Riddle v. Outlaw et al

Filing 18

RECOMMENDED DISPOSITION recommending that the District Court dimsiss the 2 Petition for Writ of Habeas Corpus with prejudice. Objections to R&R due no later than 14 days from the date the Recommended Disposition is received. Signed by Magistrate Judge Beth Deere on 1/20/10. (hph)

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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 A C K I E L. RIDDLE R e g # 17056-045 VS. NO. 2:08-CV-00081-SWW-BD PETITIONER T .C . OUTLAW, Warden, Federal Correctional Complex, F o r r e st City, Arkansas R ESPON D EN T R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h e following recommended disposition has been sent to United States District J u d g e Susan Webber Wright. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n fourteen (14) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. 1 Mail your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B a c k g r o u n d and Discussion Petitioner is serving an eighty-four month sentence in the Bureau of Prisons (" B O P " ) after pleading guilty to conspiracy to manufacture and distribute in excess of f if ty grams of methamphetamine, in violation of 21 U.S.C. 841(a)(a), 841(b)(1)(B), and 8 4 6 , and criminal forfeiture in violation of 21 U.S.C. 853. (Docket entry #2 at p. 13) On May 8, 2008, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. 2241 (#2), claiming that under 18 U.S.C. 3621(e), he is eligible for a reduction in his s e n te n c e because he successfully completed a residential drug abuse program. (#2 at p. 4) On July 7, 2008, the Court entered an order (#13) granting Petitioner's motion to s ta y his petition pending a decision by the Eighth Circuit Court of Appeals in Gatewood v . Outlaw, 560 F.3d 843 (8th Cir. 2009). On March 26, 2009, the Eighth Circuit a f f irm e d the District Court's dismissal of the Gatewood habeas petition. Id. In that case, th e Court rejected the Ninth Circuit's analysis in Arrington v. Daniles, 516 F.3d 1106 (9th C ir. 2008) and held that the BOP's regulations, which disqualify prisoners whose offense in v o lv e s firearms from early release after successful completion of a residential drug a b u s e program, do not violate the Administrative Procedures Act. 2 Petitioner has now moved to lift the stay and reopen his case after the United S ta te s Supreme Court denied certiorari and denied a petition for rehearing in Gatewood. (#16) See Gatewood v. T.C. Outlaw, 560 F.3d 843, cert. denied, 130 S.Ct. 490 (2009), p e titio n for rehearing denied, 2010 WL 58841 (Jan. 11, 2010). The District Court g ra n te d the motion to reopen the case and referred the case to this Court for re c o m m e n d e d disposition. (#17) In his motion to lift the stay, Petitioner again asks the Court to grant him eligibility f o r early release based upon his completion of the residential drug abuse program. He a c k n o w le d g e s that the Gatewood decision is dispositive but claims the Eighth Circuit e rre d in rejecting the Ninth Circuit's analysis in Arrington. Petitioner pled guilty to offenses under 21 U.S.C. 841(a)(1), 841(b)(1)(B), and 8 4 6 , and at sentencing the Court enhanced Petitioner 's sentence for possession of a f ire a rm during the offense. Accordingly, under 28 C.F.R. 550.55(b)(5)(ii) and BOP P ro g ra m Statement 5162.05,1 Petitioner is ineligible for a reduction in his sentence under 1 8 U.S.C. 3621(e). Id. at 849. III. C o n c lu s io n B a se d on the Eighth Circuit's ruling in Gatewood, the Court recommends that the D is tric t Court dismiss the petition with prejudice. T itle 28 C.F.R. 550.55 became effective on March 16, 2009. On the same day, th e Bureau of Prisons issued Program Statement 5162.05 and rescinded Program S ta te m e n t 5162.04. 3 1 DATED this 20th day of January, 2010. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE 4

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