Jason Donald Selsor v. Felicia Ponce

Filing 6

ORDER SUMMARILY DISMISSING CASE by Judge Percy Anderson. (See document for details). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JASON DONALD SELSOR,

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Petitioner,

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v.
FELICIA PONCE, Warden,

Case No. CV 17-05206 PA (AFM)
ORDER SUMMARILY
DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS
(28 U.S.C. § 2241)

Respondent.

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INTRODUCTION

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Petitioner is incarcerated at the Federal Correctional Institution Terminal

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Island in San Pedro, California. On July 14, 2017, he filed a Petition for Writ of

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Habeas Corpus by a Person in Federal Custody (28 U.S.C. § 2241).

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Petitioner claims that officials at the Bureau of Prisons (BOP) abused their

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discretion in denying him a one-year reduction in his sentence upon his successful

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completion of a residential drug abuse program (RDAP). The BOP had denied the

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sentence reduction because petitioner had a disqualifying conviction for dealing in

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firearms without a license. (ECF No. 1 at 18.)

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As discussed below, the Petition is dismissed without prejudice because

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petitioner’s challenge to the BOP’s discretionary decision to deny him a sentence

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reduction upon completion of the RDAP is not subject to judicial review.

DISCUSSION

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Rule 4 of the Rules Governing Section 2254 Cases in the United States

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District Courts provides in pertinent part: “If it plainly appears from the face of the

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petition and any exhibits annexed to it that the petitioner is not entitled to relief in

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the district court, the judge shall make an order for its summary dismissal and cause

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the petitioner to be notified.” Rule 1(b) provides that the district court may apply

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this rule to “a habeas corpus petition not covered by” 28 U.S.C. § 2254, such as a

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habeas petition covered by 28 U.S.C. § 2241. See Lane v. Feather, 2013 WL

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3280212, at *1 (D. Or. Jun. 27, 2013) (“Pursuant to Rule 1(b) of the Rules

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Governing Section 2254 Cases, this court elects to apply Rule 4 to this 28 U.S.C.

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2241 action.”).

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Congress has delegated to the BOP the duty to provide appropriate substance

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abuse treatment for each prisoner the BOP determines has a treatable condition of

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substance addiction or abuse. 18 U.S.C. § 3621(b). To carry out this requirement,

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the BOP must make available residential drug abuse programs (RDAP) for eligible

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prisoners. 18 U.S.C. § 3621(e)(1). As an incentive for successful completion of

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the RDAP, the BOP may reduce a prisoner’s sentence by up to one year. 18 U.S.C.

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§ 3621(e)(2)(B). “Determining which prisoners are eligible to participate in RDAP

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is within the discretion of the BOP, as is the decision to grant or deny eligible

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prisoners sentence reductions upon successful completion of the program.” Reeb v.

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Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011).

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In 18 U.S.C. § 3625, Congress explicitly precluded judicial review of the

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BOP’s individualized RDAP decisions by excluding any “determination, decision,

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or order” made by the BOP pursuant to 18 U.S.C. §§ 3621-3624 from the

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provisions of the Administrative Procedure Act (which authorizes federal courts to

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hear actions involving a “legal wrong” suffered because of an agency action).

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Consequently, the BOP’s discretionary determinations in implementing the RDAP

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in individual cases are not subject to judicial review. See Reeb, 636 F.3d at 1227
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(“[A]ny substantive decision by the BOP to admit a particular prisoner into RDAP,

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or to grant or deny a sentence reduction for completion of the program, is not

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reviewable by the district court.”). It follows that petitioner’s claim that the BOP

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abused its discretion in his individual case by denying him the sentence reduction

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for completion of the program cannot be reviewed by the Court.

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Petitioner further contends that the BOP violated the law in denying him the

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sentence reduction because the BOP violated its own program statement about

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RDAP eligibility. (ECF No. 1 at 9.) Although federal courts may not review the

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BOP’s discretionary decisions in individual RDAP cases, it may review an

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allegation that a BOP action in this regard was unlawful. See Close v. Thomas, 653

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F.3d 970, 974 (9th Cir. 2011). This particular contention, however, is not subject to

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judicial review. “A habeas claim cannot be sustained based . . . upon the BOP’s

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purported violation of its own program statement because noncompliance with a

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BOP program statement is not a violation of federal law.” Reeb, 636 F.3d at 1227.

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Program statements are only interpretative guidelines that may be altered at will;

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they are not federal rules or regulations with the force of law. See id. The Court

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therefore cannot review petitioner’s argument that the denial of a sentence

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reduction in his case violated a BOP program statement. See id. (holding that the

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district court lacked jurisdiction to review a federal inmate’s claim that his

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expulsion from RDAP violated the BOP’s own program statement).

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Finally, although the BOP’s discretionary decisions in individual cases

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involving the RDAP, particularly decisions based on program statements, are not

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subject to judicial review, federal courts may still review federal regulations

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implementing § 3621 to determine whether they are consistent with the statute. See

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Abbott v. Federal Bureau of Prisons, 771 F.3d 512, 514 (9th Cir. 2014). In this

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case, the BOP explained to petitioner that he was being denied a sentence reduction

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in part because his conviction for dealing in firearms without a license made him

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ineligible under 28 C.F.R. § 550.55(b)(5)(ii)-(iii), which precludes early release for
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inmates with an offense involving the carrying, possession, or use of a firearm, or

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an offense that by its nature or conduct presented a serious potential risk of physical

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force against the person or property of another. (ECF No. 1 at 18.) Petitioner’s

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argument that a conviction for dealing in firearms without a license is not an

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offense involving the carrying, possession, or use of a firearm or an offense that

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presented a serious potential risk of physical force (ECF No. 1 at 9) is frivolous. A

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conviction under 18 U.S.C. § 922(a)(1)(A) requires proof of importing,

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manufacturing, or dealing in firearms or shipping, transporting or receiving

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firearms -- all of which necessarily involve possession of a firearm.

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Petitioner also appears to argue that a federal regulation that excludes him or

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other federal inmates from early release because they had convictions involving the

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carrying, possession, or use of a firearm is arbitrary and capricious because the

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regulation is not accompanied by any articulated rationale for the exclusion. (ECF

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No. 1 at 11.) Petitioner’s argument is squarely foreclosed by the Ninth Circuit’s

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decision in Peck v. Thomas, 697 F.3d 767, 772-73 (9th Cir. 2012), which held that

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the BOP’s exclusion of federal inmates with an offense involving the carrying,

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possession, or use of a firearm from a sentence reduction under the RDAP had been

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adequately supported by the BOP’s articulated rationale of the protection of public

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safety.
ORDER

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IT IS THEREFORE ORDERED that the Petition is summarily dismissed

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without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in

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the United States District Courts.

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LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: July 25, 2017

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PERCY ANDERSON
UNITED STATES DISTRICT JUDGE
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