Winkle v. Lake

Filing 27

ORDER that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed on July 27, 2015, is DENIED. (Doc. 1 ) It is further Ordered that Winkle's motion for summary judgment, filed on November 9, 2015, is DENIED. (Doc. 26 ) Winkle is not entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The Clerk is directed to prepare a judgment and close the case. Signed by Magistrate Judge Leslie A Bowman on 1/4/2016.(MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Allen Winkle,
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Petitioner,
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vs.
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S. Lake, Warden
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Respondent.
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No. CV-15-332-TUC-LAB
ORDER

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On July 27, 2015, David Allen Winkle, an inmate confined in the Federal Correctional

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Institution in Safford, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28,

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United States Code, Section 2241. (Doc. 1) Winkle argues a 180-day Residential Reentry

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Center (RRC) placement prior to his release would be insufficient. He believes an 11-month

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placement would be more appropriate.

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Winkle filed a supplement to his petition on September 16, 2015. (Doc. 12) The

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respondent filed an answer on October 16, 2015. (Doc. 23) Winkle filed a combined reply and

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motion for summary judgment on November 9, 2015. (Doc. 26)

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Magistrate Judge Bowman presides over this action pursuant to 28 U.S.C. § 636(c).
(Doc. 22)
The petition will be denied. The Bureau of Prisons’s decision making process was
proper pursuant to 18 U.S.C. § 3621(b).

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Background

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Winkle was convicted in the U.S. District Court for the Western District of New York

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of conspiracy to distribute one hundred kilograms or more of marijuana. (Doc. 23-1, p. 2) The

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trial court sentenced Winkle to a 60-month term of imprisonment and 4 years of supervised

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release. Id. The Bureau of Prisons (BOP) projects Winkle will complete his sentence on

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October 17, 2016, assuming he earns all available good time credits. Id., p. 5

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On February 19, 2015, Winkle’s case manager, Jeffery Smith, conducted an RRC

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placement assessment as mandated by the Second Chance Act of 2007. (Doc. 23-1, p. 3) Smith

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decided a 180-day placement in an RRC would be appropriate after considering the five factors

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described at 18 U.S.C. § 3621(b), which apply to all placement determinations. Id.; see also

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Rodriguez v. Smith, 541 F.3d 1180, 1186-87 (9th Cir. 2008). The Warden approved his

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recommendation on April 28, 2015. Id.
On July 7, 2015, Winkle filed the pending petition for writ of habeas corpus pursuant to

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28 U.S.C. §2241. (Doc. 1) He filed a supplement on September 16, 2015. (Doc. 12)

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Winkle claims (1) his Unit Team did not consider the five factors outlined in the Second

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Chance Act, (2) he was denied a “thorough and accurate individualized assessment of his

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transitional needs” as mandated by the Second Chance Act, (3) an 11-month RRC placement

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would improve his ability to successfully re-enter society due to his drug abuse history, and (4)

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an RRC placement would give him access to medical care that he cannot get at Safford and thus

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would reduce the likelihood of recidivism. (Doc. 1)

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Winkle filed a supplement to his petition on September 16, 2015. (Doc. 12) He argues

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the BOP’s recent recalculation of his sentence was done in retaliation for his filing this petition.

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Id.

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On October 16, 2015, the respondent filed an answer arguing the petition should be

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denied for failure to exhaust administrative remedies or, in the alternative, on the merits. (Doc.

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23) Winkle filed a combined reply and motion for summary judgment on November 9, 2015.

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(Doc. 26)

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The court finds the petition should be denied on the merits. The court does not reach the
respondent’s alternative arguments.
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Discussion

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Pursuant to the Second Chance Act of 2007, the BOP:

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shall, to the extent practicable, ensure that a prisoner serving a term of
imprisonment spends a portion of the final months of that term (not to exceed 12
months), under conditions that will afford that prisoner a reasonable opportunity
to adjust to and prepare for the reentry of that prisoner into the community. Such
conditions may include a community correctional facility.

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18 U.S.C.A. § 3624(c)(1).

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A Residential Reentry Center (RRC), formerly known as a Community Corrections

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Center or half-way house, is a low security facility that provides services and training designed

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for inmates who are soon to be released. Under the Second Chance Act, prisoners are

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automatically reviewed for RRC placement “17-19 months before their projected release dates.”

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Miller v. Whitehead, 527 F.3d 752, 756 (8th Cir. 2008).

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When considering whether RRC placement is appropriate for a particular prisoner, the
BOP must consider five factors:

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(1) the resources of the facility contemplated;

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(2) the nature and circumstances of the offense;

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(3) the history and characteristics of the prisoner;

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(4) any statement by the court that imposed the sentence--

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(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or

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(B) recommending a type of penal or correctional facility as appropriate;
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(5) any pertinent policy statement issued by the Sentencing Commission pursuant
to section 994(a)(2) of title 28.

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18 U.S.C.A. § 3621(b).
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In Claims (1) and (2), Winkle argues his Unit Team failed to consider the five statutory
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factors before concluding that a 180-day RRC placement prior to release would be sufficient.
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(Doc. 1, p. 4) Winkle believes an 11-month placement would be more appropriate. Id.
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In fact, the Unit Team did consider the five statutory factors. (Doc. 23-1, pp. 3-5) The
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Team decided that placement in an RRC in Northern California would be appropriate because
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Winkle has a sister living in the area. Id. The Team also considered the nature and

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circumstances of Winkle’s offense – conspiracy to distribute marijuana. Id. Because Winkle’s

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sentence, 60 months, is relatively short, the Team believed he would need fewer transitional

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services than other inmates. Id. The Team concluded that a 180-day placement would strike

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a good balance between Winkle’s needs and the BOP’s limited resources. Id.

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The Team also considered Winkle’s prisoner history. (Doc. 23-1, pp. 3-5) The Team

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noted that Winkle participated in educational programs during his incarceration. Id. On the

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other hand, Winkle has been disciplined for three incidents, “one of which was a greatest

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severity prohibited act and another that was a high severity prohibited act.” Id. “Winkle’s

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disciplinary history suggested caution in his placement recommendation, but it did not make

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him inappropriate for community placement.” Id. The Team further considered the trial court’s

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recommendation that Winkle serve his imprisonment as close as possible to Sheridan, Oregon.

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Id.

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The Unit Team met with Winkle on August 12, 2015 to discuss the recommendation and

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give Winkle an opportunity to be heard on the issue. Id. Winkle argued that a longer RRC

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placement would better accommodate his occupational training needs. Id. Case Manager

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Smith, however, felt that Winkle’s concerns did not justify a longer placement. Id. Contrary

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to Winkle’s argument, the BOP did consider the five statutory factors before deciding that

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Winkle should be placed in an RRC for only 180 days.

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In Claims (3) and (4), Winkle argues that his Unit Team failed to properly consider his

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history of drug addiction or his medical condition. In essence, he argues that if the Unit Team

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properly considered all of facts, it would have given him a longer placement term. The ultimate

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placement decision, however, is a matter left to the discretion of the BOP. This court does not

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have jurisdiction to second guess the BOP’s final judgment. Reeb v. Thomas, 636 F.3d 1224,

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1227 (9th Cir. 2011); English v. Ives, 2012 WL 4038495, at *6 (E.D. Cal. 2012).

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In his supplemental pleading, Winkle claims the BOP improperly took 44 days of good

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time credit away from him. (Doc. 12, p. 16) He argues the subsequent adjustment of his release

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date “has been done as retaliation for my filing of administrative remedies and my §2241 now
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before this court.” Id.

Contrary to Winkle’s argument, it appears that the BOP’s revised

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sentence calculation was proper.

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Winkle was sentenced on June 27, 2012. (Doc. 23-2, pp. 2-4) He was not, however,

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taken into custody immediately. Id. He was permitted to self-surrender on August 9, 2012. Id.

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The BOP originally calculated Winkle’s sentence assuming it began on June 27, 2012,

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the sentencing date. (Doc. 23-2, pp. 2-4) That was error. The correct commencement date for

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Winkle’s sentence was August 9, 2012, the date he was taken into custody. Id.; see also 18

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U.S.C. § 3585. Recently, the BOP caught this error and corrected Winkle’s sentence

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calculation. Id. Winkle’s projected release date has been pushed back 43 days. Id. Contrary

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to Winkle’s assertion, this adjustment has nothing to do with his good time credits.

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It appears that the new calculation is correct. Id. Aside from Winkle’s unsupported

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speculation, there is no indication that this new calculation was undertaken in retaliation for his

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filing this petition.

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IT IS ORDERED that the petition for writ of habeas corpus pursuant to 28 U.S.C. §
2241, filed on July 27, 2015, is DENIED. (Doc. 1)

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IT IS FURTHER ORDERED that Winkle’s motion for summary judgment, filed on

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November 9, 2015, is DENIED. (Doc. 26) Winkle is not entitled to judgment as a matter of

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law. See Fed.R.Civ.P. 56(a).

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The Clerk is directed to prepare a judgment and close the case.
DATED this 4th day of January, 2016.

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