Banks v. Outlaw et al

Filing 12

RECOMMENDED DISPOSITION recommending that the District Court dismiss the petition with prejudice. Objections to R&R due by 6/22/2009. Signed by Magistrate Judge Beth Deere on 6/8/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION E R I C J. BANKS R e g . #17473-045 V S. CASE NO.: 2:08CV00084 SWW/BD RESPONDENTS PETITIONER

T .C . OUTLAW W a r d e n , FCC, Forrest City, Arkansas, et al.

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 C o u rt Judge Susan Webber Wright. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of yo u r objections must be received in the office of the United States District Court Clerk no la te r than eleven (11) days from the date you receive the Recommended Disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. M a il 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 ackground Petitioner is currently serving a five year sentence in the Bureau of Prisons

(" B O P " ) after pleading guilty to conspiracy to distribute fifty grams or more of m e th a m p h e ta m in e . (Docket entry #2 at p. 13) On March 17, 2008, the BOP notified P e titio n e r of his eligibility for its residential drug abuse program. At the same time, the B O P notified Petitioner that, according to its current assessment, he would not be eligible f o r early release upon completion of the program because his sentence was enhanced for h is possession of a firearm during the offense. (#2 at p. 18) On May 9, 2008, Petitioner filed a petition for writ of habeas corpus under 28 U .S .C . § 2241 (#1) claiming he is entitled to be eligible for a reduction in his sentence u p o n completion of the residential drug abuse program. On July 3, 2008, the District C o u rt entered an order (#9) granting Petitioner's motion to stay his petition pending a d e c is io n by the Eighth Circuit Court of Appeals in a similar case, Gatewood v. Outlaw, 560 F.3d 843 (8th Cir. 2009). Petitioner moved to lift the stay after the Eighth Circuit re n d e re d its decision in Gatewood, and the District Court granted the motion. (#10, #11) In his motion to lift the stay, Petitioner again asks the Court to grant him eligibility f o r early release upon completion of the residential drug abuse program. The Eighth C irc u it's decision in Gatewood, however, precludes the Court from granting Petitioner th e requested relief. Id. at 844. In Gatewood, the Eighth Circuit rejected the petitioner's a rg u m e n t and held that 28 C.F.R. § 550.581 and BOP Program Statement 5162.04 are not

1

T h e relevant portion of 28 C.F.R. § 550.58 is now found at 28 C.F.R. § 550.55.

arbitrary and capricious in violation of the Administrative Procedures Act. In so holding, th e Eighth Circuit declined to follow the Ninth Circuit Court of Appeals' holding in A rr in g to n v. Daniels, 516 F.3d 1106 (9th Cir. 2008). 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. D A T E D this 8th day of June, 2009.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE