Kittel v. Thomas, No. 3:2007cv00851 - Document 30 (D. Or. 2009)
Court Description: OPINION AND ORDER. Based on the above, the Petition for Writ of Habeas Corpus 1 is denied, petitioner's motion to reconsider 21 is denied, and this action is dismissed. IT IS SO ORDERED. Signed on 06/26/09 by Judge Garr M. King. (pvh)
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON WILLIAM KITIEL, Petitioner, Civil No. 07-851-KI OPINION AND ORDER v. J.E. THOMAS, Warden, Federal correction Institution, Respondent. KING, District Judge: Petitioner has advanced a Motion for Reconsideration regarding his habeas corpus action brought pursuant to 28 U.S.C. § 2241. Oral argument on this motion was heard on June 4,2009. For the reasons set forth below, the Motion for Reconsideration [21] is denied, the Petition for Writ ofHaheas Corpus [1] is denied, and this action is dismissed. FACTUAL FINDINGS AND PROCEDURAL HISTORY In 2001, Petitioner was convicted in the United States District Court for the Western District of Washington for Manufacture of Methamphetamine and Possession of Methamphetamine with 1 -- OPINION AND ORDER Intent to Distribute. Resp't Mot. Dismiss, Ex.2at 1. Petitioner was sentenced to 120 months imprisonment; with five years post-prison supervision. Id. at 2-3. Supervised release terms specified that petitioner undergo mandatory drug testing, participation in substance abuse treatment, and abstaining from the use of alcohol and other intoxicants. [d. at 4. The Bureau of Prisons (BOP) calculated petitioner's full tenn to expire on September 6, 2010, and his projected statutory release date (PRO) to be May 24, 2009. Resp't Resp. to Questions, Ex. 1, Attachment 1 at 2. Petitioner was confined at Federal Correction Institution (FCI) Sheridan, Oregon, from June 27,2006 to May 2,2008. Id., Ex. 1 at 2. On or about June 24,2005, petitioner applied to participate in the BOP's Residential Drug Abuse Program (RDAP). Resptt Mot. Dismiss at 3. The RDAP provides ninemonths ofresidential treatment and six months of community placement. Resp1t Resp. to Questions, Ex. 1 at 3. Upon successful completion ofthe RDAP, inmates may be eligible for up to one year ofdiscretionary early release benefits under 18 U.S.C. § 3621(e). On or about June 28,2005, Petitioner was placed on the ROAP Wait List, but was found ineligible for early release benefits due to his two-point gun enhancement at sentencing. [d., Ex. I, at 2 and Attach. 2. Petitioner's placement on the RDAP Wait List was based on his PRO. Id., Ex. t at 3. The RDAP Wait List is administered by placing inmates with earlier projected release dates ahead of inmates with later release dates. Id. On June 7,2007, petitioner filed a petition pursuant to 28 U.S.C. § 2241, alleging that his right to due process had been violated by the BOP's initial denial ofeligibility for early release based on28 C.F.R. § 550.58(a)(1)(vi)(B). Petitioner argued United Stales v. Booker changed fact ftnding procedures for sentencing. 543 U.S. 220 (2005). Petitioner contended that this change overruled 2 -- OPINION AND ORDER Lopez v. Davis, which upheld BOP's discretion to categoricallydeny early release to prisoners whose felonies involved the use ofa firearm. 531 U.S. 230 (2001). Petitioner did not challenge his sentence, nor did he challenge the validity or reasonableness ofhis tenn ofpost-prison supervision. Petitioner requested a writ "establishing the reliefthis Court deems necessary;" Pet. at 4. On or about June 25,2007, petitioner entered the RDAP. Resp't Resp. to Questions, Ex. 1 at 2. and Attach. 2. On July 30, 2007, this court dismis$ed petitioner's § 2241 action on grounds that the court lacked jurisdiction to adjudicate a challenge to his sentence, and that Booker provided no basis. for relief regarding challenges to the execution of his sentence. Petitioner appealed the dismissal, and this appeal was pending on February 20, 2008, when the Ninth Circuit ruled that the BOP violated the Administrative Procedures Act (APA) in promulgating 28 C.F.R. § 550.58(a)(I)(vi)(B). See Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008). Petitioner's action was not included in the consolidation of Oregon cases controlled by Arrington. On or about March 24, 2008, petitioner completed the nine-month residential treatment component, and on or about April 3, 2008, pursuant to Arrington petitioner was found eligible for early release. Resp't Resp. to Questions, Ex. 1 at 2, Attachment 2. On or about May 6, 2008, petitioner was placed in a Residential Resource Center (RCC). Id. Petitioner's transfer to the RCC was delayed by ten days due to his initial designation as ineligible for early release benefits. Id., Ex. 1 at 3. On July 16, 2008, the Ninth Circuit granted petitioner's unopposed motion for remand to 3 -- OPINION AND ORDER permit this court to reconsider his petition in light ofArrington's ruling. On or about August 11, 2008, petitioner was transferred to home confinement. On or about October 28, 2008, petitioner was released from BOP custody. Jd. at 2. He remains on supervised release. Petitioner's October 28, 2008, release from custody may have been delayed by ten days due to the similar delay he experienced in the RCC transfer. Id. at 3. However, petitioner completed the community treatment portion of the RDAP early, obtaining access to the discretionary early release benefits prior to the program's six-month tenn. Id. Consequently, his early completion may have resulted in an earlier release from custody than other RDAP emollees received. Respondent moved to dismiss the petition that the Ninth Circuit remanded as moot on grounds that no additional relief was available to petitioner. Petitioner had completed the RDAP, had been found eligible for early release, and was no longer in custody. See Resp't Mot. Dismiss. On November 20, 2008, the court granted respondent's motion to dismiss on grounds that petitioner's eligibility for early release benefits pursuant to Arrington and his completion ofRDAP rendered his action moot, and to the extent he sought modification ofhis sentence, his petition under § 2241 was improper. See Order of November 20,2008, at 3-4. Petitioner moved for reconsideration of this court's decision, arguing that his early release did not moot his petition because appropriate habeas reliefcan be determined at the time the petition is filed, and that this court "appears to have ruled on ... an issue not briefed by the parties" and that "the denial based on § 2255 appears to be in error." Pet'r Mot. Recons. at 3. This court granted reconsideration, concluding that "[t]o the extentthis court relied on § 2255 4 -- OPINION AND ORDER in concluding that Petitioner's habeas petition was moot, the court erred." Order ofApril 21, 2009, at 2. Following additional briefing and argument, and a careful examination of the record, the court now makes the following additional factual findings: ¢ On June 28, 2005, petitioner was deemed ineligible for early release benefits based on a regulation that was invalid under the APA. ¢ Petitioner was released from custody after completing the communityplacement requirement for discretionary early release benefits in less than the six months allotted for completion. This may have resulted in petitioner obtaining earlier release than other RDAP enrollees. ¢ Petitioner received less than a full year of discretionary early release benefits upon successfully completing RDAP and being found eligible for early release benefits under Arrington. QUESTIONS PRESENTED Petitioner's initial § 2241 action alleged that his right to due process had been violated because the BOP denied him eligibility for discretionary early release benefits based on 28 C.F.R. § 550.58(a)(1 )(vi)(B). The explicit remedy he sought was eligibility for early release. On remand, petitioner reconstructed his habeas action as a challenge to the sufficiency of the early release benefits he received, a claim that is distinct from the due process claim his petition raised. Nevertheless, at oral argument on June 4, 2009, petitioner agreed with the court's characterization of his position as asserting that the BOP has been unfair in administeringRDAP and, as a result, petitioner and other prisoners received a diminished opportunity to get a full year's reduction in the sentences they were serving. Moreover, similar to the positions of some prisoners with stakes in the Arrington decision, these prisoners maintain an interest in getting relief even though· they are no lortgerincarcerated. The relief being sought is reductions in supervised relief 5 -- OPINION AND ORDER Petitioner requests ajudgment that can be presented as a "predicate ruling" in an anticipated petition to be brought before the sentencingcourt that seeks a reduction in thetenns ofpetitioner's supervised release. DISCUSSION Article ill, § 2 ofthe United States Constitution requires that a case or controversy exist for a federal court to exercisejurisdiction. Lewis v; Continental Bank Corp., 494 U.S. 472, 477 (1990). "This means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injurytraceable to the defendant and likely to beredressed by a favorable judicial decision." Spencer v. Kemna, 523 U.S. 1, 7 (1998) (citation and internal quotation omitted); see also Mills v. Green, 159 V.S. 651, 653 (1895). "The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted." Tur v. YouTube, Inc., 562 F.3d 1212 (9th Cir. 2009) (quotingN w: Envtl. De! etr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988». "An issue is moot when deciding it would have no effect within the confines of the caSe itself." Id.; see also Mills, 159 U.S. at 653 ('Iwhenpending an appeal ... an event occurs which renders it impossible for this court to grant [ ] any effectual relief whatever, the court will not proceed to a formal judgment ...."); Brownlow v. Schwartz, 261 V.S. 216, 217 (1923) ("This court will not proceed toa determination when its judgment would be wholly ineffectual for want of a subject matter on which it couId operate."); In re NationalMass Media Telecom. Systems, Inc. v. Stanley, 152 F.3d 1178, 1180 (9th Cir. 1998) ("mootness is a concept that applies when an event occurs while a caSe is pending on appeal that makes it iinpossible for the court to grant 'any effectual relief whatever'... .'i). The availability of a partial remedy is sufficient to prevent a case from being moot. Church 6 -- OPINION AND ORDER ofScientology ofCalifornia v. United States, 506 U.S. 9, 13 (1992). However, "ifan event occurs while a case is pending on appeal that makes it impossible for the court to grant 'any effectual relief whatever' to a prevailing party, the appeal must be dismissed." Id. at 12 (citing Mills, 159 U.S. at 653); see also In re National Mass Media Telecom. Systems, Inc., 152 F.3d at 1180. Thus, to overcome dismissal for mootness,petitioner must establish that he suffered an aetualinjurytraeeable to BOP, and that the court can grant effectual relief for that injury. That petitioner suffered an actual injury traceable to BOP is undisputed. Petitioner's initial denial of eligibility for discretionary early release benefits was later invalidated, and this denial resulted in a ten-day delay in petitioner'S transfer to an RCC. The remaining question is whether effectual relief is available in this court. When petitioner filed his habeas petition, he sought to require that BOP designate him eligible for discretionary early release benefits. The Ninth Circuit decided Arrington when petitioner's petition was on appeal. Within ten days completing the prerequisites for eligibility, petitioner was designated eligible. Although Arrington's decision resulted in petitioner receiving discretionary early release benefits, and at least a partial remedy on his claim, petitioner now asks the court for a predicate ruling to make up for his deprivation ofan opportunity to receive a full year of discretionary early release benefits. Specifically, petitioner proposes that this court issue an order that provides that "for the reasons stated in Arringtonv. Daniels . .. the initial decision denying [petitioner's] eligibility for the sentence reduction violated the [APA]." Petlr Supp. Mem. at 4. Such an order would simply reiterate a fact that is not in dispute -- that petitioner was initially wrongfully denied eligibility for early release benefits. The proposed recitation would be ineffectual in providing a meaningful 7 -- OPINION A1:'lD ORDER remedy for the harm that petitioner suffered as a result of BOP's actions. The order would not reverse the delay occurring before petitioner's early release, it would not provide an opportunity to seek a full year of discretionary early release benefits, and it would have no legal effect in a subsequent action seeking modification of supervised release. Because this court cannot fashion effectual relief, the petition is moot. Church ofScientology ofCalifornia, 506 U.S. at13; Mills, 159 U.S. at 653. Petitioner's argument against mootness is misplaced. It is true that the Ninth Circuit has found that the possibility ofrelief in the fonn ofmodification ofsupervised release teons can defeat some mootness arguments. See, e.g.,Serrato v. Clark, 486 F.3d 560 (9th Cir. 2007); Mujahid v. Daniels, 413 F.3d 991, 994-95 (9th Cir. 2005); Gunderson v. Hood, 268 F.3d 1149, 1153 (9th Cir. 2001); Arrington, 516 F.3d at 1112 nA (citing Mujahid and Gunderson). However, in these cases, the legality ofthe BOP action being challenged had yet to be detennined. The Ninth Circuitrejected the BOP's arguments that the merits ofthe petitioners' challenges need not be examined because the petitioners' release from custody rendered their claims moot. Instead, because of the possibility of reliefin the fonn ofmodified supervised release teons, the Ninth Circuit proceeded to examine (and ultimately uphold) the BOP's challenged actions. In upholding the BOP's actions these rulings necessarily found that these petitioners suffered no actionable injuries. Petitioner here seeks an order granting his petition to use as a predicate for seeking a reduction of his tenn of supervised release. Of course, the absence of such a tailored order would in no way prevent petitioner from proceeding formally to seek a reduction in supervised relief. It is true that, under Gunderson and Mujahid, a prisoner's release from BOP custody to supervised release may not render a habeas petition moot. However, the court rejects petitioneris 8 -- OPINION AND ORDER assertion that such holdings should be interpreted as eliminating the long-standing requirement that effectual relief within the confines of the action at issue must still be available to be granted to the petitioner. See Burkeyv. Marberry, 556 F.3d 142 (3rd Cir. 2009) (denying a petitioner's request for an order granting reliefin a § 2241 action for purposes ofbolstering a petition before the sentencing court for reduction of supervised release). In this case, there is nothing remaining for this court to decide and no effectual relief to be granted after petitioner was granted discretionary early release benefits under Arrington. The court also concludes in the alternative that even if this action is viewed properly as not tnoot, the relief petitioner has received is sufficient, and the relief now sought cannot be provided. Granting an advisory opinion tobolster petitioner's argument in a future proceeding is inappropriate. Mills, 159 U.S. at 653. CONCLUSIONS OF LAW ¢ Petitioner was designated ineligible for early release benefits based on a regulation invalidated in Arrington. Although petitioner was later found eligible for early release under Arrington, he was denied ¢ the opportunity for a full year of early release benefits. ¢ Arrington provides the legal basis for petitioner seeking a modification in his supervised release in. the sentencing court. ¢ A predicate ruling from this court does not constitute effectual relief within the parameters of this § 2241 action. ¢ The predicate ruling petitioner seeks wOldd be an advisory opinion. ¢ Petitioner's petition is moot because no further effectual relief is available :from this court. 9 -- OPINION AND ORDER ¢ Petitioner has received appropriate relief for the habeas action filed with this court through the Arrington decision and his subsequent early release. CONCLUSION Based on the above, the Petition for Writ ofHabeas Corpus [1] is denied, petitioner's motion to reconsider [21] is denied, and this action is dismissed. IT IS SO ORDERED. ~ DATED this ~day-of June, 2009. ~4~-+~-dg-e-- 10 -- OPINION AND ORDER
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