Santoro v. Wells, No. 3:2008cv00075 - Document 14 (S.D. Ga. 2009)

Court Description: ORDER adopting re 11 Report and Recommendations. Therefore, the petition is Denied, this civil action is Closed and a final judgment shall be Entered in favor of Resp Wells. Signed by Judge Dudley H. Bowen on 6/24/09. (cmr)

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Santoro v. Wells Doc. 14 IN THE UNITED STATES DISTRICT COURT j.sj. FOR THE SOUTHERN DISTRICT OF GEORGIA c Lu. .- Li DUBLIN DIVISION CL MARIO FERNANDO SANTORO, Petitioner, V. CV 308-075 WALT WELLS, Warden, Respondent. ORDER After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which objections have been filed. Several of Petitioner's objections merit further discussion, but they do not change the Court's opinion with respect to the Report and Recommendation. Petitioner first contends that the BOP's calculation of his GCT violated various sections of the Administrate Procedure Act ("APA"), 5 U.S.C. § 551, et seq. However, two of the three sections that Petitioner claims were violated by the BOP, namely 5 U.S.C. § § 702 & 706, do not govern the actions of administrative agencies. Indeed, § 702 provides for the right of review for any "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action. . . ." 5 U.S.C. § 702. In addition, § 706 outlines the scope of review for courts considering challenges to agencies' actions. § 706. These statutes do not apply to administrative agencies such as the BOP; rather, they govern courts' Dockets.Justia.com review of challenges to the actions of administrative agencies. Thus, Petitioner's argument that the BOP violated these provisions of the APA is without merit, and this portion of Petitioner's objection is OVERRULED. Petitioner also contends that the BOP violated the APA when it failed to provide the requisite notice of the regulation that governs the computation of GCT. Under the APA, when an agency implements a new regulation, it must provide notice of the proposed rule in the Federal Register. This notice must include the following information: "(1) a statement of the time, place, and nature of the public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved." 5 U.S.C. § 553(b). As Respondent correctly notes, the regulation Petitioner challenged was published for comment as a proposed rule on September 26, 1997. Good conduct Time, 62 Fed. Reg. 50786-01 (proposed Sept. 26, 1997) (to be codified at 28 C.F.R. pt. 523). The court has reviewed the contents of the notice and finds that they satisfy the requirements of the APA. Thus, Petitioner's argument that the regulation he challenges violates the notice requirements of the APA is likewise without merit, and this objection is also OVERRULED. Finally, Petitioner attempts to clarify the argument presented in his petition that he has suffered an equal protection violation by contending that the BOP treats offenders arrested in the United States and those transferred to the United States under what he refers to as the "Treaty Transfer" program "more favorably and leniently" than other offenders. (Doc. no. 13, p. 4). However, Petitioner has failed present any details describing what this more lenient and favorable treatment involves, much less demonstrate that this treatment is 2 based on a "constitutionally impermissible basis. . . ." Jones v. Ra y, 279 F.3d 944, 946-47 (11th Cir. 2001) (per curiam). Thus, he has still failed to meet his burden of demonstrating that an equal protection violation has occurred. McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (noting that the burden is on the party alleging an equal protection violation to prove "the existence ofpurposeful discrimination"(quoting Whitus v. Georgia, 385 U.S. 545, 550 (1967))). Thus, this objection is also OVERRULED.1 Accordingly, the Report and Recommendation ofthe Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, the petition is DENIED, this civil action is CLOSED, and a final judgment shall be ENTERED in favor of Respondent Wells. SO ORDERED thisof June, 2009, at Augusta, Georgia. 'The remainder of Petitioner's objections are likewise without merit and are also OVERRULED. ci

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