Peete v. Outlaw

Filing 2

RECOMMENDED DISPOSITION recommending that the District Court summarily dismiss 1 Lashun Peete's Petition for Writ of Habeas Corpus with prejudice under Rule 4 of the Rules Governing Section 2254 Cases. 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 1/22/10. (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 L A S H U N PEETE, R e g # 18675-076 V S. NO. 2:10CV00008-BSM-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 Brian S. Miller. Any party may file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the o b je c tio n . If the objection is to a factual finding, specifically identify that finding and the e v id e n c e that supports your objection. An original and one copy of your objections must b e received in the office of the United States District Court Clerk no later than fourteen (1 4 ) days from the date you receive the Recommended Disposition. A copy will be f u rn is h e d to the opposing party. Failure to file timely objections may result in waiver of th e right to appeal questions of fact.

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 O n January 19, 2010, Petitioner filed a pro se petition for a writ of habeas corpus (d o c k e t entry #1) under 28 U.S.C. § 2241. Petitioner is serving an fifty-seven month s e n te n c e in the Bureau of Prisons ("BOP") after pleading guilty to two counts of being a f e lo n in possession of a firearm, in violation of 18 U.S.C. § 922(g). (#1 at p. 3) In his petition, Petitioner claims that under 18 U.S.C. § 3621(e), he is eligible for a re d u c tio n in his sentence because he successfully completed a residential drug abuse p ro g ra m . (#1 at p. 6-7) Petitioner claims BOP regulations, which disqualify him from e a rly release because his underlying offense involved a firearm, violate the A d m in is tra tiv e Procedures Act. O n March 26, 2009, the Eighth Circuit decided a similar case, Gatewood v. O u tla w , 560 F.3d 843 (8th Cir. 2009). In Gatewood, as in this case, the habeas petitioner c la im e d BOP regulations disqualifying prisoners from early release after successful c o m p le tio n of a residential drug abuse program violate the Administrative Procedures A c t. The Court disagreed, however, and affirmed the District Court's dismissal of the h a b e a s petition. In doing so, the Court rejected the Ninth Circuit's analysis in Arrington v . Daniles, 516 F.3d 1106 (9th Cir. 2008) and held that the BOP's regulations do not v io la te the Administrative Procedures Act. Gatewood v. Outlaw, 560 F.3d 843 (8th Cir.

2009). The United States Supreme Court denied certiorari and denied a petition for re h e a rin g in Gatewood. (#16) See Gatewood v. T.C. Outlaw, 560 F.3d 843, cert. denied, 1 3 0 S.Ct. 490 (2009), petition for rehearing denied, 2010 WL 58841 (Jan. 11, 2010). In this petition, Petitioner asks the Court to grant him eligibility for early release b a s e d upon his completion of the BOP's residential drug abuse program. Petitioner c la im s the BOP's regulations denying him eligibility for early release violate the A d m in is tra tiv e Procedures Act. The Gatewood decision is dispositive. Petitioner pled g u ilty to an offense under 18 U.S.C. § 922(g) involving possession of a firearm. Under 28 C.F.R. § 550.55(b)(5)(ii) and BOP Program Statement 5162.05 1 , Petitioner is in e lig ib le 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 F o r the reasons set forth above, the Court recommends that the District Court s u m m a rily dismiss Lashun Peete's petition for writ of habeas corpus (#1) with prejudice u n d e r Rule 4 of the Rules Governing Section 2254 Cases.2 D A T E D this 22nd day of January, 2010.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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. Rule 4 of the Rules Governing Section 2254 Cases is applicable to petitions filed under 28 U.S.C. § 2241. See Rule 1(b) of the Rules Governing Section 2254 Cases.
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