Opinion
5:22-cv-00297-MEMF (MAR)
05-26-2023
RONALD LEE MINER, Petitioner, v. THAHESHA JUSINO, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE IN PART
HONORABLE MAAME EWUSI-MENSAH FRIMPONG, UNITED STATES DISTRICT JUDGE.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records on file, and the Report and Recommendation of the United States Magistrate Judge. The Court has engaged in de novo review of those portions of the Report to which Plaintiff has objected.
The Court accepts the findings of the Magistrate Judge, as stated in page 4, line 13 through page 6, line 13 of the Report and Recommendation. Accordingly, the Court finds that the Petition must be denied because Petitioner is statutorily ineligible for custody credits under 18 U.S.C. § 3585(b) as found by the Magistrate Judge.
The Court also accepts the findings of the Magistrate Judge, as stated in page 6, lines 1627; page 7, lines 17-21; and page 8, lines 1-4 of the Report and Recommendation. Accordingly, the Petition must be denied for the further reason that judicial review of the Bureau of Prison's (“BOP”) discretionary decision to deny Petitioner a nunc pro tunc designation is precluded, see Reeb v. Thomas, 636 F.3d 1224, 1226-29 (9th Cir. 2011) (“[t]here is no ambiguity . . . [t]he plain language of this statute specifies that the judicial review provisions of the APA, 5 U.S.C. §§ 701-706, do not apply to ‘any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624”); see also Espinoza v. Maye, No. 2:11-CV-0929 KJN P, 2014 WL 4194095, at *8 (E.D. Cal. Aug. 22, 2014) (citing Reeb and district court decisions, and finding “[t]o the extent petitioner seeks review of the BOP's decision [to deny him a retroactive nunc pro tunc designation that his federal and state sentences were concurrent], this court lacks jurisdiction to challenge the BOP's discretionary determination.”). The Court notes that “[a]lthough judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority,” Reeb, 636 F.3d at 1228, Miner's petition “alleges only that the BOP erred in his particular case,” Reeb, 636 F.3d at 1228, which is unreviewable.
Because the Petition must be dismissed, as discussed above, the Court declines to accept the Report and Recommendation to the extent it finds Petitioner is ineligible for a nunc pro tunc designation because the federal sentencing court did not impose concurrent federal and state sentences, see ECF No. 14 at 7 lines 2-17.
The Court also rejects Petitioner's arguments raised in his Objections to the Report and Recommendation.
Notably, Petitioner objects to the finding in the Report and Recommendation that he is ineligible for a nunc pro tunc designation. ECF No. 17 at 6. The Court does not further address Petitioner's arguments in light of its decision not to accept this portion of the Report and Recommendation.
In addition, Petitioner appears to argue that the BOP denied him procedural due process by failing to comply with the procedures required by BOP Program Statement 5160.05. ECF No. 17 at 5. In order to state a cause of action for deprivation of procedural due process, however, Petitioner must first establish the existence of a liberty interest for which the protection is sought. Hewitt v. Helms, 459 U.S. 460, 466 (1983). Petitioner has not presented any authority suggesting he has a liberty interest in receiving a nunc pro tunc order designating federal and state sentences as concurrent, particularly where, as here, the state sentence had been discharged by the time the federal sentence was imposed. Rather than stating a procedural due process claim, it appears Petitioner merely argues that the BOP failed to comply with the procedures set out in BOP Program Statement 5160.05. The BOP's failure to comply with its own program statement, however, is insufficient to create a federal cause of action reviewable by the Court. See Reeb, 636 F.3d at 1227 (“A habeas claim cannot be sustained based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law.”).
Even if Petitioner could establish a liberty interest in receiving a nunc pro tunc order based on the BOP program statement, he has not shown that he was denied the process contemplated by the program statement. Specifically, Petitioner argues that in making its decision on the nunc pro tunc designation the BOP was required to “seek review of such a request by the sentencing court prior to making a nunc pro tunc designation.” ECF No. 17 at 5. Petitioner is mistaken. BOP Program Statement 5160.05 requires input from the sentencing court in limited circumstances, not applicable here. See BOP Program Statement 5160.05 at ¶ 9.4.c. (“if a designation for concurrent service may be appropriate (e.g., the federal sentence is imposed first and there is no order or recommendation regarding the service of the sentence in relationship to the yet to be imposed state term), the RISA will send a letter to the sentencing court (either the Chambers of the Judge, U.S. Attorney's Office, and/or U.S. Probation Office, as appropriate) inquiring whether the court has any objections” (emphasis added)).
Petitioner's remaining Objections lack merit for the reasons stated in the Report and Recommendation.
IT IS THEREFORE ORDERED that Judgment be entered dismissing this action without prejudice.