Lanier v. Outlaw

Filing 11

RECOMMENDED DISPOSITION recommending that the District Court dismiss the petition with prejudice. Objections to R&R due no later than 14 days from the date you receive the Recommended Disposition. Signed by Magistrate Judge Beth Deere on 1/19/10. (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 K E I T H LANIER R e g . #32552-044 V S. CASE NO.: 2:08CV000114 WRW/BD PETITIONER

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

RESPONDENT

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 William R. Wilson, Jr. 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.

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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 twenty-four months of supervised release after serving a th irty-m o n th sentence in the Bureau of Prisons ("BOP") after pleading guilty to being a f e lo n in possession of a firearm in violation of 18 U.S.C. § 922(g). (Docket entry #2 at p. 3 ) On June 10, 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 1, 2008, the Court entered an order (#8) 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. 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. 2

(#9) 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. (#10) In his motion to lift the stay, Petitioner again asks the Court to grant him eligibility f o r early release from supervision based upon his completion of the residential drug abuse p ro g ra m . He acknowledges that the Gatewood decision is dispositive but claims the E ig h th Circuit erred in rejecting the Ninth Circuit's analysis in Arrington. Petitioner pled guilty to an offense under 18 U.S.C. § 922(g) involving possession o f a firearm. Under 28 C.F.R. § 550.55(b)(5)(ii) and BOP Program Statement 5162.05,1 P e titio n e r is ineligible for a reduction in his sentence under 18 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

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DATED this 19th day of January, 2009.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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