Opinion
Cr. No. S-00-0205 WBS, Civ. No. S-06-1561 WBS.
October 27, 2006
ORDER
Defendant Javier Herrera has filed a Motion for Time Reduction, pursuant to 28 U.S.C. § 2255, upon the ground that, because of the fact he is not a citizen of the United States, he has been denied the benefit of a one year reduction of his sentence by way of being placed in a halfway house on early release.
It appears that defendant applied for the Residential Drug Abuse Program, but is ineligible for a sentence reduction upon completion of that program because the Immigration and Naturalization Service has lodged an immigration detainer against him.
The Ninth Circuit has held that this kind of rule excluding prisoners with detainers from sentence reduction eligibility does not violate the Constitution because it is "rationally related to the BOP's legitimate interest in preventing prisoners from fleeing detainers while participating in community treatment programs." McLean v. Crabtree, 173, F.3d 1176, 1186 (9th Cir. 1999). Following McLean, Judge Levi denied the petition of a prisoner making a similar claim in United States v. Madrigal-Madrigal, 2005 WL 221930, *1 (E.D. Cal. September 14, 2005).
IT IS THEREFORE ORDERED that defendant's Motion for Time Reduction, pursuant to 28 U.S.C. § 2255, be and the same hereby is, DENIED.