Jones v. Tews et al

Filing 10

ORDER denying 1 Petition for Writ of Habeas Corpus filed by Kimberly Jones. Signed by Judge Charles R. Breyer on 10/24/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 10/25/2011)

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United States District Court
For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KIMBERLY JONES,

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Petitioner,

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No. C 10-5653 CRB (PR)
ORDER DENYING PETITION FOR A
WRIT OF HABEAS CORPUS

v.
RANDY TEWS, Warden,

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Respondent.

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Petitioner Kimberly Jones, a federal prisoner at the Federal Correctional Institution in

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Dublin, California (“FCI Dublin”), seeks a writ of habeas corpus pursuant to 28 U.S.C. §

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2241. Petitioner challenges the decision of the Bureau of Prisons (“BOP”) declaring her

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ineligible for early release after she completes the Residential Drug Abuse Program

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(“RDAP”). Petitioner’s ineligibility stems from the nature of a prior conviction. She

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challenges the discretion of the BOP to deny her the benefit of early release under 28 C.F.R.

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§ 550.55 as violative of the Administrative Procedure Act (“APA”) and the United States

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Constitution. Having considered the record and the relevant legal authority, the Court

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DENIES Petitioner’s application for a writ of habeas corpus.

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//

BACKGROUND

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RDAP is an intensive drug abuse treatment program for federal prisoners with

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documented substance abuse issues. 28 C.F.R. § 550.53 (2009); Reeb v. Thomas, 636 F.3d

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1224, 1225 (9th Cir. 2011). In an effort to combat prisoner substance abuse, Congress

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adopted the program by amending the federal sentencing statute. Arrington v. Daniels, 516

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F.3d 1106, 1109 (9th Cir. 2008). Prisoners can either apply directly to the program, or seek

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referral. Id. In response to the program’s under-utilization, Congress added an early release

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incentive to encourage prisoner participation. Id. Early release is discretionary. 18 U.S.C. §

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3621(e)(2)(B) (2010) (stating that “[t]he period a prisoner convicted of a nonviolent offense

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For the Northern District of California

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remains in custody . . . may be reduced”) (emphasis added).
Congress has given the BOP broad discretion to manage and regulate all federal penal

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institutions, which includes promulgating rules dictating which prisoners are eligible for

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early release under RDAP. Reeb, 636 F.3d at 1226. Using this discretionary power, the

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BOP enacted 28 C.F.R. § 550.55, which makes prisoners with certain current or prior

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convictions ineligible for release.

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Petitioner was convicted of federal bank fraud on July 10, 2009 and began her

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36-month sentence on August 10, 2009. Br. for Pet. (dkt. 1) at 1. At the sentencing hearing,

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the judge recommended that Petitioner participate in RDAP. Id. She was interviewed and

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approved for the program, and entered the program on April 4, 2010. Id. In late January

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2010, Petitioner was deemed ineligible for early release due to a prior conviction for

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attempted robbery. Ans. to Order to Show Cause (dkt. 8) at 4. Under 28 C.F.R. §

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550.55(b)(6), a prisoner who was previously “convicted of an attempt, conspiracy, or other

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offense which involved an underlying offense listed in paragraph (b)(4),” is not eligible for

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early release. Robbery is one of those underlying offenses. 28 C.F.R. § 550.55(b)(4).

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Petitioner learned of her ineligibility in August 2010, and filed this petition for a writ

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of habeas corpus on December 13, 2010. Br. for Pet. at 1. She claims that the BOP’s ruling

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is arbitrary and capricious under the APA and violative of federal law. Id.

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DISCUSSION

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A.

Standard of Review

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A writ of habeas corpus may extend to a prisoner “in custody in violation of the

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Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Review of the

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execution of a federal sentence is properly brought as a habeas petition under 28 U.S.C. §

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2241. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984).

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B.

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Legal Claims & Analysis
The BOP does not have unlimited discretion in how it chooses to operate the federal

prison system. The APA acts as a safeguard and allows anyone “suffering a legal wrong

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For the Northern District of California

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because of agency action” to bring suit. 5 U.S.C. § 702 (2011). A federal court can

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“determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706

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(2011). A court can also find an action unlawful and set it aside if it is “arbitrary, capricious,

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an abuse of discretion, or otherwise not in accordance with the law.” Id.

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The Ninth Circuit applied this standard in Arrington v. Daniels and set aside the

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BOP’s denial of a prisoner’s early release due to his prior conviction for possession of a

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firearm. 516 F.3d at 1112. The Ninth Circuit found the BOP’s definition of “non-violent

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offenses” to be arbitrary and capricious under the APA because no rationale existed for

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including possession of a firearm as a violent offense. Id. at 1112. The case prompted the

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BOP to promulgate a new regulation in 2009, currently codified at 28 C.F.R. § 550.55.

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But judicial review of agency actions must be “narrow” and “a court is not to

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substitute its judgment for that of the agency.” Motor Vehicle Mfs. Ass’n of U.S., Inc. v.

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State Farm Mut. Auto Ins. Co., 463 U.S. 19, 43 (1983). Further, the cause of action invoked

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under § 702 can be withdrawn if the relevant statute precludes judicial review. 5 U.S.C. §

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701(a) (2011). This revocation is determined by the statute’s express language, scheme,

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objectives, legislative history and the nature of the administrative action involved. Reeb, 636

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F.3d at 1226.

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By statute, Congress explicitly stated that “[t]he provisions of sections 554 and 555
and 701 through 706 of title 5, United States Code,” which allow for judicial review of
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agency actions, “do not apply to the making of any determination, decision, or order under

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this subchapter.” 18 U.S.C. § 3625 (emphasis added). The Ninth Circuit in Reeb construed

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this plain language to mean that “any substantive decision by the BOP to admit a particular

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prisoner into RDAP, or to grant or deny a sentence reduction for completion of the program,

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is not reviewable by the district court.” 636 F.3d at 1227 (emphasis added).

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Respondent argues that Reeb divests this Court of jurisdiction to entertain Petitioner’s

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application for a writ of habeas corpus under § 2241. Ans. at 5-6. To the extent that

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Petitioner asks for review of the BOP’s substantive decision to deny her early release,

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Respondent is correct. See Reeb, 636 F.3d at 1227-28. But Petitioner’s application

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For the Northern District of California

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specifically challenges the BOP’s decision as one that violates the APA and the Constitution,

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and these types of challenges are not precluded by Reeb: “[J]udicial review remains

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available for allegations that BOP action is contrary to established federal law, violates the

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United States Constitution, or exceeds its statutory authority.” Id. at 1228. This is supported

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by the contrast in the wording of 18 U.S.C. § 3625, which precludes review of any

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“determination, decision, or order,” with the wording of 5 U.S.C. § 706, which allows judges

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to set aside actions, findings, or conclusions “not in accordance with the law.”

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Petitioner’s claims that the BOP’s decision violates the APA and the United States
Constitution may proceed under § 2241.1
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Challenge Under the APA
Petitioner claims that the regulation the BOP promulgated in 2009 and applied

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to her in 2010, 28 C.F.R. § 550.55(b), violates the APA because it did not cure the

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deficiencies noted in Arrington. The claim is without merit.

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In Arrington, the Ninth Circuit held that the BOP’s former regulation’s failure to

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explicitly state a reasonable rationale for excluding prisoners with certain current and prior

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convictions was an arbitrary and capricious abuse of discretion under the APA. 516 F.3d at

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1116. The court noted that “[a] reasonable basis exists where the agency considered the

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Petitioner argues that, although she has not exhausted her administrative remedies, her
application for a writ of habeas corpus should proceed. Br. for Pet. at 2. Because Respondent waives
the failure to exhaust defense, ans. at 6 n.1, the Court need not address it.
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relevant factors and articulated a rational connection between the facts found and the choices

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made.” Id. at 1112.

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Unlike the regulation struck down in Arrington, the 2009 regulation applied to

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Petitioner was not an arbitrary and capricious abuse of discretion under the APA. The 2009

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regulation is expressly based on public safety concerns. In codifying the regulation, the

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committee identified crimes like “homicide, forcible rape, robbery, aggravated assault, arson,

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kidnaping or child sexual abuse” as “inherently violent [in] nature and particular[ly]

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dangerous to the public.” 74 Fed. Reg. No. 9 at 1894 (Jan. 14, 2009). As such, the BOP

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opted to deny early release to individuals convicted of such crimes, and of attempts to

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For the Northern District of California

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commit such crimes, because commission and attempts to commit such offenses “rationally

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reflects the view that such inmates displayed readiness to endanger the public.” Id. Simply

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put, the BOP reasoned that individuals convicted of certain crimes, and of attempts to

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commit certain crimes, “exhibit a particular dangerousness to the public and often entail

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violent or threatening elements that resonate with victims.” Id. These specific concerns,

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combined with the BOP’s extensive experience in dealing with prisoners, are a reasonable

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basis for excluding prisoners with prior convictions for certain violent crimes from early

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release because the record shows that the BOP “considered the relevant factors and

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articulated a rational connection between the facts found and the choices made.” Arrington,

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516 F.3d at 1112.

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The District of Oregon recently rejected an APA challenge to the 2009 regulation by a

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prisoner who had been denied a RDAP sentence reduction based on a prior robbery

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conviction. Moon v. Thomas, No. CV-10-1154-MO, 2011 WL 1299606, at **9-10 (D. Or.

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Apr. 1, 2011). The court found the public safety rationale articulated in the 2009 regulation

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was a reasonable basis for excluding prisoners with certain prior convictions. Id. at *10.

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And it further found that the BOP’s decision to exclude prisoners with prior convictions for

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robbery was consistent with Congress’ intent to make only individuals who had been

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“convicted of a nonviolent offense” eligible for a RDAP sentence reduction. Id. This court

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finds the District of Oregon’s reasoning persuasive and equally applicable to the exclusion of
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prisoners with prior convictions for attempted robbery. Cf. United States v. Saavedra-

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Velasquez, 578 F.3d 1103, 1110 (9th Cir. 2009) (California definition of attempted robbery

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qualifies as “crime of violence”); United States v. Harris, 572 F.3d 1065, 1066 (9th Cir.

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2009) (Nevada definition of attempted robbery qualifies as “crime of violence”).

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2.

Challenge Under the Constitution

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Petitioner proffers several constitutional challenges to the BOP’s decision to deny her

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early release. She specifically claims that her ineligibility under the pertinent regulation

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impinges upon her rights to due process, equal protection and to be free from double

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jeopardy. The claims are without merit.

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For the Northern District of California

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A prisoner’s due process rights are violated only if the government infringes upon a

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protected liberty interest. Meachum v. Fano, 427 U.S. 215, 223-24 (1976). Protected liberty

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interests are either inherently protected by the Due Process Clause, or created by statute or

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regulation. Sandin v. Conner, 515 U.S. 472, 477-78 (1995). No liberty interest inherently

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protected by the Due Process Clause is at issue here because it is well settled that “[t]here is

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no constitutional or inherent right of a convicted person to be conditionally released before

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the expiration of a valid sentence.” Greenholtz v. Inmates of the Neb. Penal & Corr.

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Complex, 442 U.S. 1, 7 (1979). Nor does the permissive language regarding early release in

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18 U.S.C. § 3621(e)(2)(B) create a protected liberty interest. McLean v. Crabtree, 173 F.3d

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1176, 1185-86 (9th Cir. 1999) (citing Jacks v. Crabtree, 114 F.3d 983, 986 n.4 (9th

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Cir.1997)). Petitioner’s due process claim fails because she does not have a protected liberty

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interest in RDAP participation or in the associated discretionary early release. See Reeb, 636

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F.3d at 1229 n.4; Jacks, 114 F.3d at 986 n.4.

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The Equal Protection Clause commands that all persons similarly situated be treated

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alike. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (Equal

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Protection Clause of Fourteenth Amendment); High Tech Gays v. Defense Indus. Security

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Clearance Office, 895 F.2d 563, 570-71 (9th Cir. 1990) (Equal Protection Clause of Fifth

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Amendment). Petitioner was denied early release on the basis of her prior conviction for

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attempted robbery. Her situation is entirely different from that of the two prisoners she
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refers to in her brief, both of whom have current convictions for weapons possession and

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were granted early release. Petitioner’s equal protection claim fails because she sets forth no

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facts whatsoever demonstrating that she was treated differently from others who were

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similarly situated. See Reeb, 636 F.3d at 1228 n.4; McLean, 173 F.3d at 1185.

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The constitutional guarantee against double jeopardy protects against (1) a second

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prosecution for the same offense after acquittal or conviction, and (2) multiple punishments

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for the same offense. See Witte v. United States, 515 U.S. 389, 395-96 (1995). Petitioner

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invokes the second clause, asserting that because she has already been convicted, sentenced,

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and served prison time for the prior attempted robbery, denial of the benefit of early release

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For the Northern District of California

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is unconstitutional additional punishment for this prior conviction. Petitioner’s claim is

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without merit because denial of a sentence reduction for her current conviction for bank

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fraud does not constitute additional punishment for her previous conviction for attempted

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robbery. Although petitioner’s sentence for bank fraud may be reduced under 18 U.S.C. §

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3621(e)(2)(B), the “Double Jeopardy Clause does not provide [her] with the right to know at

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any specific moment in time what the exact limit of [her] punishment will turn out to be.”

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United States v. DiFrancesco, 449 U.S. 117, 137 (1980). It is under this principle that no

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double jeopardy protection exists against revocation of probation and the imposition of

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imprisonment. Id. Like parole, the denial of early release is not the imposition of an

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additional punishment, but rather the denial of a privilege. See Moor v. Palmer, 603 F.3d

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658, 660 (9th Cir. 2010) (holding that denial of parole is not additional punishment for acts

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that led to denial of parole).

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CONCLUSION

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For the foregoing reasons, Petitioner’s application for a writ of habeas corpus is

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DENIED. The clerk shall enter judgment in favor of Respondent and close the file.
IT IS SO ORDERED.
Dated: Oct. 25, 2011
CHARLES R. BREYER
United States District Judge

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