Abbott v. Federal Bureau of Prisons, No. 3:2011cv01047 - Document 43 (D. Or. 2013)
Court Description: OPINION AND ORDER. The Amended Petition for Writ of Habeas Corpus 11 is denied. IT IS SO ORDERED. Signed on 9/24/2013 by Judge Michael W. Mosman. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON SHANE AARON ABBOTT, Case No. 3:11-cv-01047-MO Petitioner, v. FEDERAL BUREAU OF PRISONS and J.E. THOMAS, OPINION AND ORDER Respondents. Stephen R. Sady, Chief Deputy Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner S. Amanda Marshall United States Attorney Ronald K. Silver, Assistant United States Attorney Natalie K. Wight, Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204-2902 Attorneys for Respondents 1 - OPINION AND ORDER MOSMAN , District Judge . This 28 U. S . C . court on a § 2241 habeas corpus case comes before the limited remand from the Ninth Circuit to determine petitioner ' s eligibility f or early release under the Residential Drug Abuse Program ( " RDAP " ) . Because the court · lacks subject matter jurisdiction to reexamine this individualized determination under the · Administrative Procedures Act , and as petitioner is unable to prevail on his constitutional challenges , relief on the Amended Petiti on is denied . BACKGROUND Petitioner originally filed this action on August 26 , challenging a decision by the Bureau of Prisons ("BOP" ) 2011 denyin~ him participation in RDAP because he had three outstanding warrants, one of which prevented . him from transi tioning to corrections center toward the end of his sentence . a community On September 28 , 2012 , the court denied relief on petitioner's Amended Petition and petitioner timely appealed. In the meantime , respondents learned of internal BOP guidance that permits an inmate with a pending warrant to qualify for participation in RDAP so long as there is no pending detainer . It also learned that the warrant precluding petitioner's consideration for placement in RDAP had been quashed . evaluated petitioner ' s RDAP As a result , the BOP re - eligibility on April approved him for participation in that program . 2 - OPINION AND ORDER 1, 2013, and Declaration of Daniel Dougherty , pp. 2 - 3 . Petitioner began participation in RDAP on May 1 , 2013 . After petitioner was approved for participation in RDAP , the BOP ' s Designation and Sentence Computation Center ("DSCC" ) explored petitioner ' ~ eligibility for available under 18 U. S.C. § the early release benefit of RDAP 3621 (e ) (2) (B) . On April 3 , 2013, the DSCC concluded petitioner was not eligible for the early release benefit because he had a precluding prior Montana conviction for unlawful restraint . at this conclusion , the DSCC applied 28 C . F . R. state conviction , In arriving Id at 3. § a 550.55 (b ) ( 4 ) which precludes an inmate from receiving earl y release if he has a prior felony or misdemeanor c o nviction for homicide , forcible rape , robbery , aggravated assault , arson , kidnaping , or child sex abuse . The DSCC restraint construed , the as a prior kidnaping Montana under § conviction for 550 . 55 (b ) ( 4) (vi) . unlawful Dougherty Dec l aration , Att . 4 . At this point , the parties sought an order from this court authorizing a limited remand . On April 25 , 2013 , the court issued such an Order authorizing the parties to represent to the Court of Appeals that t his court would " entertain a limited remand for the purpose of determining the question whether the categorical offense of ' kidnapping' in the relevant program statement encompasses the petty offense of unlawful rest r aint under Montana law ." 3 - OPINION AND ORDER Based upon the representations of the parties, the Court of Appeals remanded the case to this court for further proceedings. On this limited remand , petitioner argues that he is eligible for the reduction in sentence benefit upon successful completion of his RDAP program because a prior conviction for the petty offense of unlawful "kidnaping" restraint under 28 under C . F . R. Montana § law does not 550.55(b)(4)(vi) , constitute one of the regulations implementing the sentence reduction program under 18 U.S.C. § 3621(e) . Respondents asks the court to deny such habeas corpus relief because: the BOP ' s (1) the court lacks jurisdiction to review individualized determination regarding petitioner's ineligibility for RDAP's early release benefit; and (2) any claim that the BOP ' s early release decision violates the Constitution or exceeds statutory authority lacks merit . 1 DISCUSSION Petitioner asks this court to revisit the BOP's determination that his prior conviction in Montana for unlawful restraint was sufficiently similar to kidnaping to preclude him from the early release benefit of RDAP. definition, or He principally takes lack thereof , of "kidnaping" in issue with the relation to 28 The court need not address the parties ' dispute as to whether petitioner's prior claim that his exclusion from RDAP based on an outstanding warrant is now moot. The court has already issued its ruling on the merits of that claim and, to the extent petitioner believes this claim was not mooted by the BOP's decision to enroll him in RDAP , he may challenge this court's decision on appeal . 4 - OPINION AND ORDER C . F . R. 550 . 55(b) (4) (vi) , one of the regulations implementing the sentence reduction program under 18 U. S.C. 3621(e) . This court lacks jurisdiction to revisit such individualized determinations made pursuant to 18 U.S . C . Thomas , lack 636 F . 3d 1224 , jurisdiction to § 3621 . See 18 U. S . C . 1227 - 28 (9th Cir . 2011) review the BOP ' s determinations made pursuant to 18 U. S . C . § 3625 ; Reeb v. § ("federal courts individualized RDAP 3621 " ). While review of the BOP's individualized determinations are not re viewable under the Administrative Procedures Act , habeas corpus review " remains available for allegations that BOP action is contrary to established federal law , vio lates the United states Constitution , or exceeds its statutory authority . . . . " F . 3d at 1228 (footnote omitted). Reeb , 636 In this regard, petitioner argues that he had a right to be considered for early release , but the BOP ' s promulgation of a categorical exclusion of inmates from early release based upon the classification of their conviction (as opposed to any individualized determination) means the BOP simply failed to consider him for early release. While petitioner is correct that he has a right to consideration for early release , Cort v . Crabtree , 113 F. 3d 1081 , 1085 (9th Cir . 1997) , the BOP did consider him for that benefit and specifically found him to have a prior conviction which precluded his early release because , in its estimation, the conviction amounted to a kidnaping . 5 - OPINION AND ORDER In this way , petitioner is actually attempting to challenge an individualized determination . Although petitioner promulgation § of 550 . 55 (b) ( 4) , its also purports categorical to challenge exclusions the Ninth Circuit under the BOP ' s 28 C . F . R. specifically recognized that regulation to be a proper exercise of the BOP ' s discretion. v. Thomas , Peck 697 F . 3d 767 , 773 - 743 (9 th Cir . 2012). Petitioner next argues that due process concerns are implicated by the BOP ' s decision to disqualify petitioner from the early release benefit of RDAP. interest in early release. Inmates of Neb . Penal Peck, and Corr . However, there 697 F.3d at 774 ; Complex , 442 U. S . is no liberty Greenholtz v . 1, 7 (1979). Consequently, petitioner cannot prevail on a due process claim. Petitioner also claims that the BOP ' s decision violates his constitutional right to equal protection because inmates with prior convictions for simple assault are presumably treated more favorably than those who have been convicted of unlawful restraint . This does not show that petitioner is being treated differently than other inmates who are similarly situated , because assault and kidnaping are distinct crimes which are not sufficiently similar to implicate equal protection concerns . 1176 , 1185 (9 th Cir. 1999) McLean v . Crabtree , 173 F . 3d (petitioner must show that he was treated differently from others similarly situated). reasons , the court denies habeas corpus relief . 6 - OPINION AND ORDER For all of these CONCLUSION For the reasons identified above , the Amended Petition for Writ of Habeas Corpus (#11) is denied . IT IS SO ORDERED. DATED this ~day of September , 2013 . 0/Y:N~ United States District Judge 7 - OPINION AND ORDER
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