Opinion
2:11CV00078 JMM/JTR
08-30-2012
MARIO M. CONRAD REG. #07996-025 PETITIONER v. T.C. OUTLAW, Warden, FCC Forrest City RESPONDENT
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge James M. Moody. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:
1. Why the record made before the Magistrate Judge is inadequate.From this submission, the United States District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.
Mail your objections and "Statement of Necessity" to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A 149
Little Rock, AR 72201-3325
I. Background
On April 22, 2011, while serving a 63-month sentence at the Federal Correctional Complex in Forrest City, Arkansas, Petitioner initiated this § 2241 habeas action. (Docket entry #1). In his Petition, he alleges that the Bureau of Prisons ("BOP") violated the Second Chance Act when it recommend him for 91 to 120 months of Residential Re-entry Center ("RRC") placement instead of the twelve months of RRC placement that he requested. Id.
Respondent argues that Petitioner failed to exhaust his administrative remedies and that the Second Chance Act does not entitle Petitioner to twelve months of RRC placement. (Docket entry #12).
For the reasons discussed below, the Court concludes that Petitioner's habeas claim is moot.
II. Discussion
The record reflects that Petitioner's habeas claim was mooted on August 14, 2012, when he was moved from FCC Forest City to a RRC in St. Louis, Missouri. See Ex. A attached hereto.
In any event, Petitioner's habeas claim is without merit. Petitioner's administrative documentation reflects that he underwent a RRC assessment on August 15, 2011. Id. Importantly, there is nothing in the applicable statutes or case law that entitles a prisoner to RRC placement for a particular period of time, much less for 12 months. Rather, Respondent's duty is to individually consider a prisoner for RRC placement pursuant to the statutory factors set forth in § 3621(b). Although Petitioner was only recommended for 91 to 120 days of RRC placement, it appears that the BOP's decision was based on its individual consideration of the factors identified in 18 U.S.C. § 3621(b).
In deciding where an inmate is to be imprisoned, the BOP must consider the statutory factors set forth in 18 U.S.C. § 3621(b). The BOP is also required by statute to ensure, "to the extent practicable," that a prisoner spends "a portion" of the final months of his prison term under conditions that afford him a "reasonable opportunity" to prepare for reentry into the community. 18 U.S.C. § 3624(c)(1).
In April of 2008, Congress enacted the Second Chance Act. Among other things, the Second Chance Act amended 18 U.S.C. § 3624 to extend the maximum allowable RRC placement from 6 months to 12 months. See Second Chance Act § 251, 122 Stat. 657, 692 (2008). The BOP later enacted guidelines which specified that placement in a RRC for more than 180 days was "highly unusual" and allowable only with "extraordinary justification." See BOP Program Statement 7310.04.
In Miller v. Whitehead, 527 F.3d 752 (8th Cir. 2008), the Court held that the BOP's guidelines reflected a permissible determination that "ordinarily a placement of more than 180 days is not appropriate under § 3621(b)," and that "a particular inmate still has an opportunity to show that in the individual circumstances of his case, a longer placement would be justified." Miller, 527 F.3d at 758.
Petitioner also points to a portion of the Second Chance Act which permits the BOP to offer "[i]ncentives for a prisoner who participates in reentry and skills development programs which may, at the discretion of the [BOP] Director," include "the maximum allowable period in a community confinement facility[.]" 42 U.S.C. § 17541(a)(2)(A). According to Petitioner, he is entitled to 12 months of RRC placement because he participated in a BOP "skills development program" and due to his "educational and religious achievements." However, "[m]aking extended communitybased placement a possible incentive for participation in these programs in no way displaces the BOP's broad discretion regarding housing designations." Sessel v. Outlaw, 2009 WL 1850331, *5 (E.D. Ark. 2009) (unpublished) (rejecting argument that a prisoner's participation in a "skills development program" required 12 months of RRC placement).
III. Conclusion
IT IS THEREFORE RECOMMENDED THAT the Petition for Habeas Corpus under 28 U.S.C. § 2241 (docket entry #1) be DENIED, and the case be DISMISSED, WITH PREJUDICE.
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UNITED STATES MAGISTRATE JUDGE