Davis v. Outlaw

Filing 41

MEMORANDUM OPINION AND ORDER dismissing petition for writ of habeas corpus with prejudice. Signed by Magistrate Judge Beth Deere on 11/25/08. (bkp)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION J O H N M. DAVIS R e g . #84034-012 v. CASE NO.: 2:08CV00072 BD R ESPO N D EN T P E T IT IO N E R

T .C . OUTLAW, W a rd en , FCI- Forrest City

M E M O R A N D U M OPINION AND ORDER A ll parties consented to disposition of this case by a Magistrate Judge (docket e n try # 23). For the reasons that follow, Petitioner's petition for writ of habeas corpus (# 2 ) is dismissed with prejudice. I. B a c k gro u n d : P e titio n e r John M. Davis pled guilty to possession of a firearm which had the m a n u f ac tu re r's serial numbers removed or obliterated after the firearm had been tra n sp o rte d in interstate or foreign commerce, under 18 U.S.C. § 922(k), in the United S tate s District Court for the Western District of Oklahoma. Petitioner was sentenced to s ix ty months in the Bureau of Prisons ("BOP") and is currently incarcerated at the Federal C o rr e c tio n a l Complex (Low) in Forrest City, Arkansas ("FCC-FC").

P e titio n e r brings this habeas petition seeking relief under 28 U.S.C. § 2241.1 He c laim s that the is being "denied due process" because Respondent refuses to admit him in to the Residential Drug Abuse Program ("RDAP) at FCC-FC. If Petitioner successfully c o m p le te s the RDAP, he would be eligible for early release. Respondent contends that, under its policies, Petitioner is not eligible to participate in the program because he does not have documents in his central file to corroborate a d rug abuse problem. In his response, Petitioner argues the BOP's policies are u n r e a so n a b le . II . Analysis: A. T h e RDAP

The BOP offers the RDAP to inmates identified as having a substance abuse p ro b le m . As an incentive for successful completion of the program, Congress enacted 18 U .S .C . § 3621(e), which allows the BOP to reduce nonviolent offenders' sentences by up to one year upon completion of the program. 18 U.S.C. § 3621(e)(2)(B). The BOP has broad authority, under the federal regulations, to manage the e n ro llm e n t of prisoners in drug abuse treatment programs. See 28 C.F.R. § 550.53 (p ro v id in g that upon interviewing a new inmate and reviewing his or her records, the B O P ' s drug abuse treatment staff will make an appropriate drug treatment referral); 28

Respondent does not argue that Petitioner has not exhausted his administrative re m e d ies . Accordingly, the Court is assuming, without deciding, that Petitioner has fully e x h a u ste d . 2

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C .F .R . § 550.54(a)(1)(iii) (denying district courts the authority to order a defendant's p a rtic ip a tio n in a prison drug rehabilitation program); 28 C.F.R. § 550.56(b) (allowing the d ru g abuse treatment coordinator to decide whether an inmate is placed in a residential d ru g abuse treatment program); 28 C.F.R. § 550.56(d)(2) (giving the drug abuse treatment c o o rd in a to r the authority to remove an inmate from a program if the inmate behaves d i s r u p t i v e l y) . U n d e r 18 U.S.C. § 3621(e)(5)(B), an "eligible prisoner" is defined as a prisoner w h o is "(i) determined by the Bureau of Prisons to have a substance abuse problem; and (ii) willing to participate in a residential substance abuse treatment program." Under 28 C .F .R . § 550.56(a), the inmate must have a verifiable, documented, drug abuse problem. T h e BOP retains broad discretion to determine who among those statutorily eligible in m a te s are appropriate candidates for early release. Grove v. Federal Bureau of Prisons, 2 4 5 F.3d 743, 747 (8th Cir. 2001) (citing Bellis, 186 F.3d 1092,1094 (8th Cir. 1999)). The BOP has issued Program Statements regarding the RDAP including a "Drug A b u s e Programs Manual, Inmate." Program Statement No. 5330.10, § 5.4.1s(a) provides th a t , "program staff shall determine if the inmate has a substance abuse disorder by first c o n d u c tin g the Residential Drug Abuse Eligibility Interview followed by a review of all p e rtin e n t documents in the inmate's central file to corroborate self-reported information." P ro g ra m Statement No. 5330.10, § 5.4.1s(a). The inmate must meet the diagnostic c rite ria for substance abuse or dependence indicated in the Diagnostic and Statistical

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M a n u e l of the Mental Disorders, Fourth Edition, (DSM-IV). Id. Additionally, there must b e verification in the Presentence Investigaton (PSI) report or other similar documents in th e inmate's central file which supports the diagnosis. Id. "Any written documentation in th e inmate's central file which indicates that the inmate used the same substance, for w h ic h a diagnosis of the abuse or dependence was made via the interview, shall be a c ce p te d as verification of a drug abuse problem." Program Statement 5330.10, CN-01, M ay 17, 1996, Ch. 5, p. 4. (emphasis in original). B. D u e Process

In order to obtain relief under 28 U.S.C. § 2241, a petitioner must allege and d e m o n s tra te that he is "in custody in violation of the Constitution or laws or treaties of the U n ite d States." 28 U.S.C. § 2241(c)(3). The only constitutional argument raised by P e titio n e r is a due process issue. To support a due process claim, Petitioner must e s ta b lis h an infringement of a protected liberty interest. Ragan v. Lynch, 113 F.3d 875, 8 7 6 (8th Cir. 1997) (citing Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2 7 0 5 (1972)). Petitioner claims that because 18 U.S.C. § 3621(e) provides an opportunity for a re d u c ed sentence after completion of the RDAP, the statute creates a liberty interest for p u rpo ses of due process. However, the Constitution does not itself afford a prisoner a lib e rty interest in a reduced sentence, and the United States Supreme Court has held that a c o n v ic te d person has no constitutional or inherent right to be conditionally released

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b e f o re the expiration of a valid sentence. See Greenholtz v. Inmates of Nebraska Penal & C o r r e c tio n a l Complex, 442 U.S. 1, 7, 99 S.Ct. 2100 (1979); see also Sandin v. Conner, 5 1 5 U.S. 472, 487, 115 S.Ct. 2293 (1995) (possibility of early release is not a liberty in te re s t) . Further, 18 U.S.C. § 3621(e) provides that the BOP may reduce an inmate's s e n te n c e upon completion of the program. Under the statute, the BOP maintains d is c re tio n not to reduce the sentence. Accordingly, there is no vested liberty interest on w h ic h to base a due process claim. See Richardson v. Joslin, 501 F.3d 415, 420 (5th Cir. 2 0 0 7 ); Hunnicutt v. Hawk, 229 F.3d 997, 1001 (10th Cir. 2001); Trobaugh v. Hawk, 19 F ed .A p p x . 461, 462 (8th Cir. 2001) (per curiam). B e c au s e Petitioner does not have a protected liberty interest, the Court need not a s s e s s the reasonableness of the BOP's policies regarding admission to the RDAP. Considering the facts of this case, however, Respondent's denial of Petitioner's a p p lic a tio n for admission to the RDAP appears reasonable. Petitioner has not provided th e BOP any documents from its central file to corroborate a current drug problem. Petitioner was out of prison for six years prior to his current incarceration. The PSI for h i s current sentence does not mention Petitioner's use of addictive substances.2

The parties have not provided the Court with the Petitioner's PSI for his current s e n te n c e. However, in a pleading recently filed with the Court that entered the judgment a n d commitment order in which Petitioner seeks a recommendation to the RDAP, he a d m its that a drug abuse problem "was left out of his 2006 PSI (Oklahoma)." United S ta tes v. Davis, CR 5:06CR00169-M-1, docket entry #60 filed Oct. 31, 2008. 5

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P e titio n e r points to a PSI from a conviction in the United States District Court for th e Central District of California in October, 1986 as "documentation" supporting his s e lf -re p o rte d , drug problem. However, Respondent's rejection of the PSI as evidence c o rro b o ra tin g a current drug problem is reasonable considering the PSI is from more than n in e years prior to his current conviction. III. C o n c lu s io n : P e titio n e r does not have a protected liberty interest in admission to the RDAP in o rd e r to establish a due process violation. Accordingly, the petition for writ of habeas c o rp u s (#2) is dismissed with prejudice. IT IS SO ORDERED this 25th day of November, 2008.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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