Opinion
No. CV-19-04842-PHX-SRB (JZB)
02-13-2020
Calvin James, Petitioner, v. Bureau of Prisons, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:
Petitioner Calvin James has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.)
I. Summary of Conclusion.
Petitioner is currently serving a term of 210 months of imprisonment after his conviction on one count of bank robbery in violation of 18 U.S.C. § 2113(a). Petitioner seeks an early release under 18 U.S.C. § 3621(e), a provision allowing the Federal Bureau of Prisons (BOP) to grant up to one year's worth of sentence credit to inmates who successfully complete the BOP's Residential Drug Abuse Treatment Program (RDAP). Because Ninth Circuit precedent forecloses review of a decision to deny a sentence reduction to a specific inmate who completes the RDAP, the Court lacks subject-matter jurisdiction over Petitioner's claims. Further, because Petitioner's current conviction is for a crime of violence as recognized by BOP regulations and Ninth Circuit caselaw, he is categorically ineligible for a sentence reduction under 18 U.S.C. § 3621(e), even if the Court retained subject-matter jurisdiction. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.
II. Background.
a. Facts and Proceedings.
On June 6, 2007, Petitioner was sentenced to a term of 210 months of imprisonment for one count of bank robbery in violation of 18 U.S.C. § 2113(a). (Doc. 13-3, Attachment 3, at 2.) Petitioner's projected release date is January 20, 2022. (Doc. 13-3, Attachment 1, at 1.) Petitioner is currently incarcerated at FCI Phoenix. (Doc. 13-2, Ex. A, at 1.) On January 30, 2019, Petitioner entered the RDAP at FCI Phoenix, and currently remains in the program. (Doc. 13-3, Attachment 7, at 1.)
b. Administrative Appeals.
On October 18, 2018, BOP personnel completed an offense review for Petitioner, concluding that he was ineligible to receive early release under 18 U.S.C. § 3621(e) due to his current offense conviction for bank robbery in violation of 18 U.S.C. § 2113(a). (Doc 13-2, Ex. A, at 6.) On November 28, 2018, Petitioner filed an Informal Resolution (BP-8) form with FCI Phoenix requesting reconsideration of his ineligibility for early release. (Doc. 1 at 28.) On December 26, 2018, Petitioner filed a Request for Administrative Remedy with BOP, arguing that BOP failed to "properly assess and screen [a] documented request" by Petitioner to enter the RDAP as early as 2008. Id. at 25. On January 10, 2019, BOP partially granted Petitioner's Request for Administrative Remedy and re-assessed his eligibility for early release, but still determined Petitioner was ineligible for early release. Id. at 23. On April 19, 2019, Petitioner filed a Regional Administrative Remedy Appeal, asserting that, as he requested consideration for the RDAP as early as 2008, the Ninth Circuit's decisions in Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009) and Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) bar the BOP from denying him early release upon successful completion of the RDAP. (Doc. 1 at 13-15.) On June 27, 2019, BOP denied Petitioner's appeal, stating that Petitioner's conviction for bank robbery rendered him ineligible for early release under BOP Program Statements 5331.02, Early Release Procedures Under 18 U.S.C. § 3621(e), and 5162.05, Categorization of Offenses. (Doc. 1 at 12.)
III. Petition for Writ of Habeas Corpus.
Petitioner filed his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 with this Court on July 26, 2019. Petitioner argues that the BOP erroneously denied him eligibility for early release, as he was "grandfathered in" to the one-year sentence credit under the Ninth Circuit's decisions in Arrington and Crickon. (Doc. 1 at 4.) Petitioner argues that the Ninth Circuit invalidated BOP's pre-2009 regulations concerning eligibility for the early release credit in 18 U.S.C. § 3621(e), and since he was incarcerated in a facility within the Ninth Circuit when the pre-2009 regulations were in effect, he is entitled to a sentence reduction of one year. Id. at 5. He concludes that the BOP violated the Ex Post Facto Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution by denying him a reduction in sentence. Id. at 4.
IV. Discussion.
a. Subject-Matter Jurisdiction.
The writ of habeas corpus affords relief to persons in custody "under or by color of the authority of the United States." 28 U.S.C. § 2241(c)(1). Authority to manage federal correctional institutions and those in the custody of the United States after conviction is delegated by Congress to the Bureau of Prisons. 18 U.S.C. § 4042(a)(1). The authority delegated to the BOP includes discretion to carry out substance abuse treatment programs. 18 U.S.C. § 3621(e)(1). Congress also exempted "any determination, decision, or order" issued by the BOP under the authority of 18 U.S.C. § 3621 from the Administrative Procedure Act's judicial review provisions. 18 U.S.C. § 3625. The Ninth Circuit concluded that, given the unambiguous nature of 18 U.S.C. § 3625, a district court lacks subject-matter jurisdiction over the denial of a sentence reduction despite completion of the RDAP. See Reeb v. Thomas, 636 F.3d 1224 (9th Cir. 2011). There, the Ninth Circuit held that "any substantive decision by the BOP to admit a particular prisoner into RDAP, or to grant or deny a sentence reduction for completion of the program, is not reviewable by the district court." Id. at 1227. Petitioner seeks an order for the BOP to "[g]rant James request for 3621(e) Early Release at the completion of RDAP." (Doc. 1 at 9.) This Petition, if granted, would order a sentence reduction for a particular prisoner's completion of the RDAP, in clear contravention of Reeb. Accordingly, the Court lacks subject-matter jurisdiction to consider the Petition.
See also Schulze v. Fed. Bureau of Prisons, 2019 WL 7038254, at *2 (D. Haw. Dec. 20, 2019) ("federal courts lack jurisdiction to review the BOP's . . . determinations made pursuant to 18 U.S.C. § 3621.") (citing Reeb, 636 F.3d at 1227-28); Cislo v. Salazar, 2019 WL 3416685, at *1 (D. Or. June 10, 2019) ("[t]his Court lacks jurisdiction to revisit individualized RDAP determinations made pursuant to 18 U.S.C. § 3621.") (citing Reeb, 636 F.3d at 1227-28), report and recommendation adopted, 2019 WL 3414387 (D. Or. July 26, 2019); Johnson v. Lemaster, 2019 WL 3035121, at *2 (C.D. Cal. Apr. 17, 2019) (same), report and recommendation adopted, 2019 WL 3841792 (C.D. Cal. Aug. 15, 2019).
b. Eligibility for Early Release.
Assuming arguendo that Petitioner raised a reviewable claim, Petitioner is nevertheless not entitled to the relief he seeks. A prisoner convicted of a violent offense is ineligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B). See also Lopez v. Davis, 531 U.S. 230, 238 (2001) ("[18 U.S.C. § 3621(e)(2)(B)] categorically denies early release eligibility to inmates convicted of violent offenses."). BOP regulations prohibit early release for inmates with a current felony conviction for "an offense that has as an element, the actual, attempted, or threatened use of physical force against the person or property of another." 28 C.F.R. § 550.55(b)(5)(i). A violation of 18 U.S.C. § 2113(a) is considered a violent offense requiring the actual, attempted, or threatened use of physical force. United States v. Watson, 881 F.3d 782, 784-86 (9th Cir. 2018); Furguiel v. Benov, 155 F.3d 1046, 1047 (9th Cir. 1998).
A claim that the Bureau of Prisons exceeded its statutory authority is reviewable. See Close v. Thomas, 653 F.3d 970, 974 (9th Cir. 2011) (Petitions that "allege that the BOP action is contrary to . . . its statutory authority" are "within [our] jurisdiction.") (quotations and citation omitted); Abbott v. Federal Bureau of Prisons, 771 F.3d 512, 514 (9th Cir. 2014) (reversing decision based on lack of jurisdiction when petitioner made "a categorical challenge to the BOP's interpretation of its own regulation, which is not foreclosed from review.").
Neither Crickon nor Arrington support Petitioner's position. The Ninth Circuit in Arrington rejected only the BOP's decision "to categorically exclude prisoners convicted of offenses involving the carrying, possession, or use of firearms from eligibility for a sentence reduction under 3621(e)." Id. at 1114. Petitioner was not convicted of any of those offenses. Crickon is also distinguishable. In that case, the Ninth Circuit faulted the BOP for providing "no explanation for its decision to look to prior convictions as the appropriate basis to determine categorical exclusions." Id. at 984 (emphasis added). That is not the same as denying early release to an inmate who successfully completed the RDAP while currently serving a sentence for committing a crime of violence. Here, Petitioner is serving a sentence for bank robbery, which, as explained above, is considered a "crime of violence" under BOP regulations and Ninth Circuit caselaw. See Watson, 881 F.3d at 786 (affirming that bank robbery is a crime of violence) cert. denied, 139 S. Ct. 203 (2018). Therefore, Crickon would not have prevented the BOP from determining Petitioner was ineligible for early release under section 3621(e), even assuming as true Petitioner's argument that he did express interest in participation in the RDAP prior to the BOP's adoption of the current version of 28 C.F.R. § 550.55(b)(5).
Petitioner's remaining arguments that the BOP's re-review of his Administrative Remedy violated his due process and equal protection rights are also unavailing. As the Ninth Circuit has explained, a violation of the right to due process under the Fifth Amendment requires that the petitioner have a "protected liberty interest" in RDAP participation or early release, which Petitioner does not possess. Jacks v. Crabtree, 114 F.3d 983, 986 n.4 (9th Cir. 1997) (rejecting a claim that existence of a drug treatment program "creates a due process liberty interest in the one-year sentence reduction"). See also Reeb at 1229 n.4 (finding petitioner "cannot prevail on his due process claim because inmates do not have a protected liberty interest in either RDAP participation or in the associated discretionary early release benefit."). A violation of a petitioner's right to equal protection under the Fourteenth Amendment requires that a petitioner provide evidence that similarly situated individuals have been treated differently in the BOP's administration of the RDAP or the early release provision of 18 U.S.C. § 3621(e)(2)(B), which Petitioner has not provided. McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999). Finally, the Ex Post Facto Clause of the Constitution does not bar the BOP from refusing to grant a sentence reduction, as declining to exercise a discretionary right to reduce Petitioner's sentence does not result in "a sufficient risk of increasing the measure of punishment attached to the covered crimes." California Dep't. of Corrections v. Morales, 514 U.S. 499, 509 (1995).
V. Conclusion.
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that it lacks subject-matter jurisdiction to hear Petitioner's claims, and that in the alternative, Petitioner is not entitled to the relief he seeks. The Court will therefore recommend that the Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
The Court need not address whether a Certificate of Appealability should issue. See Forde v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9th Cir. 1997).
Dated this 13th day of February, 2020.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge