Opinion
NO. 3-04-CV-0873-M.
June 3, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Haywood Alexander, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be denied.
I.
Petitioner was sentenced to 168 months in prison following his convictions for distribution of a controlled substance and money laundering. While incarcerated, petitioner enrolled in a substance abuse treatment program. He completed this program and applied for early release under 18 U.S.C. § 3621(e). However, the warden determined that petitioner was not eligible for a sentence reduction because he had been convicted of an offense that involved the carrying, possession, or use of a firearm or other dangerous weapon. Petitioner simultaneously appealed that decision to the Bureau of Prisons ("BOP") and filed this action in federal court.
II.
In his sole ground for relief, petitioner argues that the decision to deny him early release under the substance abuse treatment incentive program was based on the retroactive application of a new BOP policy and violates the ex post facto clause of the United States Constitution.
The court notes that petitioner's claim is still pending before the Board of National Inmate Appeals. However, in view of the fact that petitioner clearly is not entitled to habeas relief, the court determines it would be futile for him to exhaust his administrative remedies. See McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 1087, 117 L.Ed.2d 291 (1992) (exhaustion not required when "administrative and judicial interests would counsel otherwise").
A.
Section 3621 provides, in relevant part, that "[t]he period a prisoner convicted of a non-violent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." 18 U.S.C. § 3621(e)(2)(B) (emphasis added). In 1995, the BOP promulgated regulations and policies to implement this statute. As originally issued on May 25, 1995, the regulations defined "non-violent offense" by reference to the statutory definition of "crime of violence." 28 C.F.R. § 550.59 (May 25, 1995) (prisoner not eligible for early release if current offense "is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3)"). BOP Program Statement 5330.10, also effective May 25, 1995, was essentially identical to the regulation. See BOP P.S. 5330.10 (May 25, 1995). In July 1995, the BOP clarified the meaning of "crime of violence" in the context of section 3621. Program Statement 5162.02, effective July 24, 1995, defined "crimes of violence" to include a drug trafficking conviction if the offender received a two-level sentence enhancement for possessing a dangerous weapon during the commission of the offense. See BOP P.S. 5162.02, § 9 (Jul. 24, 1995). Then, in October 1997, the BOP adopted new regulations stating that whether an offense was a "crime of violence" must be determined by the offense of conviction, not sentencing factors. See 28 C.F.R. § 550.58 (Oct. 15, 1997). The regulations further provide, however, that the BOP may, in the exercise of its discretion, deny early release under section 3621 if the inmate was convicted of a non-violent offense "that involved the carrying, possession, or use of a firearm or other dangerous weapon . . ." Id. § 550.58(a)(1)(vi)(B). BOP Program Statement 5162.04, effective October 9, 1997, provides that "[a]n inmate will be denied the benefits of certain programs if his or her offense is either a crime of violence or an offense identified at the discretion of the Director of the Bureau of Prisons." BOP P.S. 5162.04(2) (Oct. 9, 1997) (emphasis added).B.
Petitioner maintains that the law in effect in October 1994, the date his offense was committed, governs his eligibility for early release and that the retroactive application a new BOP policy violates the ex post facto clause of the United States Constitution. In order for an ex post facto violation to occur, two elements must be present: (1) a law must apply to events occurring before its enactment; and (2) the new law must create a sufficient risk of increased punishment. Warren v. Miles, 230 F.3d 688, 692 (5th Cir. 2000), citing California Dept. of Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 1603, 131 L.Ed.2d 588 (1995) and Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). The court must "rigorously analyze the level of risk that an inmate's prison stay will be longer because of a change in the law that applies retroactively." Id. (citations omitted).
In Scruggs v. Malisham, 2001 WL 1143147 (N.D. Tex. Sept. 24, 2001), another judge in this district rejected the very argument made by petitioner in this case. The prisoner in Scruggs was convicted of a drug offense in 1990. After successfully completing a substance abuse treatment program while incarcerated, the prisoner applied for a one-year sentence reduction under section 3621. In 1995, the warden determined that the prisoner was not eligible for early release because she received a two-level sentence enhancement for possessing a dangerous weapon during the commission of the offense. The BOP upheld that decision. On federal habeas review, the prisoner argued that the retroactive application of BOP Program Statement 5162.02 violated the ex post facto clause. The district court disagreed. In denying habeas relief, the court wrote:
The above-outlined applicable law indicates that Section 3621(e)(2)(B) grants the BOP broad discretion to exclude from early release consideration prisoners serving sentences for drug conspiracy that were enhanced for possession of a dangerous weapon during the course of the conspiracy. [Citation omitted]. As indicated above, at her sentencing, Scruggs received a two level enhancement for possessing weapons during the commission of the offenses. Further, while Scruggs' case might not have been explicitly excluded under the Program Statements in effect on July 10, 1995, apparently the date the BOP found her ineligible for early release, [citation omitted], merely clarifying that cases like Scruggs' should not be considered for early release under section 3621 is not a "change" that implicates the ex post facto clause protections. [Citation omitted].Id. at *4 (emphasis added).
The same reasoning applies here. Assuming that a BOP Program Statement is a "law" subject to ex post facto review, the retroactive application of Program Statements 5162.02 and 5162.04 does not place petitioner at risk of increased punishment. Rather, these policies merely clarify the law in effect by listing as an example of inmates ineligible for early release under section 3621 those serving enhanced sentences for possessing a weapon during the commission of their offenses. See Miles, 230 F.3d at 693-94. Nor does petitioner have a due process liberty interest in obtaining early release from prison. The statute provides that the BOP may reduce the sentence of a non-violent offender if he successfully completes a drug treatment program. 18 U.S.C. § 3621(e)(2)(B). Petitioner has only a limited potential interest in a sentence reduction. This is not sufficient to create a liberty interest under the due process clause. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 116 S.Ct. 1690 (1996) (loss of opportunity to earn good time credits and reduce sentence does not implicate a liberty interest); Bulger v. U.S. Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (liberty interest not created by collateral consequences of administrative decisions).
The Supreme Court has described BOP Program Statements as "internal agency guidelines" that, unlike BOP regulations, are not subject to "the rigors of the Administrative Procedure Act." Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 2027, 132 L.Ed.2d 46 (1995).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be summarily denied.