Opinion
Civil Action No. 4:01-CV-959-A.
May 6, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Michael Eugene Tasby, Reg. No. 24706-077, is a federal prisoner incarcerated in the Federal Correctional Institute, Seagoville, Texas.
Respondent is Sam L. Pratt, Warden of the Federal Correctional Institute Seagoville, Texas.
C. PROCEDURAL HISTORY
Tasby was convicted in Case No. 4:93-CR-101-E in the United States District Court for the Northern District of Texas on one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and one count of use of a firearm in connection with drug trafficking in violation of 18 U.S.C. § 924(c). (Resp't App. to Br. in Support of Mtn. to Dismiss at 1-5.) He was originally sentenced on both counts, and he continues to serve his sentence for the possession offense. ( Id.) His conviction for use of a firearm was vacated on June 16, 1997. ( Id. at 6-10.)
Apparently, sometime in mid-2001, the Federal Bureau of Prisons (Bureau) notified Tasby that he was eligible for a sentence reduction pursuant to 18 U.S.C. § 3621(e), upon successful completion of a substance abuse treatment program, and it scheduled Tasby's transfer to a residential substance abuse treatment program for October 11, 2001. (Pet. at App. IV, V.) On September 21, 2001, however, Tasby was informed that he was not eligible for early release for the following reason: "Inmate had a 924c conviction that had been (vacated), therefore, presuming an enhancement for firearms on instant offense." ( Id. at App. VI.) Tasby submitted a Request for Administrative Remedy to the warden appealing the denial of early release credit. ( Id. at VII.) On October 16, 2001, Warden Pratt denied Tasby's request for relief. ( Id.)
Tasby filed the instant petition for writ of habeas corpus with supporting documentary exhibits in the United States District Court, Northern Division, on November 19, 2001. The Government has filed a motion to dismiss the petition with supporting brief and documentary exhibits.
D. ISSUES
Tasby alleges (1) that the Bureau determined improperly that he is ineligible for early release under § 3621(e), (2) that promissory estoppel prohibits the Bureau from denying him early release under § 3621(e), and (3) that the Bureau's Program Statement No. 5162.04 is an invalid legislative rule. (Pet. at 8-13.)
E. EXHAUSTION
As a preliminary matter, the Respondent asserts that the petition should be dismissed because Tasby has failed to exhaust his administrative remedies. Federal prisoners are required to exhaust available administrative remedies through the Bureau before seeking extraordinary relief in federal courts. See Rourke v. Thompson, 11 F.3d 47, 50 (5th Cir. 1993). An administrative remedy procedure for federal prisoners is provided at 28 C.F.R. § 542.10-542.19. It is a three-level process. The administrative remedy process is begun by filing a Request for Administrative Remedy at the institution where the inmate is incarcerated. (Resp't App. at 11-12.) If the inmate's complaint is denied at the institution level, the inmate may appeal by filing a Regional Administrative Remedy Appeal with the Regional Office for the geographic region in which the inmate's institution of confinement is located. ( Id.) This is the second step of the process. ( Id.) If the Regional Office denies relief, the inmate can appeal to the Bureau of Prison's Office of General Counsel via a Central Office Administrative Remedy Appeal. ( Id.) This is the third and final step of the process. ( Id.) Administrative remedies have not been exhausted until the inmate's claim has been filed at all levels and has been denied at all levels. See 28 C.F.R. § 542.15; Rourke, 11 F.3d at 49.
In support of its assertion that this petition should be dismissed for lack of exhaustion of administrative remedies, the government has submitted the affidavit of Darrin C. Scott, Senior Litigation Counsel employed by the United States Department of Justice, Federal Bureau of Prisons. (Resp't App. at 11-12.) Affiant Scott, by way of his employment, has access to computerized inmate records filed by federal inmates to exhaust their administrative remedies. ( Id. at 11.) Scott avers in his affidavit that review of the computerized administrative remedy records maintained by the Bureau reveals that Tasby has not exhausted the administrative remedy process relevant to his claims. ( Id. at 12.)
Tasby admits that he did not pursue his administrative remedies beyond the first step of the administrative remedy process. (Pet. at 6.) He argues, however, that he should not be required to submit further appeals because of the "delaying and obfuscatory tactics utilized by the [Bureau]" and because any such appeals would be futile in light of the Bureau's policy regarding eligibility for early release under the circumstances of his case. (Pet'r Mem. Br. in Support at 2.)
Tasby argues, in the alternative, that the exhaustion requirement does not apply to a § 2241 proceeding. (Pet. at 7.) This contention is clearly incorrect. See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994); Rourke, 11 F.3d at 49.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), exhaustion is not required where the available administrative remedies either are unavailable or inadequate, or where the attempt to exhaust such remedies would be futile. Fuller, 11 F.3d at 62. The purpose of exhaustion is to permit the federal agency being challenged to correct its own error without court intervention. Smith v. Thompson, 937 F.2d 217, 219 (5th Cir. 1991). However, where, as here, the Bureau has adopted the policy and instructed its staff in the form of a Program Statement that inmates are ineligible for early release under the circumstances of this case, the court finds that presentation of Tasby's claims to the Bureau at the regional and national levels would, in fact, be futile. See Stewart v. Tombone, No. 3:97-CV-0129-BC, 1998 WL 158657, at *2 (N.D. Tex. Mar. 24, 1998). Adherence to the exhaustion requirement in this case would serve no purpose other than delay. Thus, the court will address Tasby's claims on the merits.
The government disagrees with the conclusion reached in Stewart regarding the exhaustion requirement in this context. It has not, however, persuaded this court to reconsider the issue in light of the reasons detailed in its brief. (Resp't Br. in Support at 2-7.)
F. Discussion
In his first claim, Tasby contends the Bureau improperly determined that he is ineligible for early release under 18 U.S.C. § 3621(e). Section 3621(e) allows the Bureau to reduce the sentence of a prisoner convicted of a nonviolent felony offense upon successful completion of a substance abuse treatment program. The sentence of an eligible prisoner may be reduced pursuant to the provision by up to one year. 18 U.S.C. § 3621(e)(2)(B). The enabling statute gives the Bureau considerable discretion to determine which prisoners may participate in the treatment programs and which prisoners are eligible for sentence reductions. Venegas v. Henman, 126 F.3d 760, 762 (5th Cir. 1997), cert. denied, 523 U.S. 1108 (1998).
Toward that end, the Bureau published regulations and policies categorically excluding prisoners from consideration for early release if the current offense is a felony that involved the carrying, possession, or use of a firearm. 28 C.F.R. § 550.58(a)(1)(vi)(B). By way of a program statement, the Bureau further delineated, as "crimes of violence" for purposes of denying early release eligibility under § 3621(e), a § 924(c) conviction or a drug trafficking conviction under 21 U.S.C. § 841 if the offender received a two-level sentence enhancement under the sentencing guidelines for possessing a dangerous weapon during commission of the offense. (Resp't App. at 35-55.)
Following the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995), interpreting the term "use" of a firearm as it appears in 18 U.S.C. § 924(c), many § 924(c) convictions were vacated. Consequently, the Bureau issued Program Statement No. 5162.04 providing, in relevant part:
In some cases, an inmate may be convicted of an offense listed in [ 21 U.S.C. § 841] as well as 18 U.S.C. § 924(c)(1), use of a firearm during a crime of violence or drug trafficking crime. According to the U.S. Sentencing Guidelines, if a defendant receives a § 924(c)(1) conviction, the court may not assess a two-level "Specific Offense Characteristic" enhancement for possession of a firearm; however, in light of the Supreme Court ruling in Bailey v. U.S., 116 S.Ct. 501 (1995), a number of § 924(c)(1) convictions have been vacated. In Bailey, the Court held that the term "use" connotes an active employment of the firearm. If any of the offenses listed in this section were accompanied by a § 924(c)(1) conviction that was subsequently vacated due to the Bailey decision, staff shall presume that the inmate would have received a two-level "Specific Offense Characteristic" enhancement for possession of a firearm unless there is a specific court order to the contrary. Thus, absent a court order specifically denying the application of a two-point enhancement for possession of a firearm, the inmate will not receive certain Bureau program benefits. (Resp't App. at 46.)
In the instant case, Tasby acknowledges that at the time of his original sentencing the sentencing court was precluded as a matter of law from both enhancing his sentence and sentencing him under § 924(c) for possession of a firearm. (Pet. at 9) He points out, however, that at the time his § 924(c) conviction was vacated, the government could have, but did not, seek an enhanced sentence, and the sentencing court made no determination regarding an enhanced sentence. (Pet. at 9; Pet'r Mem. Br. in Support at 3.) Tasby urges that the Bureau's policy requiring a finding by the sentencing court that a fact did not occur and then to issue an order to that effect, is "patently absurd" and amounts to "sentencing in the negative." (Pet'r Mem. Br. in Support at 4.) He further urges that the Program Statement's "presumption" of an enhanced sentence is a rebuttable presumption, which is rebutted in this case by the fact that the sentencing court did not order an enhanced sentence and he did not receive an enhanced sentence for possession of a firearm. (Pet. at 10.)
Initially, the court notes that Tasby cites to no authority in support of his position under this claim. Secondly, the court concludes that the decision to exclude such prisoners as Tasby from consideration for early release is a valid exercise of the Bureau's discretion. See, e.g., Lopez v. Davis, 531 U.S. 230, 238-41 (2001); Warren v. Miles, 230 F.3d 688, 693-94 (5th Cir. 2000); Venegas, 126 F.3d at 762-64; Cadena v. Tombone, 11 F. Supp.2d 889, 892-93 (E.D. Tex. 1998); Scruggs v. Malisham, No. 4:00-CV-1516-Y, 2001 WL 1143147 (N.D. Tex. Sept. 24, 2001). The bureau's internal agency guidelines in the form of program statements are entitled to some deference and will be upheld if they constitute a permissible construction of the statute that they interpret. Lopez, 531 U.S. at 237; Reno v. Koray, 515 U.S. 50, 61 (1995); Royal v. Tombone, 141 F.3d 596, 600 (5th Cir. 1998). Where a prisoner has a drug trafficking conviction and an attendant § 924(c) conviction that was vacated post-Bailey, the Bureau's policy to presume a two-level sentence enhancement for possession of a firearm in defining what constitutes a violent crime is a permissible interpretation of § 3621(e). See Venegas, 126 F.3d at 763-65. Further support for the reasonableness of the Bureau's policy is found in 28 C.F.R. § 550.58(a)(1)(vi)(B), which specifically excludes prisoners from eligibility for early release if their current offense is a felony that involved the carrying, possession, or use of a firearm. See Lopez, 531 U.S. at 230 (upholding validity of § 550.58(a)(1)(vi)(B) as a permissible exercise of Bureau's discretion under § 3621(e)(2)(B)).
Finally, even if a prisoner meets the prerequisites of § 3621(e), the Bureau may, but also may not, reduce his term of imprisonment based on other early release criteria, such as offense conduct involving firearms, which presents a risk of violence. Lopez, 531 U.S. at 241-43; Venegas, 126 F.3d at 764-65. [A]n inmate's prior involvement with firearms in connection with the commission of a felony, suggests his readiness to resort to life endangering violence and therefore appropriately determines the early release decision. Lopez, 531 U.S. at 244. Thus, because Tasby's drug offense involved possession of a firearm, the Bureau properly denied Tasby early release under the circumstances of this case.
In his second ground, Tasby contends that because the Bureau originally granted him early release, resulting in an expectation of early release, promissory estoppel prevents the Bureau from reversing its position regarding his eligibility for early release under § 3621(e). (Pet. at 11-12.) Tasby, however, fails to cite to any authority directly supporting his claim, and this court has found none. Further, although the Bureau's initial erroneous grant of eligibility to Tasby may have given him false hope of early release, there is no constitutionally protected right of a convicted person to early release under § 3621(e). Wottlin v. Fleming, 136 F.3d 1032, 1036 (5th Cir. 1998); Venegas, 126 F.3d at 765; Stewart, 1998 WL 158657, at *3; see also Zacher v. Tippy, 202 F.3d 1039, 1045 (8th Cir. 2000). Moreover, because Tasby was not an eligible candidate for early release, he never had a legitimate liberty interest in the sentence reduction that he now seeks. Royal, 141 F.3d at 603.
Finally, in his third ground, Tasby contends Program Statement No. 5162.04 is an invalid legislative rule that was not promulgated in accordance with the Administrative Procedure Acts (APA), requiring notice and comment. (Pet. at 12-13.) 5 U.S.C. § 552. Program statements, however, are "interpretive rules" promulgated internally by the Bureau that do not require notice and comment. Royal, 141 F.3d at 600.
RECOMMENDATION
Based on the foregoing discussion, it is recommended that the government's motion to dismiss be denied and that Tasby's petition for writ of habeas corpus be denied.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until May 27, 2002. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until May 27, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.