Greene v. Daniels

Filing 21

ORDER Denied With Prejudice 1 Application for Writ of Habeas Corpus filed by Tyrone Greene by Judge Christine M. Arguello on 7/6/2011. (erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-00251-CMA
TYRONE GREENE,
Applicant,
v.
CHARLES DANIELS, Warden,
Respondent.

ORDER DENYING PETITION FOR HABEAS CORPUS

The matter before the Court is an Application For A Writ Of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. No. 1). The Court has determined it can resolve
the Application without a hearing.1
I. BACKGROUND
On August 14, 1998, Applicant was sentenced by the United States District Court
for the Southern District of New York in case number 1:96-CR-00534-002.2 He was
sentenced to 120 months incarceration for conspiracy to commit murder and 60 months
incarceration for use of a firearm in relation to a crime of violence, the counts to run

1

Blackledge v. Allison, 31 U.S. 63, 83 (1977); see also Jeter v. Keohane, 739 F.2d 257
n.1 (7th Cir. 1984) (“An evidentiary hearing is not necessary when the facts essential to
consideration of the constitutional issue are already before the court.”); 28 U.S.C. § 2243.
2

Resp. To Order To Show Cause (Doc. No. 18; May 18, 2011), attach. 1. Applicant
did not object to any of the exhibits or attachments in the Response. See, e.g., Rules Governing
Section 2254 Cases 7(c).

consecutively.3 He is currently housed by the Federal Bureau of Prisons (BOP) at the
United States Penitentiary in Florence, Colorado, and is projected to be released on
September 7, 2012.4
Typically, as an inmate nears the end of his sentence, the BOP arranges for
a transfer of the inmate to a Residential Reenty Center (RRC), or halfway house,5
in which the inmate begins to adapt to civilian life in a less-restrictive environment.
On April 27, 2011, Applicant was reviewed for RRC placement, and the BOP deemed
a period of 180 days sufficient to assist Applicant with his re-entry needs, including
search for employment and reintegration into the community.6
II. APPLICATION
Applicant initiated this action by filing pro se his 28 U.S.C. § 2241 Application on
January 31, 2011.7 This Court subsequently issued an Order To Show Cause to
Respondent on April 27, 2011.8 Respondent filed a response on May 18, 2011.9

3

Resp. (Doc. # 18), attach. 1.

4

Id.

5

RRC will be used in this Order to refer to any pre-release transition program Applicant
may be entitled to.
6

Id., Ex. A at ¶ 11; attach. 4.

7

Doc. # 1.

8

Doc. # 16.

9

Doc. # 18.
2

Applicant filed a letter with the Court on May 31, 2011, which will be treated as his
traverse.10
Applicant is challenging the BOP’s RRC determination as a violation of 18 U.S.C.
§ 3621(b) and the Second Chance Act of 2007. As filed, the Application claimed that
Respondent violated Applicant’s rights by not reviewing him for a RRC placement.
However, this claim is moot as Respondent completed the RRC review on April 27,
2011.
Instead, the Court liberally construes Applicant’s claim as alleging that he should
have been approved for the statutory maximum of twelve months of RRC placement,11
and the BOP’s decision otherwise is a violation of the Due Process clause of the Fifth
Amendment.
III. LEGAL STANDARD
A Section 2241 habeas proceeding is “an attack by a person in custody upon the
legality of that custody, and . . . the traditional function of the writ is to secure release
from illegal custody.”12 “A motion pursuant to § 2241 generally . . . [includes] such
matters as the administration of parole, computation of a prisoner’s sentence by prison
officials, prison disciplinary actions, prison transfers, type of detention and prison

10

Doc. # 20.

11

See 18 U.S.C. § 3624(c)(1).

12

McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (quoting
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)).
3

conditions.”13 “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence
rather than its validity . . . .”14
“A petition under 28 U.S.C. § 2241 . . . must be filed in the district where the
prisoner is confined.”15 Here, Applicant correctly filed his petition in the District of
Colorado, where he was incarcerated at the time of initial filing.
The Court must construe a pro se plaintiff’s “pleadings liberally, applying a less
stringent standard than is applicable to pleadings filed by lawyers. [The] court, however,
will not supply additional factual allegations to round out a plaintiff’s complaint or
construct a legal theory on plaintiff’s behalf.”16 The Court should not be the pro se
litigant’s advocate.17
IV. ANALYSIS
In 2007, Congress passed the Second Chance Act which provides that the BOP
“shall, to the extent practicable, ensure that a prisoner . . . spends a portion of the final
months of [a sentence] (not to exceed 12 months) under conditions that will afford that
prisoner a reasonable opportunity to adjust to and prepare for the reentry of that

13

Hernandez v. Davis, 2008 WL 2955856, at *7 (D. Colo. July 30, 1998).

14

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

15

28 U.S.C. § 2241(a); Bradshaw, 86 F.3d at 166.

16

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and
citations omitted).
17

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
4

prisoner into the community.”18 Prior to that enactment, the statue provided that
assignment to a halfway house under this provision would “not [ ] exceed 6 months.”
Thus, the Second Chance Act granted the BOP discretion to place soon-to-be-released
inmates into halfway houses for longer periods of time.
In order to effectuate this additional discretion, the BOP promulgated a policy by
which BOP “staff must approach every individual inmate’s assessment with the
understanding that he/she is now eligible for a maximum of 12 months pre-release
[RRC] placement.”19 At the same time, it noted that BOP “experience reflects [that]
inmates’ pre-release [RRC] needs can usually be accommodated by a placement of six
months or less.”20
In April 2011, after performing the necessary evaluation required by 18 U.S.C.
§ 3624(c)(6), BOP staff recommended that Applicant be placed in RRC for the final six
months of his sentence. Applicant disagrees with that conclusion, contending that he
requires a longer RRC placement, primarily because he will be released into an area of
the country (Texas) where he has limited job experience and social support.
The Court has interpreted Applicant’s claim as invoking the protection of the Due
Process clause of the Fifth Amendment. The Procedural Due Process clause ensures

18

18 U.S.C. § 3624(c)(1). The discussion of the Second Chance Act is adapted from
Judge Krieger’s dismissal order in Henderson v. Davis, No. 10-cv-00838-MSK, slip op. (D. Colo.
Nov. 8, 2010).
19

Resp. (Doc. #18), attach. 2 at 4.

20

Id.
5

that the government will not deprive a party of liberty or property without engaging in fair
procedures to reach a decision; the Substantive Due Process clause ensures that the
decision reached is not arbitrary or capricious.21 Applicant’s claim is interpreted to
contend that the BOP’s decision of less than twelve months of RRC placement was
improper based on the unique facts in his case.
The Court’s review of the BOP’s decision is necessarily a limited one. By statute,
the BOP is vested with broad authority to determine the length of a prisoner’s RRC
assignment.22 As long as the BOP properly followed the statutory guidelines and
related regulations, review of the final decision is inappropriate for a habeas court.23
The evidence here indicates that the BOP considered the five statutory factors
contained in 18 U.S.C. § 3621(b), determined the length of placement on an individual
basis, and recommended a length of stay that the BOP felt to be of sufficient duration to
provide the greatest likelihood of successful reintegration into the community.24 BOP
staff did not find unusual or extraordinary circumstances justifying a placement beyond
six months.25

21

Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000).

22

18 U.S.C. § 3624(c)(1) and (4).

23

Fournier v. Zickefoose, 620 F.Supp. 2d 313, 318 (D. Conn. 2009) (“[o]nce the court
has determined that the BOP did not exceed its authority in reaching its decision, it is beyond
the purview of the court to second guess the outcome.”).
24

18 U.S.C. § 3624(c)(6).

25

See Resp., attach. 3 at 3.
6

On this record, a six month RRC placement was an appropriate decision by the
BOP and within the scope of its authority and, thus, does not reflect a deprivation of
Applicant’s Procedural or Substantive Due Process rights.26 His federal sentence has
thus not been executed unlawfully, and he is not entitled to habeas relief.
V. ORDER
It is ORDERED that the Application For A Writ Of Habeas Corpus Pursuant to
28 U.S.C. § 2241 (Doc. No. 1; Jan. 31, 2011) is DENIED WITH PREJUDICE.
DATED at Denver, Colorado, this

6th

day of July, 2011.
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

26

See Henderson, No. 10-cv-00838-MSK, slip op. at 5-6; Bernard v. Roal, 716 F.Supp.
2d 354 (S.D.N.Y. 2010).
7