Nicholas v. Outlaw

Filing 11

RECOMMENDED DISPOSITION recommending that the District Court dismiss the 2 Petition for Writ of Habeas Corpus with prejudice. Objections to R&R due by 6/24/2009. Signed by Magistrate Judge Beth Deere on 6/10/09. (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 D E W A Y N E NICHOLAS R e g . #18318-074 V S. CASE NO.: 2:08CV000112 SWW/BD PETITIONER

T .C . OUTLAW, Warden, FCC, Forrest City, Arkansas 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

RESPONDENT

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 1

II.

B ackground: Petitioner is currently serving a one-hundred-seventeen-month sentence in the

B u re a u of Prisons ("BOP") after pleading guilty to possession of materials used to m a n u f a c tu re a controlled substance in violation of 21 U.S.C. § 843 and possession of a f ire a rm in relation to the drug offense in violation of 18 U.S.C. § 924(c). On June 9, 2 0 0 8 , Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 (docket e n try #2) claiming that under 18 U.S.C. § 3621(e) he is entitled to eligibility for a re d u c tio n in his sentence upon his completion of a residential drug abuse program. (#2 at p .4 ) On July 3, 2008, the District Court entered an order (#8) granting Petitioner's m o tio n to stay his petition pending a decision by the Eighth Circuit Court of Appeals in G a te w o o d v. Outlaw, 560 F.3d 843 (8th Cir. 2009). Petitioner moved to lift the stay after th e Eighth Circuit rendered its decision in Gatewood, and the District Court granted the m o tio n . (#9, #10) 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. He contends that th e Gatewood decision is not dispositive of his claims. Petitioner claims that the BOP wrongly has deemed him ineligible for early release u p o n completion of the program because of his conviction under 18 U.S.C. § 924(c), and th a t the Eighth Circuit decision in Sesler v. Pitzer, 110 F.3d 569 (8th Cir. 1997) is

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dispositive. (#9 at p. 2) Sesler v. Pitzer, 110 F.3d 569 (8th Cir. 1997), cert. denied, 522 U .S . 877 (1997), overruled on other grounds, Hohn v. U.S., 262 F.3d 811 (8th Cir. 2001). In Sesler, the defendant pleaded guilty to using a firearm while committing a drug tra f f ic k in g crime in violation of 18 U.S.C. § 924(c)(1). Id. at 570. Upon completion of a re s id e n tia l drug abuse program, Mr. Sesler petitioned the BOP for a one-year sentence re d u c tio n under 18 U.S.C. § 3621(e)(2)(B), which provides eligibility for sentence re d u c tio n for prisoners "convicted of a nonviolent offense."1 Id.; 18 U.S.C. § 3 6 2 1 (e )(2 )(B ) (emphasis added). The BOP denied the sentence reduction request on the g ro u n d that he was not eligible because he had been convicted of a violent offense. Id. Mr. Sesler filed a habeas petition challenging the BOP's decision, and the Eighth Circuit u p h e ld the district court's decision denying relief. After reviewing the elements n e c e s s a ry to prove a conviction of an offense under § 924(c)(1), the Court concluded that a n offense under 18 U.S.C. § 924(c) is "clearly not a nonviolent offense within the m e a n in g of § 3621(e)(2)(B)"; thus Mr. Sesler was not eligible for a sentence reduction b a s e d on his completion of the program. Id. at 572.

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1 8 U.S.C. § 3621(e)(2)(B) provides in relevant part:

P e rio d of custody.-The period a prisoner convicted of a nonviolent offense re m a in s in custody after successfully completing a treatment program may b e reduced by the Bureau of Prisons, but such reduction may not be more th a n one year from the term the prisoner must otherwise serve. 3

Petitioner concedes that, under the holding in Sesler, the relief he seeks is not a v a ila b le . (#9 at p. 2) Like Mr. Sesler, Petitioner pleaded guilty to an offense under 18 U .S .C . § 924(c), which the Eighth Circuit held to be violent offense. Id. Accordingly, P e titio n e r is not eligible for a sentence reduction under 18 U.S.C. § 3621(e). III. C o n c lu s io n B a se d on the Eighth Circuit's ruling in Sesler, the Court recommends that the D is tric t Court dismiss the petition with prejudice. D A T E D this 10th day of June, 2009.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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