March 2, 2023 (doc. 21-7, appeal notice of action). The petitioner now challenges “the denial of [his] request for parole after having served two thirds '30 years' imprisonment” (doc. 1, petition, p. 2).
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
As noted, the respondent has moved to dismiss or, in the alternative, for summary judgment (doc. 21). The respondent argues that the petition should be dismissed for failure to state a claim upon which habeas relief can be granted, which is evaluated under Federal Rule of Civil Procedure 12(b)(6) (id., pp. 1, 8). “In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document “'was integral to and explicitly relied on in the complaint'” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Assn of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007))). Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d).
Rule 12 of the Rules Governing Section 2254 Cases states: “The Federal Rules of Civil Procedure, to the extent they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” See also Rule 1(b), Rules Governing Section 2254 Cases (providing that the Rules Governing Section 2254 Cases may be applied in habeas actions filed pursuant to 28 U.S.C. § 2241).
Here, the respondent has attached documents to its motion, some of which were also attached to the petition and some that were not (see docs. 21-1 through 21-9). The undersigned has considered all of the documents submitted by the respondent. As noted above, under Rule 12(b)(6), a court may in its discretion consider matters outside of the pleadings pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). However,
when, as here, the movant expressly captions its motion “in the alternative,” as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).Polastre-Jackson v. Colvin, C. A. No. ELH-17-228, 2017 WL 6501800, at *4 (D. Md. Dec. 15, 2017). The petitioner here clearly had notice that conversion under Rule 12(d) may occur as the respondent's motion was expressly captioned “in the alternative” as one for summary judgment, matters outside the pleadings were submitted, and only the summary judgment standard - rather than the Rule 12(b)(6) standard - was discussed in the respondent's briefing (doc. 21, p. 6). Further, in his response, the petitioner also cited the summary judgment standard (doc. 27, pp. 1-2) in arguing that the “motion for summary judgment should be denied” (id., p. 7). Accordingly, the undersigned will consider the respondent's motion as one for summary judgment.
Federal Rule of Civil Procedure 56 states as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
Parole Act and Two-Thirds Parole
“The Parole Act of 1976 was the product of nearly a decade of study and evaluation by the executive and legislative branches.” Wallace v. Christensen, 802 F.2d 1539, 1542 (9th Cir. 1986) (citing S. Rep. No. 94-369, at 1, 16 (1976), reprinted in 1976 U.S.C.C.A.N. 335, 338). The Parole Commission and Reorganization Act of 1976 (“Parole Act”) accomplished three principal objectives: it (1) created a United States Parole Commission to promulgate guidelines and grant or deny parole, (2) formalized procedures to govern parole determinations, and (3) established an appeals process. Id. at 1543 (citing S. Rep. No. 94-369, at 14-15). Because the Comprehensive Crime Control Act of 1984 abolished the parole system, the Parole Act applies only to prisoners who committed offenses prior to November 1, 1987. See Romano v. Luther, 816 F.2d 832, 833-37 (2d Cir. 1987).
Under 18 U.S.C. § 4206(a), if a prisoner has “substantially observed the rules of the institution” and if the Commission determines “that release would not depreciate the seriousness of [the] offense or promote disrespect for the law” and “release would not jeopardize the public welfare,” then that prisoner shall be released. 18 U.S.C. § 4206(a). Whether a prisoner will be paroled depends on the Commission's determination that the prisoner has met these criteria. See Shahid v. Crawford, 599 F.2d 666, 671 n.5 (5th Cir. 1979). In applying these criteria, the Commission considers the “nature and circumstances of the offense and the history and characteristics of the prisoner.” 18 U.S.C. § 4206(a); Garcia v. Neagle, 660 F.2d 983, 991 (4th Cir. 1981).
Federal prisoners subject to the Parole Act become eligible for two-thirds parole after having served two-thirds of each consecutive term or terms, or after serving thirty years of each consecutive term or terms of more than forty-five years including any life terms, whichever is earlier. 18 U.S.C. § 4206(d); 28 C.F.R. § 2.53(a). So-called “mandatory” two-thirds parole is not mandatory, and release is subject to exceptions. See, e.g., Dufur v. U.S. Parole Comm'n, 314 F.Supp.3d 10, 12 (D.D.C. 2018) (“This case presents the question whether mandatory parole in the federal prison system is mandatory. It is not.”), aff'd, 34 F.4th 1090 (D.C. Cir. 2022). Even if eligible for two-thirds parole, a prisoner will not be released if the Commission determines that he has “seriously or frequently violated institution rules and regulations” or that there is a “reasonable probability” the prisoner “will commit any Federal, State, or local crime.” 18 U.S.C. § 4206(d); 28 C.F.R. § 2.53(a).
Petitioner's Allegations and Analysis
The petitioner claims that the Commission's decision to deny him two-thirds parole “based on one incident, with mitigating factors, was not based on fixed rules, procedures or law. It was based on individual discretion” (doc. 1-1, petition mem., pp. 7-8). The petitioner further argues that the Commission's decision to deny parole was “an abuse of discretion,” “arbitrary and capricious,” and “irrational” (id.).
As acknowledged by the petitioner, “[j]udicial review of a decision by the Parole Commission is limited” (doc. 1-1, petition mem., p. 2). See Billiteri v. U.S. Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976) “[I]t is not the function of the courts to review the discretion of the Board in the denial of applications for parole . . . . The district court, of course, has authority to review a decision by the Board, . . . which shows an abuse of discretion on the part of the Board, resulting in an abridgement of the petitioner's constitutional rights.” (citation and internal quotation marks omitted)); Brown v. Lundgren, 528 F.2d 1050, 1054 (5th Cir. 1976) (“[A] prisoner challenging the decision of the board or the process by which that decision was reached must show that the action of the board was so unlawful as to make his custody in violation of the laws of the United States.”). “So long as there are no violations of any required due process protections and the Commission has acted within its authority, [the district court] will not usurp the Commission's position as established in the statutory scheme enacted by Congress.” Stroud v. U.S. Parole Comm'n, 668 F.2d 843, 846 (5th Cir. 1982).” The Court of Appeals for the Fourth Circuit has stated that “where the controlling statute indicates that particular agency action is committed to agency discretion, a court may review the action if there is a claim that the agency has violated constitutional, statutory, regulatory or other restrictions, but may not review agency action where the challenge is only to the decision itself.” Garcia, 660 F.2d at 988 (citation omitted)). See also Jones v. U.S. Bureau of Prisons, 903 F.2d 1178, 1184 (8th Cir. 1990) (“Such action is a substantive decision of the Commission to deny parole. Under § 4218(d), we have no jurisdiction to review this decision.”); Langella v. Anderson, 612 F.3d 938, 940 (8th Cir. 2010) (“The decision whether to grant or deny parole is one that Congress has committed to agency discretion, and we are thus barred from reviewing the Parole Commission's substantive determinations.”).
As noted, the petitioner alleges the Commission's decision to deny him parole was “not based on fixed rules, procedures or law” but, rather, was based on “individual discretion” (doc. 1-1, petition mem., p. 8). Specifically, the petitioner contends that in his thirty years of imprisonment, he had only one alleged serious rule violation; he “was in charge of tools that could be converted into deadly weapons”; another prisoner attempted to intimidate [him] to circumvent the rules”; when the petitioner refused, “an altercation occurred”; and he “was denied parole for doing the right thing and defending himself for doing so” (id., p. 4). He contends that he is approximately eighty years old, he has had an exemplary prison record for over thirty years, and the Commission's decision to deny him parole based on one rule violation “that could, arguably, be a result of self-defense” was thus arbitrary and capricious and “founded on prejudice or preference, rather than reason or fact” (id., p. 8).
When factual findings are challenged, the court's review is limited to whether there is “some evidence” in support of the Commission's decision. See Johnson v. U.S. Parole Comm'n, 419 Fed.Appx. 438, 438-39 (5th Cir. 2011) (“Because the [Commission] has absolute discretion in parole determinations, however, its conclusions are reviewed with extreme deference, reviewing them only to determine whether there is some evidence in the record to support [its] decision.” (citation and internal quotation marks omitted)). The Commission may consider the report of an institutional disciplinary hearing that a prisoner has violated disciplinary rules as “conclusive evidence of institutional misconduct.” 28 C.F.R. § 2.34(c). As argued by the respondent, the Commission considered the petitioner's entire record, including the 2018 institutional violation and his admission to assaulting another prisoner with a screwdriver, to determine whether, under 18 U.S.C. § 4206(d), the petitioner seriously or frequently violated institutional rules and regulations or whether there was a reasonable probability that he would commit any federal, state, or local crime. The Commission found the severity of the petitioner's base offense in combination with the severity and recentness of his 2018 institutional violation to be evidence of his current dangerousness as well as evidence that he would still pose a threat of committing violent acts if released (doc. 21-6, notice of action, p. 1). The petitioner was 76 years old at the time of the 2018 incident. Although advanced in age, the petitioner managed to attack and stab another prisoner in the arm with a screwdriver because the prisoner called him “police” (doc. 21-4, incident report, p. 4). The record demonstrates that the Commission found the BOP's finding of guilt and the petitioner's admission of assaulting another prisoner with a screwdriver as evidence that he seriously violated institutional rules. The Commission considered the mitigating factors addressed by the petitioner (his age and medical conditions) but found that the risk and accountability factors outweighed those factors (doc. 21-6, notice of action, p. 1). The record reflects the Commission considered the petitioner's lack of accountability and tendency to minimize his role after harming victims (id.).
Specifically, the Commission noted the petitioner in discussing his involvement in the 1982 conspiracy to kill two DEA Agents attempted to minimize the severity of his involvement and place blame on the victims for his actions (id.). Similarly, the petitioner admitted to stabbing the other inmate but attempted to minimize the severity by claiming he would not have done so if a UNICO supervisor was present (doc. 21-5, DHO findings, p. 1). Based upon the foregoing, the Commission had “some evidence” to support its finding that the petitioner seriously or frequently violated institutional rules and that there was a reasonable probability that he would not obey the law if released.
As noted above, the petitioner further asserts the Commission's denial of parole, under the totality of the facts of his case, was arbitrary and capricious, an abuse of discretion, and irrational (doc. 1-1, petition mem., p. 5). Liberally construing the petitioner's claim, he asserts the denial of parole was arbitrary and capricious because he had a clean institutional record for thirty years. Therefore, pursuant to 18 U.S.C. § 4206, the petitioner argues he substantially observed the rules of the institution (see id., p. 8).
The court in Dufur considered whether the petitioner's references to the “arbitrary and capricious” standard set forth in the Administrative Procedure Act (“APA”) allowed the petitioner to challenge the Commission's justification for denying parole. 314 F.Supp.3d at 19.
Decisions to deny parole, however, are explicitly committed by statute to the Commission's discretion, 18 U.S.C. § 4218(d) (stating that “[a]ctions of the Commission” including denying parole “shall be considered actions committed to agency discretion for purposes of [5 U.S.C. § 701]”); Bowers v. Keller, 651 F.3d 1277, 1291 (11th Cir. 2011), and they are not subject to review under the APA, Cole v. Fulwood, 879 F.Supp.2d 60, 68 (D.D.C. 2012) (holding that because “[f]or purposes of the APA, the decision to grant or deny parole is committed to the [Commission's] discretion by law ... [t]he Court ... has jurisdiction only to determine whether the Commission has violated an explicit requirement of its organic statute, its internal regulations or the Constitution, but not to review substantive decisions.”). As Dufur concedes, the Commission made the
finding called for by the statute when denying him mandatory parole. Dkt. 1 at 4-5 (Compl. ¶ 7). His challenge is to the rationale for that finding. That reasoning “is not reviewable under the APA.” Cole, 879 F.Supp.2d at 68; see also Turner v. Henman, 829 F.2d 612, 614 (7th Cir. 1987).Id. at 20. Therefore, the petitioner's challenge under the arbitrary and capricious standard fails.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the respondent's alternative motion for summary judgment (doc. 21) should be granted.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).