Opinion
Civil Action No. 4:04-CV-0005-Y.
April 12, 2004
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:
I. 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 Johnny Contreras, Reg. 88762-079, is a federal prisoner incarcerated in the Federal Medical Center, Fort Worth, Texas.
Respondent L.E. Fleming is Warden of the Federal Medical Center, Fort Worth, Texas.
C. PROCEDURAL HISTORY
Contreras was charged with conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 814 and 846. (Resp't Appendix at 1.) The offense level was increased by two levels for possession of a firearm because a firearm was found in the possession of Contreras's co-conspirator, Angelo Ibarra, at the time of Ibarra's arrest. (Id. at 17.) On February 5, 2002, Contreras pleaded guilty to the charged offense and was sentenced to 30 months' imprisonment. (Id. at 6.) At the time of sentencing, the trial court recommended that Contreras receive drug abuse treatment while in prison. (Id. at 6.) Contreras is presently serving his sentence and expected to be released with good conduct time on February 27, 2005. (Id. at 1.)Contreras filed the instant petition for writ of habeas corpus in the United States District Court for the Northern District, Fort Worth Division, on December 31, 2003. The government has filed a response and motion to dismiss the petition with supporting documentary exhibits. (Resp't Response, Motion to Dismiss, and Appendix.) Contreras filed a reply. (Pet'r Reply.) By way of the petition, Contreras seeks early release under 18 U.S.C. § 3621(e) for successfully completing the residential portion of a drug abuse treatment program (DAP Program) during his incarceration. Both before and during his participation in the DAP Program, however, Contreras was informed by the Federal Bureau of Prisons (the Bureau) that he was not provisionally eligible for an early release because he had a two-point firearm enhancement listed on his presentence investigation report (PSI). (Id. at 2-3.)
D. ISSUES
Contreras argues that disqualifying him from early release consideration violates his due process rights because "there was never an adjudication of guilt on the gun." (Petition at 2.) He rests this argument on the fact that Ibarra, who "skipped bail," was never convicted of the crime and the fact that the trial court in his case did not resolve the issue, which was disputed by Contreras, at his sentencing. (Id. at 3-4; Pet'r Reply at 2-3.)
E. DISCUSSION
Title 18 U.S.C. § 3621(e)(2)(B) allows the Bureau to reduce the sentence of a prisoner convicted of a nonviolent felony offense by up to one year upon successful completion of a drug abuse treatment program. 18 U.S.C. § 3621(e)(2)(B); see also 28 C.F.R. § 550.50-550.60. The Bureau is afforded considerable discretion to determine which prisoners may participate in the treatment programs and which prisoners are eligible for sentence reductions. See Lopez v. Davis, 531 U.S. 230, 231 (2001); Wottlin v. Fleming, 136 F.3d 1032, 1035 (5th Cir. 1998); Venegas v. Henman, 126 F.3d 760, 762 (5th Cir. 1997). 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 Program Statement 5162.04, the Bureau also delineated offenses "with a specific offense characteristic enhancement" that, at the Bureau's discretion, precluded early release eligibility under § 3621(e). Those offenses include 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 Appendix at 38-41.)
It is well settled that as a matter of due process there is no constitutionally protected right of a convicted person to early release under § 3621(e). Rublee v. Fleming, 160 F.3d 213, 215-17 (5th Cir. 1998); Wottlin, 136 F.3d at 1036; Venegas, 126 F.3d at 765. Disqualifying Contreras was a valid exercise of the Bureau's broad discretion under the statute, regulation, and program statement. See Lopez, 531 U.S. at 238-44; 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). Consequently, Contreras is not entitled to habeas corpus relief.
II. RECOMMENDATION
The government's motion to dismiss should be granted to the extent that Contreras's petition for writ of habeas corpus be denied.
III. 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 in the United States District Court 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 extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 3, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 3, 2004, to serve and file 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.