Opinion
CASE NO. 5:05cv230-SPM/AK.
March 28, 2007
ORDER
THIS CAUSE comes before the Court upon the Magistrate Judge's report and recommendation (doc. 24) dated March 2, 2007. Petitioner was furnished a copy and has filed an objection (doc. 26). Pursuant to Title 28, United States Code, Section 636(b)(1), I find that the report and recommendation is correct and should be adopted by the Court.
Petitioner claims that the BOP has wrongfully refused to reduce his sentence after he completed the residential drug abuse treatment program in accordance with 18 U.S.C. § 3621(e). Petitioner's reliance on Byrd v. Hasty, 142 F.3d 1395 (11th Cir. 1998) is misplaced because the BOP regulation at issue in Byrd has since been amended to rely on the BOP's discretionary authority to exclude inmates for sentence reductions. See Lopez v. Davis, 531 U.S. 236, 234-35 (2001) (noting split among Circuit Court which prompted BOP to amend its regulations). The amended regulation was upheld by the United States Supreme Court. Petitioner's reliance on Ward v. Booker, 202 F.3d 1249 (10th Cir. 2000) is likewise misplaced because Ward was vacated based on the Supreme Court's decision inLopez. See Martin v. Rios, 472 F.3d 1206, 1207-08 (10th Cir. 2007).
Petitioner's reliance on Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2002) to argue that the amended regulation should not apply to him is misplaced. Even if this Court were to find the reasoning in Bowen persuasive, the BOP is not retroactively applying the amended regulation to Petitioner, who was convicted after the amended regulation was promulgated. See Murphy v. Hood, 276 F.3d 475, 478 (9th Cir. 2001).
Finally, Petitioner's argument that the BOP regulation violates the Administrative Procedure Act has been rejected by the Eleventh Circuit Court of Appeals. Walther v. Bauknecht, No. 05-12932, 2005 WL 3096491 at *4, 155 Fed. Appx. 463, 467 (11th Cir. Nov. 21, 2005). Accordingly, it is
ORDERED AND ADJUDGED:
1. The Magistrate Judge's report and recommendation (doc. 24) is adopted and incorporated by reference into this order.
2. The petition for writ of habeas corpus (doc. 1) is denied.
DONE AND ORDERED.