Evans v. Jenkins, No. 3:2018cv02716 - Document 19 (N.D. Cal. 2019)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (Illston, Susan) (Filed on 8/9/2019)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KERA EVANS, Petitioner, 8 9 v. 10 JENKINS, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Respondent. 11 United States District Court Northern District of California Case No. 18-cv-02716-SI 12 13 Kera Evans, a federal prisoner at Federal Correctional Institution in Dublin, California, has 14 filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 to challenge the 15 determination that she is not eligible for a sentence reduction upon completion of a drug abuse 16 treatment program. For the reasons discussed below, the petition will be denied. 17 BACKGROUND 18 19 A. Criminal Conviction and Sentence 20 Kera Evans pled guilty and was convicted in the United States District Court for the District 21 of Montana in 2014 of possession with intent to distribute methamphetamine (21 U.S.C. 22 § 841(b)(1)(A)). Docket No. 17-1 at 11. 23 The presentence investigation report in her criminal case stated that Evans and the driver of 24 the pickup truck in which she was a passenger were arrested when they arrived at a motel with 25 methamphetamine for a pre-arranged sale. The report also described the guns found in the truck: 26 27 28 A 9 mm pistol was located concealed in [the driver’s] back waist[band]. Also inside the vehicle along the driver’s side seat was a tactical shotgun which was in plain view. The vehicle was searched and law enforcement located a black purse which contained a plastic baggie with a white crystal substance inside, a smaller plastic baggie with a white crystal substance inside, and a glass pipe with white residue. A Ruger M77 22-250 rifle, serial number 78606869, was located on the passenger side front seat. . . . 1 2 3 A High Standard Sport King .22 caliber pistol, serial number 503887 was found between the center counsel [sic] and the front seat. . . . A Marlin Glenfield 60, a .22 caliber rifle, serial number 24378426, was located on the back seat of the vehicle. 4 5 Docket No. 17-1 at 51. 6 7 8 In a section labelled “Specific Offense Characteristic,” the presentence investigative report stated: “Pursuant to U.S.S.G. § 2D1.1(b)(1), the offense level is increased by two (2) levels as firearms were possessed during the drug transactions, listed in the Offense Conduct.” Docket No. 9 17-1 at 53. 10 Evans was sentenced to a term of 96 months in prison followed by five years of supervised United States District Court Northern District of California 11 12 release. Id. at 12-13. In calculating Evans’ sentence, the trial court “adopt[ed] the presentence investigation report without change.” Id. at 55. 13 14 B. 15 The Residential Drug Abuse Treatment Program The U.S. Bureau of Prisons (BOP) must “make available appropriate substance abuse 16 treatment for each prisoner the BOP determines has a treatable condition of substance addiction or 17 abuse.” 18 U.S.C. § 3621(b). In order to carry out this requirement, “the Bureau of Prisons shall, 18 subject to the availability of appropriations, provide residential substance abuse treatment (and make 19 arrangements for appropriate aftercare) . . . for all eligible prisoners . . . , with priority for such 20 treatment accorded based on an eligible prisoner's proximity to release date.” 18 U.S.C. 21 § 3621(e)(1)(C). The BOP offers an intensive nine-month residential treatment program and 22 incentivizes prisoners to enroll in that program by offering a possible reduction in sentence. “The 23 period a prisoner convicted of a nonviolent offense remains in custody after successfully completing 24 a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more 25 than one year from the term the prisoner must otherwise serve.” See 18 U.S.C. § 3621(e)(2)(A-B). 26 A prisoner may be admitted into the Residential Drug Abuse Treatment Program (RDAP) regardless 27 of her eligibility for early release under the incentivizing provision in § 3621(e)(2)(B). 28 2 1 As part of the RDAP admission process, a prisoner is considered for a sentence reduction. 2 Docket No. 17-1 at 4-5. Various persons at the BOP determine whether the prisoner qualifies for 3 early release by, among other things, examining information about the prisoner’s current offense. 4 Id. The Designation and Sentence Computation Center (DSCC) Legal Department determines, in 5 accordance with applicable regulations and BOP Program Statement 5162.05, whether a prisoner is 6 precluded from receiving early release. To do so, the DSCC Legal Department reviews the 7 prisoner’s DSCC-maintained electronic sentence computation file, which includes the Judgment and 8 Commitment Order, Statement of Reasons, Presentence Investigation Report, and any other relevant 9 sentencing documentation. Id. The DSCC also will consider whether early release consideration United States District Court Northern District of California 10 is precluded by prior offenses if it is not precluded by the current offense. Docket No. 17-1 at 5. 11 In deciding whether the current offense precludes early release consideration, the DSCC 12 decides whether any of the prisoner’s current offenses satisfy the criteria in 28 C.F.R. § 550.55(b), 13 and related BOP Program Statements 5331.02 and 5162.05. The regulation provides, in relevant 14 part, that, “[a]s an exercise of the Director's discretion, the following categories of inmates are not 15 eligible for early release: . . . Inmates who have a current felony conviction for: . . . [a]n offense that 16 involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives 17 (including any explosive material or explosive device)” or “[a]n offense that, by its nature or 18 conduct, presents a serious potential risk of physical force against the person or property of another.” 19 28 C.F.R. § 550.55(b)(5)(ii-iii). 20 21 C. Evans Was Admitted To RDAP But Denied Early Release Consideration 22 Evans was admitted into the RDAP on May 10, 2016. Docket No. 17-1 at 4. 23 As part of the admission process, Irena Merk, a paralegal specialist in the Designation and 24 Sentence Computation Center reviewed Evans’ file. Id. at 6. Merk found that Evans “is precluded 25 from receiving § 3621(e) early release due to her current offense conviction for Possession with 26 Intent to Distribute Methamphetamine, because her guideline level included a two-level specific 27 offense characteristic (SOC) enhancement as firearms were possessed during the drug transaction.” 28 Docket No. 17-1 at 6; see also id. at 51, 53. This enhancement was reflected in the sentencing 3 United States District Court Northern District of California 1 court’s order adopting the two-level SOC enhancement that had been recommended in the 2 presentencing report. See id. at 6-7, 53, 55. The DSCC Assistant General Counsel approved the 3 offense review finding that Evans was precluded from receiving early release consideration. See id. 4 at 7, 57-58. 5 The BOP’s determination was that Evans was precluded from early release under 18 U.S.C. 6 § 3621(e)(2)(B) because her current offense conduct “involved the carrying, possession, or use of a 7 firearm or other dangerous weapon or explosives (including any explosive material or explosive 8 device)” and “by its nature of conduct, presents a serious risk of physical force against the person 9 or property of another.” Docket No. 17-1 at 57 (citing 28 C.F.R. § 550.55(b)(5)(ii)-(iii)). 10 The BOP also looks to Program Statement 5162.05 to determine whether a current offense 11 precludes a prisoner from early release eligibility. Program Statement 5162.05 categorizes offenses 12 to, among other things, “assist in the implementation of various Federal Bureau of Prisons policies 13 and programs.” Docket No. 17-1 at 34. Section 4 of Program Statement 5162.05 lists offenses that, 14 in the Director’s discretion, preclude a prisoner from receiving certain BOP program benefits, “such 15 as early release pursuant to 18 U.S.C. § 3621(e).” Docket No. 17-1 at 41. Section 4.b describes 16 convictions with specific offense characteristic (SOC) enhancements that may or may not preclude 17 the prisoner from receiving certain BOP program benefits. Section 4.b includes an example of a 18 person whose SOC enhancement will preclude her from receiving certain BOP program benefits – 19 an example that describes Evans’ situation rather closely (except that she was convicted of 20 possession with intent to distribute rather than manufacturing). Docket No. 17-1 at 43. The example 21 explains that a person convicted under 21 U.S.C. § 841 can receive a two-level increase in his or her 22 base offense level because of an SOC if, for example, “a dangerous weapon was possessed during 23 commission of the offense.” Docket No. 17-1 at 43. 24 25 26 27 28 This particular “Special Offense Characteristic” (possession of a dangerous weapon during the commission of a drug offense) poses a serious potential risk that force may be used against persons or property. Specifically, as noted in the U.S. Sentencing Guidelines § 2D1.1., application note 3, the enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. Accordingly, an inmate who was convicted of manufacturing drugs, (21 U.S.C. § 841) and received a two-level enhancement for possession of a firearm has been convicted of an offense that will preclude the inmate from receiving certain Bureau program benefits. 4 1 Docket No. 17-1 at 43. 2 United States District Court Northern District of California 3 D. Evans’ Petition For Writ Of Habeas Corpus And Response Thereto 4 Evans urges in her petition for writ of habeas corpus that the BOP’s reliance upon her 5 sentence enhancement to determine that she was ineligible for early release consideration under 18 6 U.S.C. § 3621(e) was “unconstitutional” because, by “ignoring the offense of conviction and looking 7 only to sentencing factors, the BOP has attempted to transform a nonviolent offense into a crime of 8 violence.” Docket No. 1-1 at 1. The court understands this to be a due process claim. Evans also 9 contends that the BOP’s determination that she was precluded from early release consideration 10 violated her right to equal protection of the laws because other prisoners purportedly received the 11 sentence reduction even though they had been convicted of the same offense as hers. Docket No. 12 1-1 at 2. 13 Respondent makes several arguments in response to the petition. First, Respondent argues 14 that judicial review is not available for the BOP’s individualized decision to deny early release 15 consideration for a particular prisoner. Second, he argues that the due process and equal protection 16 claims are meritless. Finally, he argues that the BOP properly determined that Evans’ conviction 17 offense precludes her eligibility for early release consideration under § 3621(e) because of the two- 18 level enhancement Evans received. 19 DISCUSSION 20 21 22 23 24 25 26 27 28 A. A Challenge To The Categorical Rule Precluding Early Release Consideration Or To The Individualized Determination Under That Categorical Rule Fails. A challenge to the BOP’s categorical rule precluding prisoners from early release consideration based on a special offense characteristic is foreclosed by Lopez v. Davis, 531 U.S. 230, 240–43 (2001), which upheld the BOP’s discretion to determine eligibility of inmates for early release under 18 U.S.C. § 3621(e)(2)(B) and to categorically exclude prisoners based on special offense characteristic enhancements. The Court explained that § 3621(e)(2)(B) categorically denied early release eligibility to inmates convicted of violent offenses and gave the BOP discretion to 5 United States District Court Northern District of California 1 impose other limitations as to which prisoners who completed the drug treatment program would be 2 granted early release. See Lopez, 531 U.S. at 239-40. “When an eligible prisoner successfully 3 completes drug treatment, the Bureau thus has the authority, but not the duty, both to alter the 4 prisoner’s conditions of confinement and to reduce his term of imprisonment.” Id. at 241. The 5 Court determined that the BOP could categorically exclude prisoners based on pre-conviction 6 conduct and that the BOP had properly “conclud[ed] that an inmate’s prior involvement with 7 firearms, in connection with the commission of a felony, suggests his readiness to resort to life- 8 endangering violence and therefore appropriately determines the early release decision.” Id. at 244. 9 The Court held that the BOP had reasonably exercised its discretion under 18 U.S.C. § 3621(e)(2)(B) 10 in implementing the regulation (i.e., former 28 C.F.R. § 550.58(a)(1)(vi)(B)) that categorically 11 precluded early release consideration for an inmate whose current offense involved the carrying, 12 possession, or use of a firearm or other dangerous weapon. Id. at 232. (Former 28 C.F.R. § 550.58 13 has been redesignated and is now 28 C.F.R. § 550.55. See 69 Fed. Reg. 39887–02 (2004).) 14 Contrary to Evans’ argument, the BOP has not attempted to transform a nonviolent offense 15 into a crime of violence. Rather, the BOP has determined that a category of inmates (i.e., those 16 whose offenses involved possession of a firearm, as evidenced by the imposition of the SOC 17 enhancement) who are not excluded by the text of § 3621(e)(2)(B) from consideration for early 18 release are precluded from consideration for early release in the exercise of the BOP’s discretion. 19 Lopez upheld that exercise of discretion. Evans’ reliance on Ward v. Booker, 202 F.3d 1249 (10th 20 Cir. 2000), for a contrary view is misplaced because that case is no longer good law: it was vacated 21 and remanded in light of Lopez. See Booker v. Ward, 531 U.S. 1108 (2001). 22 In sum, the court rejects Evans’ argument that the BOP could not preclude from early release 23 consideration all of those inmates whose offense involved the possession of a firearm. The next 24 question is whether there is any merit to Evans’ challenge the BOP’s determination in her particular 25 case that she was precluded from early release consideration due to her SOC enhancement. 26 The Administrative Procedure Act (APA) provides a cause of action for persons “suffering 27 legal wrong because of agency action, or adversely affected or aggrieved by agency action within 28 the meaning of a relevant statute.” 5 U.S.C. § 702. But that cause of action does not exist if the 6 1 relevant statute precludes judicial review or agency action is committed to agency discretion by law. 2 Id. at § 701(a). 3 The BOP’s discretionary determinations under 18 U.S.C. § 3621 are an instance where 4 judicial review under the APA is precluded by statute. Congress has specified that the BOP’s 5 discretionary determinations under 18 U.S.C. § 3621 are not subject to judicial review under the 6 APA. See 18 U.S.C. § 3625. 7 12 There is no ambiguity in the meaning of 18 U.S.C. § 3625. The 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. The BOP has authority to manage inmate drug treatment programs, including RDAP, by virtue of 18 U.S.C. § 3621. To find that prisoners can bring habeas petitions under 28 U.S.C. § 2241 to challenge the BOP's discretionary determinations made pursuant to 18 U.S.C. § 3621 would be inconsistent with the language of 18 U.S.C. § 3625. Accordingly, 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. 13 Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (emphasis added); see, e.g., id. (BOP’s 14 decision to expel petitioner from RDAP was not reviewable by the district court). 8 9 10 United States District Court Northern District of California 11 15 The district court generally “lack[s] jurisdiction to review the BOP’s individualized 16 determinations made pursuant to 18 U.S.C. § 3621.” Reeb, 636 F.3d at 1228. In other words, this 17 court cannot consider or grant relief on a claim that the BOP did not properly apply the regulations 18 and program statement when it determined that Evans was precluded from being considered for 19 early release even if she completed the RDAP. The foregoing thus would be the end of the analysis 20 but for the fact that Evans asserts that the BOP’s decision violated her rights to due process and 21 equal protection. Judicial review remains available for allegations that the BOP’s action violated 22 the United States Constitution., see Reeb, 636 F.3d at 1228, so the court next considers the 23 constitutional claims. 24 25 B. Due Process Claim 26 The first step in a due process analysis is determining whether any process is due. To obtain 27 a constitutionally protectible right, “‘a person clearly must have more than an abstract need or desire 28 for it’” and instead must have “a legitimate claim of entitlement to it.’” Greenholtz v. Inmates of 7 United States District Court Northern District of California 1 Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). “There is no constitutional or inherent 2 right of a convicted person to be conditionally released before the expiration of a valid sentence.” 3 Id. 4 The problem for Evans is that there is no federal law that confers a protected right to early 5 release under § 3621(e). As one court explained, the “hallmark of a statute that has not created a 6 liberty interest is discretion. Where the statute grants the prison administration discretion, the 7 government has conferred no right on the inmate.” Richardson v. Joslin, 501 F.3d 415, 419 (5th 8 Cir. 2007). Section 3621(e)(2)(B) plainly grants the BOP discretion in decisions regarding early 9 release consideration, as it states that the period of custody after successful completion of RDAP 10 “may be reduced” by up to one year. This statutory language shows the discretionary nature of the 11 BOP’s decisions regarding early release consideration. See Richardson, 501 F.3d at 420 (“The grant 12 of discretion to the BOP in § 3621(e)(2)(B) indicates that no entitlement and, hence, no liberty 13 interest, was created.”); see generally Lopez, 531 U.S. at 241-42 (discussing BOP’s exercise of 14 discretion under § 3621(e)(2)(B)). The Ninth Circuit rejected a claim of the sort Evans appears to 15 make when it concluded that a prisoner challenging his removal from RDAP “cannot prevail on his 16 due process claim because inmates do not have a protected liberty interest in either RDAP 17 participation or in the associated discretionary early release benefit.” Reeb, 636 F.3d at 1228 n.4. 18 Evans’ due process claim fails because she had no protected liberty interest in obtaining early release 19 upon completion of RDAP. 20 21 C. Equal Protection Claim 22 The Fourteenth Amendment's Equal Protection Clause provides that no state shall deny to 23 any person “the equal protection of the laws.” U.S. Const. amend. XIV. The equal protection 24 component of the Due Process Clause of the Fifth Amendment imposes a similar obligation on the 25 federal government. High Tech Gays v. Defense Indus. Security Clearance Office, 895 F.2d 563, 26 570-71 (9th Cir. 1990). The Equal Protection Clause ensures that “all persons similarly situated 27 should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The 28 Constitution does not, however, require things that are different to be treated the same. Plyler v. 8 1 2 Evans claims that she has been treated differently from other prisoners who were allowed 3 early release even though their crimes were similar to hers. Docket No. 1-1 at 2 (“other inmates 4 have received the reduction and have the same offense. I am entitled to equal treatment under the 5 law”). She does not provide any evidence to prove this assertion, as she would need to do to have 6 any hope of showing an equal protection violation. Similarly situated people would be inmates who 7 had (a) convictions under 21 U.S.C. § 841 for manufacturing or possession for sale or with intent to 8 distribute, and (b) SOC enhancements for firearm possession. A prisoner who merely had a 9 conviction under § 841 but not the SOC enhancement is not similarly situated to a prisoner who has 10 United States District Court Northern District of California Doe, 457 U.S. 202, 216 (1982). both circumstances. 11 Evans cites to several cases that supposedly support her equal protection claim, but none 12 persuade the court that she has a meritorious claim. The main problem with the cases she cites is 13 that they are based on an outdated version of the regulations and/or have been overturned. She cites 14 Arrington v. Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008), in which the Ninth Circuit held that the 15 2000 version of 28 C.F.R. § 550.58 was invalid under the APA due to the BOP’s failure to articulate 16 its rationale in the administrative record. This problem no longer exists, as the Ninth Circuit has 17 since recognized in Peck v. Thomas, 697 F.3d 767, 770-72 (9th Cir. 2012) (BOP did not violate the 18 APA when, in 2009, it exercised its discretion under § 3621(e)(2)(B) by implementing a regulation 19 (28 C.F.R. § 550.55(b)) that categorically excludes certain classes of inmates from eligibility for 20 § 3621(e)’s early release incentive). Arrington does not support Evans’ equal protection claim. 21 Next, Evans cites Kilpatrick v. Houston, 36 F. Supp. 2d 1328 (N.D. Fla. 1999), but that case is not 22 helpful because it is no longer good law as it was vacated by Houston v. Kilpatrick, 531 U.S. 1108 23 (2011), in light of Lopez. The other two cases Evans cites suffer the same infirmity: they are based 24 regulations that pre-date the 2009 regulation that Peck held was not invalid under the APA and that 25 was applied to Evans: Bohner v. Daniels, 243 F. Supp. 2d 1171 (D. Or. 2003), addressed the 1997 26 version of the regulation and program statement, and Byrd v. Hasty, 142 F.3d 1395 (11th Cir. 1998) 27 addressed a pre-1997 version of the regulation and program statement. 28 9 1 Evans fails to show that she was treated differently from similarly situated prisoners when 2 she was determined to be precluded from early release consideration due to her SOC enhancement. 3 Her equal protection claim fails. 4 CONCLUSION 5 6 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 7 IT IS SO ORDERED. 8 9 10 Dated: August 9, 2019 ______________________________________ SUSAN ILLSTON United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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