Porter v. Danham

Filing 13

ORDER: 1 Application for Writ of Habeas Corpus filed by Arnie Porter is DENIED. by Judge R. Brooke Jackson on 6/29/15. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 14-cv-02792-RBJ
ARNIE PORTER,
Applicant,
v.
DEBORAH DENHAM, Warden,
Respondent.

ORDER OF DISMISSAL

This matter is before the Court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Docket No. 1), filed pro se by Applicant Arnie Porter.
Respondent Warden has filed a Response to Order to Show Cause (Docket No. 11)
and Applicant has filed a Reply (Docket No. 12). Having considered the same, the
Court will deny the Application.
I. BACKGROUND
On September 24, 1997, a jury found Mr. Porter guilty of distribution of cocaine,
conspiracy to distribute crack cocaine, two counts of distribution of crack cocaine, and
mail fraud. United States v. Porter, No. 98-1199, 1999 WL 1116812, at *1 (10th Cir.
Dec. 6, 1999). Evidence presented at trial showed that Applicant was a high-ranking
member of a criminal organization known as the Gangster Disciples, through which he
purchased and distributed cocaine. Id. at *2. Additionally, witnesses testified that
Applicant financed the initial startup of this drug distribution network through a

fraudulent insurance claim, that he had at least ten people working for him cooking and
distributing crack cocaine, and that he received a portion of all the proceeds from these
sales. Id.
On April 24, 1998, Applicant was sentenced to two concurrent life sentences.
Id. His sentence was reduced to 360 months in June 2008, and then to 292 months in
December 2011, pursuant to 18 U.S.C. § 3582(c)(2). United States v. Porter, et al.,
Action No. 96-cr-444-EWN (JLK) (D. Colo.) (Docket Nos. 279, 314). Mr. Porter’s
current projected release date, via good conduct time, is January 17, 2008. (Decl. of
Regina Hufnagle, Docket No. 11-1, at ¶ 5; attach. 1, at 9).
Mr. Porter was originally incarcerated in U.S. Penitentiary Allenwood, a
high-security federal penitentiary. 1 (Docket No. 11-2). In September 2008, he was
transferred to a medium-security prison, and in May 2010, to a low-security prison. Id.
Applicant has been confined at FCI-Englewood, a low security prison, since August
2013. 2 (Id.).
The Bureau of Prisons (BOP) has designated Mr. Porter as having a Public
Safety Factor (PSF) of Greatest Severity Offense. (Docket No. 11-1, at ¶ 6). A PSF
consists of factual information regarding the inmate’s current offense, sentence,
criminal history or institutional behavior that requires additional security measures be
employed to ensure the safety and protection of the public. See BOP Program

1

See www.bop.gov/locations. The Court may take judicial notice of a government agency’s website.
See, e.g., N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 n. 22 (10th Cir. 2009)
(taking judicial notice of information about “the occurrence of Falcon releases” on “[t]he websites of two
federal agencies”).
.
2

See id.

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Statement (PS) 5100.08, Inmate Security Designation and Custody Classification,
Chapter 5, page 7. 3 The Greatest Severity Offense classification is assigned to “a
male inmate whose current term of confinement falls into the “Greatest Severity” range
according to the Offense Severity Scale (Appendix A).” Id.
http://www.bop.gov/policy/progstat/5100_008.pdf. Under the Offense Severity Scale,
the Greatest Severity rating is assigned to a drug offender whose current offense
involved the offender’s participation in an organizational network where he organized or
maintained ownership interest/profits from large scale drug activity. (PS 5100.08,
Appx. A, Page 1).

An inmate designated with a PSF of Greatest Severity Offense

must be housed “in at least a Low security level institution unless the PSF has been
waived.” (Id., Chapter 5, Page 7).
On January 1, 2014, Mr. Porter submitted an Inmate Request to Staff (cop-out)
seeking a waiver of his PSF. (Docket No. 11-1, at ¶8; attach. 3, at 13). Applicant’s
unit manager reviewed Applicant’s PSF and advised him in writing on January 3, 2014,
that his PSF of Greatest Security Offense was appropriate and he should remain at a
low level facility. (Id.).
Mr. Porter’s unit team conducted a custody classification review on January 25,
2014, and determined that his PSF of Greatest Severity precluded reduction of
Applicant’s classification, despite his clear conduct and active participation in
programming. (Docket No. 11-1, at ¶9; attach. 4, at 15). Applicant was scheduled for
another custody classification program review in January 2015. (Docket No. 11-1, at
3

See www.bop.gov/policy/progstat/5100_008.pdf.)

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¶ 9).
In the Application, Mr. Porter asserts that the BOP refused to take into account
all of the factors listed in 18 U.S.C. § 3621(b) during the custody classification program
review. Specifically, Applicant contends that the BOP failed to consider the statements
made by former District Judge Nottingham at the April 2008 resentencing, as required
by § 3621. (Docket No. 1, at 3). For relief, Applicant asks that Respondent be
ordered to transfer him “to a minimum custody level (or a Satellite Low),” or to
reconsider him for minimum custody level assignment, based on all of the factors set
forth in § 3621. (Id. at 6).
In response to an October 10, 2014 Order issued by Magistrate Judge Gordon P.
Gallagher, Respondent filed a Preliminary Response to the Application on October 28,
2014, advising the Court that Respondent did not intend to raise the affirmative defense
of failure to exhaust administrative remedies. (Docket No. 6). This case was thereafter
drawn to the undersigned.
II. LEGAL STANDARDS
A. Habeas Corpus Actions
Habeas corpus review is available under § 2241 if an individual is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). “The essence of habeas corpus 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.” See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “A
petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its

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validity and must be filed in the district court where the prisoner is confined.” Bradshaw
v. Story, 86 F.3d 164, 166 (10th Cir.1996).
A prisoner who challenges the fact or duration of his confinement and seeks
immediate release or a shortened period of confinement must do so through an
application for habeas corpus. See McIntosh v. United States Parole Common, 115
F.3d 809, 811-12 (10th Cir. 1997). In contrast, a prisoner who challenges the
conditions of his confinement must pursue a civil rights action. Id. at 812; see also
Sandifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir.2011) (“It is well-settled law that
prisoners who wish to challenge only the conditions of their confinement ... must do so
through civil rights lawsuits ... not through federal habeas proceedings.”); see also
McIntosh, 115 F.3d at 811-12 (although a § 2241 attack on the execution of a sentence
may challenge some matters that occur at prison, such as deprivation of good-time
credits and other prison disciplinary matters, . . . this does not make § 2241 actions like
“condition of confinement” lawsuits, which are brought under civil rights laws.”).
B. Pro Se Litigant
Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings
and other papers liberally and hold[s] them to a less stringent standard than those
drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However,
a pro se litigant's “conclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir.1991). A court may not assume that an applicant can prove facts

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that have not been alleged or that a respondent has violated laws in ways that an
applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). The Applicant’s pro se status does
not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952,
957 (10th Cir. 2002).
III. ANALYSIS
A. Subject Matter Jurisdiction
Respondent first argues that the Court lacks subject matter jurisdiction over the
§ 2241 Application because Applicant’s claim that his BOP security classification
violates the Constitution and/or federal statute and his request for placement in a
minimum security facility challenge the conditions of his confinement.
“‘[A] request by a federal prisoner for a change in the place of confinement is
properly construed as a challenge to the conditions of confinement, and, thus, must be
brought pursuant to [Bivens].’” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir.
2012) (affirming district court’s denial, on jurisdictional grounds, of prisoner’s habeas
petition seeking transfer out of super-maximum security prison, and quoting United
States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006) (affirming district court’s
summary denial of motions seeking transfer to facilities located closer to their families)).
Applicant maintains that his claim is cognizable under § 2241 because he seeks
a “quantum change” in the level of custody, e.g., from a low security prison to a
minimum security prison.

(Docket No. 1, at 3).

Other circuit courts of appeal have recognized that a prisoner’s request for a

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quantum change in the level of custody may arise under § 2241. See, e.g., Woodall v.
Fed. Bureau of Prisons, 432 F.3d 235, 237 (3d Cir. 2005). In Woodall, the petitioner
challenged regulations limiting his placement in a Community Corrections Center
(“CCC”). Id. at 243-44. The Third Circuit noted that a CCC is not an ordinary penal
institution because CCCs “often include an employment component under which a
prisoner may leave on a daily basis to work in the community.” Id. at 243. Inmates
may also “be eligible for weekend passes, overnight passes, or furloughs.” Id. Thus,
“placement in a CCC represents more than a simple transfer.” Id. The Third Circuit
determined that such a challenge, which “crosses the line beyond a challenge to, for
example, a garden variety prison transfer,” is a challenge to the execution of the
prisoner's sentence and therefore properly brought under § 2241. Id. at 243-44.
In Falcon v. United States Bureau of Prisons, 52 F.3d 137, 138 (7th Cir.1995),
the Seventh Circuit held that if a prisoner seeks a “quantum change” in the level of
custody, such as more freedom, his remedy is a habeas corpus proceeding. However,
if the prisoner is seeing a different program or location or environment, then his
challenge is to the conditions of his confinement and his remedy is under the civil rights
laws. Id.
The Tenth Circuit has neither adopted nor rejected the standard set forth in
Woodall, but has distinguished the case on its facts. See Palma-Salazar, 677 F.3d at
1037. In McIntosh, the Tenth Circuit recognized the decision in Falcon, but did not
specifically approve or disapprove of the Seventh Circuit’s rule that a “quantum change”
in the level of custody was actionable under § 2241.

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Mr. Porter states in his Reply that his request for transfer from a low security
institution to a minimum security institution is similar to petitioner Woodall’s requested
transfer from prison to a CCC. (Docket No. 12). Applicant states that detention in a
minimum security facility “often entails the same components that are entailed for an
inmate detained in CCC.” (Id.). However, Applicant’s allegations are vague and are
insufficient to demonstrate that a transfer from FCI-Englwood to a minimum security
facility is not a “garden variety prison placement.” Palma-Salazar, 677 F.3d at 1037.
Accordingly, the Court finds that the § 2241 Application is subject to dismissal for
lack of subject matter jurisdiction because Applicant’s claim challenges his prison
security classification and the type of facility in which he is confined, thereby implicating
the conditions of his confinement, rather than the duration thereof.
However, even if Applicant’s allegations are cognizable under § 2241, the Court
finds that Applicant is not entitled to federal relief, for the reasons discussed below.
B. Due Process Claim
Applicant claims that the BOP has violated his due process rights because “[t]he
BOP refused to take into account all the relevant factors listed in § 3621(b),” during
review of his security classification in 2014. (Docket No. 1, at 2-3).
The “Due Process Clause protects persons against deprivations of life, liberty, or
property; and those who seek to invoke its procedural protection must establish that
one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005); see
also Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994) (stating that due process
protections apply only when a person is deprived of a liberty or property interest).

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Applicant does not assert that he has been deprived of life or property. The
Court thus considers whether Applicant has a constitutionally-protected liberty interest
in a reduction in his security classification so that he is eligible for placement in a
minimum-security facility. For a federal prisoner, a liberty interest may arise from
either the Due Process Clause or from federal law. See Fristoe v. Thompson, 144 F.3d
627, 630 (10th Cir.1998).
Decisions about where an inmate is confined and his security classification are
left to prison managers. See 18 U.S.C. § 4001(b) (vesting the authority to control and
manage federal correctional institutions and to classify inmates in the Attorney
General). The Constitution does not afford prisoners a liberty interest in a specific
security classification or in being incarcerated in a particular prison. See, e.g., Moody v.
Daggett, 429 U.S. 78, 88 n.9 (1976) (“Congress has given federal prison officials full
discretion to control [prisoner classification], and petitioner has no legitimate statutory or
constitutional entitlement sufficient to invoke due process.”); Meachum v. Fano, 427
U.S. 215, 224-225 (1976) (“[T]he Due Process Clause [does not] in and of itself protect
a duly convicted prisoner against transfer from one institution to another within the . . .
prison system.”).
To establish the existence of a liberty interest, Mr. Porter therefore must show
that application of BOP policies or regulations have subjected him to an “atypical and
significant hardship . . . in relation to the ordinary incidents of prison life,” see Sandin v.
Conner, 515 U.S. 472, 484 (1995), or that the government's action “will inevitably affect
the duration of his sentence.” Id. at 487. Applicant does not state specific facts in the

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Application or his Reply to satisfy either requirement. As such, Mr. Porter has not been
deprived of a liberty interest protected by the Fifth Amendment Due Process Clause.
C. BOP’s Compliance with 18 U.S.C. § 3621(b)
Mr. Porter also claims that his security classification review did not comply with
§ 3621(b) because prison officials refused to take into account the statements by
former District Judge Nottingham, in resentencing the Applicant in 2008. (Docket No.
1, at 3).
Section § 3621(b) provides, in relevant part:
(b) Place of imprisonment. – The Bureau of Prisons shall designate
the place of the prisoner's imprisonment. The Bureau may designate any
available penal or correctional facility that meets minimum standards of
health and habitability established by the Bureau, . . ., that the Bureau
determines to be appropriate and suitable, considering–
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the [sentencing] court– (A) concerning the purposes
[of the prison sentence]; or (B) recommending a type of penal or
correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission
pursuant to [28 U.S.C. § 994(a)(2) of title 28.]
18 U.S.C. § 3621(b).
Judicial review of the BOP’s substantive placement decisions under § 3621 is
not available under the Administrative Procedure Act (APA). See 18 U.S.C. § 3625
(“The provisions of . . . 701 through 706 of title 5, United States Code, do not apply to
the making of any determination, decision, or order under [18 U.S.C. §§ 3621-26].”);
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see also Redmon v. Wiley, No. 08-1288, 349 F. App’x 251, 256 (10th Cir. Oct. 13,
2009) (unpublished) (holding that the BOP’s decision not to admit inmate into its
residential drug abuse treatment program established under § 3621(c) was not subject
to judicial review under the APA). However, the Court may determine whether the BOP
exceeded its statutory authority in deciding Mr. Porter’s classification level. See Fristoe,
144 F.3d at 630-31 (“While § 3625 may preclude us from reviewing the BOP's
substantive decision in appellant's case, it does not prevent us from interpreting
[§ 3621(e)(2)(B)] to determine whether the BOP exceeded its statutory authority”)
(internal citations omitted); see also Renka v. Garcia, 2013 WL 2249222, at *4 (D. Colo.
May 22, 2013) (district court has jurisdiction to determine whether BOP exceeded its
statutory authority under §§ 3621(b) and 3624(c) in determining that a 180-day
placement in a Residential Re-entry Center was appropriate).
The record reflects that Mr. Porter’s unit team conducted a custody classification
review on January 25, 2014. (Docket No. 11-1, at ¶9). According to Ms. Hufnagle,
Applicant’s unit manager, the unit team considered Applicant’s Offense Conduct in his
original PSR–specifically, that Mr. Porter plotted to kill a police officer in retaliation for a
search warrant; he held a position of governor of the Gangster Disciples in the State of
Colorado; and, he attempted to a contract murder of a witness and co-defendant so
they could not testify against him in his original trial. (Id.). See also Porter, 1999 WL
1116812, at *2. The unit team also reviewed Applicant’s Amended Judgment and
Commitment Order dated June 5, 2008, and the Addendum to the PSR on Motion for
Sentence Reduction. (Id. at ¶ 10). In addition, the unit team took into account

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Applicant’s clear conduct record in prison and his participation in prison programs.
Despite Applicant’s positive institutional record, the unit team concluded that waiver of
Applicant’s PSF was not appropriate because of the serious nature of his offenses and
the need to protect the public safety. (Id. at ¶¶ 9, 10).
The Court finds that the BOP’s decision not to grant a waiver of Applicant’s PSF
Greatest Severity Offense designation was within the scope of the BOP’s statutory
authority, was an appropriate decision, and did not violate federal law. The BOP gave
individualized consideration to the statutory factors in conducting the 2014 review of
Applicant’s security classification, in accordance with the criteria set forth in § 3621(b).
No more is required. See, e.g., Renken, 2013 WL 2249222, at *5; Radick v. Federal
Bureau of Prisons, No. 11-cv-00298-DME, 2011 WL 2692951 at *3 (D. Colo. July 11,
2011).

Mr. Porter contends that the BOP did not consider all of the § 3621(b) factors

because the unit team failed to take into account the favorable statements made by
former District Judge Nottingham at the 2008 resentencing. 4 However, the record
demonstrates that Applicant’s unit team did consider Applicant’s efforts to better himself
while in prison, but determined that the nature and severity of his offense behavior
outweighed his post-offense conduct. In short, the BOP’s decision complied with §
3621(b).
The Court finds that Mr. Porter is not entitled to federal habeas relief for his

4

During the 2008 resentencing hearing, former District Judge Nottingham found that Mr. Porter was “not
the same man that stood before [him] ten years ago”; that he had engaged in rehabilitation efforts in
prison by working and continuing his education; and, that Applicant’s post-offense conduct was “unusual
and [did not] reflect the kind of hopeless attitude and depression that one might expect of a young man
who is serving the rest of his life in prison.” (Case No. 96-cr-00444-EWN (JLK), Transcript of
Resentencing Hrg., at Docket No. 289).

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claims challenging the BOP’s decision not to waive his PSF of Greatest Severity
Offense, which necessarily precludes his transfer to a minimum security facility.
IV. ORDERS
For the reasons set forth above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (Docket No. 1), filed pro se by Applicant Arnie Porter on October 10,
2014, is DENIED for lack of subject matter jurisdiction, or, in the alternative, on the
merits. It is
FURTHER ORDERED that the § 2241 Application is DISMISSED. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith See Coppedge v. United States, 369 U.S.
438 (1962). If Applicant files a notice of appeal he must also pay the full $505
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Dated June 29, 2015, at Denver, Colorado.
BY THE COURT:

R. Brooke Jackson
United States District Judge

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