Moreno v. Ives, No. 3:2018cv00505 - Document 10 (D. Or. 2018)

Court Description: OPINION AND ORDER: I ADOPT Judge Russo's F&R 4 . Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 1 is DISMISSED for lack of jurisdiction. I decline to issue a Certificate of Appealability because petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Signed on 6/26/2018 by Judge Ann L. Aiken. (ck)

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Moreno v. Ives Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION IRVIN MORENO, Case No. 3:18-cv-00505-JR OPINION AND ORDER Petitioner, vs. RICHARD B. IVES, Respondent. AIKEN, Judge: On May 4, 2018, Magistrate Judge Russo filed her Findings and Recommendation ("F&R"), recommending that I deny petitioner Irvin Moreno's § 2241 petition for a writ of habeas co1pus. The matter is now before me pursuant to 28 U.S.C § 636 and Federal Rule of Civil Procedure 72. I review de nova those po1tions of the F&R to which plaintiff filed objections. 28 U.S.C. § 636(b)(l)(C); Fed. R. Civ. P. 72(b)(3); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004). Relying on Reeb v. Thomas, 636 F.3d 1224 (9th Cir. 2011), Judge Russo concluded that this Comt lacked jurisdiction to review the Bureau of Prison's ("BOP") deteimination that petitioner was ineligible for a sentence reduction upon completion of the residential drug abuse program ("RDAP"). In Reeb, the petitioner was kicked out ofRDAP after "exhibiting disruptive 1 - OPINION AND ORDER Dockets.Justia.com behavior in counseling sessions on several occasions[.]" 636 F.3d at 1225. The petitioner sought a writ of habeas corpus under 28 U.S.C. § 2241, requesting readmission to RDAP and the twelve-month sentence reduction that the BOP has discretion to award successful RDAP graduates. Id. at 1226; see also 18 U.S.C. § 3621(e)(2)(B). The Ninth Circuit dismissed the § 2241 petition, holding that it lacked jurisdiction to review the BOP's discretionary decision to expel the petitioner from RDAP. Reeb, 636 F.3d at 1228. That decision hinged on 18 U.S.C. § 3625, which unambiguously states that a decision under § 3621(e)(2)(B) is not subject to judicial review under the Administrative Procedures Act. Id. In Reeb, the Ninth Circuit noted that federal comis retain authority to review BOP actions to determine whether the agency has exceeded its statutory authority. Id. In his objections to the F&R, petitioner asserts that he is raising that type of challenge. Petitioner's argument concerns the interplay between 18 U.S.C. § 3584(c), 18 U.S.C. § 3621(e)(2)(B), and 28 C.F.R. § 550.55(b)(5)(ii). 18 U.S.C. § 3584(c) requires "[m]ultiple tenns of imprisonment ordered to run consecutively or concurrently" to "be treated for administrative purposes as a single, aggregate te1m of imprisonment." 18 U.S.C. § 3621(e)(2)(B) gives the BOP discretion to reduce a prison sentence following an inmate's successful completion of the RDAP program. Promulgated pursuant to the authority provided by that statute, 28 C.F.R. § 550.55(b)(5)(ii) makes an inmate ineligible for early release if he has a "current felony conviction for . . . [a]n offense that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives[.]" See Peck v. Thomas, 697 F.3d 767, 772-73 (9th Cir. 2012) (holding that the BOP did not exceed its statutory authority in promulgating§ 550.55(b)(5)(ii)). Petitioner was serving a term of supervised release following a term of imprisonment for being a felon in possession of a fireaim when he committed a controlled substance offense. He 2 - OPINION AND ORDER was sentenced to six months for violation of the terms of his supervised release and sixty months for the controlled substance offense. Pursuant to § 3584(c), the BOP aggregated those sentences and treated them as a single sentence for administrative purposes. While incarcerated, petitioner completed RDAP. The BOP denied him a sentence reduction because it deemed the felon-inpossession conviction a "current" conviction under 28 C.F.R. § 550.55(b)(5)(ii), rendering petitioner ineligible for a reduction in his sentence. Petitioner argues that the BOP "exceeded its statutory authority in interpreting" § 3584(c) to mean that both his firemm and controlled-substance convictions were relevant offenses under 28 C.F.R. § 550.55(b)(5)(ii). Obj. F&R 1. But the BOP did not exceed its authority under 28 U.S.C. § 3584(c); it did what the text of that statute unambiguously required by aggregating petitioner's sentences and treating them as a single sentence for administrative purposes. The BOP's interpreted 28 C.F.R. § 550.55(b)(5)(ii) to encompass both convictions underlying his aggregated sentence. But that interpretation, like the promulgation of § 550.55(b)(5)(ii) itself, was an exercise of discretion under 18 U.S.C. § 3621(e)(2)(B)-an act that this Court lacks jurisdiction to review. Reeb, 636 F.3d at 1228. This Court's authority to review BOP decisions is constrained by Congress. Congress has expressly stated that a decision regarding individual eligibility for a post-RDAP reduction in sentence is not subject to judicial review. 18 U.S.C. § 3625. I find no error in Judge Russo's reasoning. Accordingly, I ADOPT Judge Russo's F&R (doc. 4). Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (doc. 1) is DISMISSED for lack of jurisdiction. I decline to issue a Certificate of Appealability because petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). 3 - OPINION AND ORDER IT IS SO ORDERED. Dated this)0_ day of June 2018. AnnAiken United States District Judge 4 - OPINION AND ORDER

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