Opinion
CV 23-00839 PHX MTL (CDB)
11-07-2023
Jeffrey Alan Jordan, Petitioner, v. RA Heisner, Warden, Respondent.
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE
Petitioner Jeffrey Jordan seeks relief pursuant to 28 U.S.C. § 2241, asking the Court to order the recalculation of his sentence by the Federal Bureau of Prisons (“BOP”). Respondent filed an answer to the petition (ECF No. 10), and the time allowed Jordan to file a reply has expired.
When he filed his § 2241 petition Jordan was incarcerated at the Federal Correctional Institution (“FCI”) in Phoenix, Arizona. Per the BOP inmate information database and the information provided by Respondent on September 7, 2023, Jordan is now at a Minneapolis Residential Reentry Management (“RRM”) facility overseen by the BOP. A RRM is a program which provides federal offenders with community-based services that will assist with their reentry needs. Jordan has a statutory release date of July 18, 2025, which includes the application of good time credits; with the application of 365 days of First Step Act (“FSA”) credit, Jordan's current projected release date is July 18, 2024. (ECF No. 10-1 at 3, 13).
I. Background
In the Northern District of Iowa in October of 1999, a jury found Jordan guilty of attempt and conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). On August 31, 2000, Jordan was sentenced to a term of 384 months incarceration; Jordan's offense level included a two-point enhancement for the use of a firearm in the commission of a drug offense. (ECF No. 10-1 at 3. See also United States v. Jordan, CR No. 98-00011(4) (N.D. Iowa), ECF No. 351; ECF No. 520 at 1, 3 (“the Court ... added two points for a gun enhancement because Jordan bartered the guns for drugs.”)).
In his § 2241 petition Jordan asserts the BOP violated his due process rights by electing to exclude him from eligibility for early release pursuant to the Residential Drug Abuse Program (“RDAP”). Jordan notes he was sentenced in August of 2000, and implies he was eligible for early release per RDAP, but he has been denied early release because of a “policy change that became effective May 26, 2016.” (ECF No. 1 at 4). Jordan contends the “policy change is not retroactive for an enhancement at sentencing on an offense that was committed in 1998. This new policy just became effective in 2016 and should not be used against me while I was sentenced in Aug. 2000 and indicted in 1998.” (Id.). Jordan asks the Court to “restore” his eligibility for early release pursuant to 18 U.S.C. § 3621(e) (i.e., RDAP). (ECF No. 1 at 9).
RDAP is an intensive drug treatment program for federal inmates with documented substance abuse problems. 28 C.F.R. § 550.56. The program utilizes both individual and group activities and requires at least 500 hours of treatment over a period of 6 to 12 months. Id. Treatment is conducted in a unit set apart from the general prison population and is followed by institutional and/or communitybased transitional programs. Id. Successful completion of RDAP can result in up to a one-year reduction in a prisoner's sentence. 18 U.S.C. § 3621(e)(2)(B). Reeb v. Thomas, 636 F.3d 1224, 1225 (9th Cir. 2011).
On March 8, 2021, Jordan was submitted by USP Atlanta for review of his eligibility for early release pursuant to 18 U.S.C. § 3621(e). (ECF No. 10-1 at 4). On March 25, 2021, the Legal Department at the Designation and Sentence Computation Center, in Grand Prairie, Texas, found Jordan ineligible for early release, inter alia because his conviction involved the carrying, possession or use of a firearm or other dangerous weapon, as specified by 28 C.F.R. § 550.55(b)(5)(ii), per the presentence report which was adopted by the Norther District of Iowa at sentencing. (ECF No. 10-1 at 5). According, the Legal Department at the Designation and Sentence Computation Center determined the nature of Jordan's conviction precluded early release eligibility under RDAP. (Id.). The decision stated: “‘This offense review was conducted in accordance with the current version of 28 C.F.R. § 550.55(b), effective May 26, 2016.'” (Id. See also ECF No. 10-1 at 23).
Respondent notes that, after arriving at FCI Phoenix, Jordan was eligible for and received drug abuse treatment. Specifically, Jordan qualified for treatment on March 8, 2021, declined on March 31, 2022 through December 8, 2022, again qualified for treatment on December 8, 2022 through February 27, 2023, and participated in residential drug treatment from February 27, 2023 through July 24, 2023.
II. Analysis
Habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Relief is available if a federal prisoner can show he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
The only claim alleged in Jordan's § 2241 petition is that he was previously eligible for early release pursuant to RDAP but he is not now eligible because of changes to the Code of Federal Regulations made in 2016, which he alleges have been retroactively applied to his sentence. He alleges that denying him early release eligibility “due to a policy change that became effective May 26, 2016, is an error,” in violation of his right to due process ....” (ECF No. 1 at 4). Jordan argues the “policy change is not retroactive for an enhancement at sentencing on an offense that was committed in 1998,” and that the “new policy just became effective in 2016 and should not be used against [him] while I was sentenced in Aug. 2000 ....” (Id.). Broadly construing Jordan's petition, he asserts he was eligible for early release pursuant to RDAP but for the application of revisions to the Code of Federal Regulations promulgated in 2016.
The BOP regulations delineating eligibility for early release via RDAP provide, inter alia:
(b) Inmates not eligible for early release. As an exercise of the Director's discretion, the following categories of inmates are not eligible for early release ...
(5) Inmates who have a current felony conviction for .
(ii) An offense that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device) .
28 C.F.R. § 550.55 (emphasis added).
The regulation excluding from RDAP early release those whose sentence was enhanced due to the involvement of a firearm in their crime was promulgated and in effect prior to the date of Jordan's indictment, conviction, and sentencing. Amendments to the Code of Federal Regulations published in October of 1997, interpreting § 3621(e)(2)(B) and BOP Program Statement No. 5162.04 (issued October 9, 1997), provided that, as an exercise of the BOP's discretion, an inmate whose sentence was enhanced for possession of a firearm was ineligible for the sentence reduction pursuant to § 3621(e)(2)(B). See Grassi v. Hood, 251 F.3d 1218, 1220-21 (9th Cir. 2001); Hunnicutt v. Hawk, 229 F.3d 997, 999 (10th Cir. 2000). See also Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 62 Fed.Reg. 53690-53691 (Oct. 15, 1997), available at 1997 WL 630755.
... the Bureau issued an interim rule that asserted the agency's discretionary authority to determine eligibility for early release under § 3621(e). 62 Fed.Reg. 53690 (Oct. 15, 1997) (“1997 interim rule”). The Bureau then exercised its discretion to narrow the class of prisoners eligible for early release beyond “nonviolent” offenders. The 1997 interim rule thereby purported to accomplish by different means what the Bureau set out to achieve in its 1995 program statement: the categorical exclusion from eligibility for early release of those prisoners convicted of an offense “involv[ing] the carrying, possession, or use of a firearm or other dangerous weapon or explosives.” 62 Fed.Reg. at 53690; 28 C.F.R. § 550.58(a)(vi)(B) (1998).Arrington v. Daniels, 516 F.3d 1106,1110 (9th Cir. 2008).
Prior to 2009, 28 C.F.R. § 550.55 was codified at § 550.58. See Walton v. Booker, 2006 WL 2374843, at *2 (D. Ariz. 2006). Effective March 16, 2009, 28 C.F.R. § 550.58 was modified slightly and redesignated as 28 C.F.R. § 550.55. Section 550.55 is nearly identical to section.
Because Jordan asserts he is being subjected to retroactive application of 2016 amendments to the Code of Federal Regulations, when the subject regulation regarding his ineligibility for early release was in effect at the time of his indictment, conviction, and sentencing, his claim for relief is based on a faulty factual premise.
Additionally, Jordan is not entitled to relief because the challenged decision is committed to the discretion of the BOP. In Lopez v. Davis, 531 U.S. 230 (2001), the Supreme Court reversed a decision by the Eighth Circuit Court of Appeals holding the statutory provision which limited RDAP relief to nonviolent offenders could not be read to exclude those who possessed a weapon while committing an offense, a sentencing factor. The Supreme Court's Lopez decision upheld the validity of the regulations, concluding a federal inmate, whose sentence for possession with intent to distribute methamphetamine was enhanced by two levels pursuant to United States Sentencing Guideline §2D1.1(b)(1), could be excluded from early release under RDAP. The Supreme Court concluded the BOP “may exclude inmates either categorically or on a case-by-case basis, subject to its obligation to interpret the statute reasonably ... in a manner that is not arbitrary or capricious.” Id. at 240. The Lopez court concluded that, because a sentence reduction associated with the successful completion of a drug treatment program was available only for conviction of a nonviolent offense, the BOP's denial of early release to an inmate who had involvement with firearms in connection with the commission of a felony, found as a sentencing factor rather than as an element of the crime of conviction, was a reasonable exercise of its discretion. Id. at 240-45.
The BOP has the discretion to exclude particular inmates from early release under RDAP; the language of § 3621(e)(2)(B) is permissive, stating the BOP “may” grant early release to prisoners convicted of non-violent crimes who complete substance abuse 550.58, but contains a detailed rationale as to why inmates who have been convicted of carrying, possessing, or using a firearm in connection with a drug trafficking offense are ineligible for consideration for early release. See Hicks v. Federal Bureau of Prisons, 603 F.Supp.2d 835, 84042 (D.S.C. 2009) (concluding the petitioner's Administrative Procedures Act challenge failed because the new regulation merely clarified the BOP's on-going position). treatment. The federal courts have concluded the statute does not guarantee even statutorily-eligible inmates an early release. See, e.g., Lopez, 531 U.S. at 241; Reeb v. Thomas, 636 F.3d 1224, 1226-28 (9th Cir. 2011); Bellis v. Davis, 186 F.3d 1092, 1094 (8th Cir. 1999). Therefore, Jordan was never entitled to a sentence reduction and he has not been deprived of a statutory right by the denial of this reduction. The federal courts will not grant habeas relief to an inmate who has been denied a sentence reduction pursuant to § 3621 unless the inmate's crime was improperly categorized or the BOP's regulations implementing § 3621's requirements are retroactively applied to an inmate who entered a drug treatment program in reliance on regulations which have subsequently been repealed. The only federal inmates who subjected to a “retroactive” application of the relevant regulation were those who determined to be eligible for RDAP relief but then notified that under the then-newly-promulgated regulation they were not eligible. See Bowen v. Hood, 202 F.3d 1211, 1222 (9th Cir. 2000).
The Ninth Circuit classified the appellants in Bowen into the “Gavis Group,” those not provisionally admitted to a substance abuse treatment program when the BOP adopted its exclusionary categories in 1997, and the “Bowen Group,” those who had received provisional eligibility for early release but had not yet entered a program. See Bowen v. Hood, 202 F.3d 1211, 1216 (9th Cir. 2000). The Bowen majority concluded: “Having been notified by the Bureau that they would be eligible for early release consideration, the members of the Bowen Group clearly had settled expectations of early release eligibility.” Id. at 1223. However, the Ninth Circuit denied relief with regard to those inmates in the Gavis Group. Id.
Additionally, Jordan's right to due process of law has not been violated. A due process claim is cognizable only if there is a recognized liberty interest at stake. E.g., Schroeder v. McDonald, 55 F.3d 454, 462 (9th Cir. 1995). Jordan cannot prevail on a due process claim because federal inmates do not have a protected liberty interest in either RDAP participation or in the associated discretionary early release benefit. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (holding that a prisoner does not have a constitutional right to be released prior to the expiration of a valid sentence); McLean v. Crabtree, 173 F.3d 1176, 1184 (9th Cir. 1999), citing Jacks v. Crabtree, 114 F.3d 983, 986 n.4 (9th Cir. 1997) (holding 18 U.S.C. § 3621(e)(2)(B) does not create a due process liberty interest in a one-year sentence reduction); Walton v. Booker, 2006 WL 2374843, *3 (D. Ariz. Aug. 16, 2006) (noting there is no constitutionally protected right of a convicted person to early release under § 3621(e)).
Accordingly, IT IS RECOMMENDED that the § 2241 petition at ECF No. 1 be denied.
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.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).