Harris v. Cross

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. IT IS HEREBY ORDERED that WARDEN CROSS shall answer the petition or otherwise plead on or before February 24, 2014. Signed by Chief Judge David R. Herndon on 1/23/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ELIZABETH HARRIS,
No. 32722-044,
Petitioner,
vs.

CIVIL NO. 14-cv-00006-DRH

WARDEN CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner Elizabeth Harris is in the custody of the United States Bureau of
Prisons (“BOP”), currently housed at the Federal Prison Camp in Greenville,
Illinois. According to the petition, Harris is serving a 130-month sentence for
possessing with intent to distribute methamphetamine.

The specifics of the

conviction and sentence are unknown to the Court. According to the Bureau of
Prisons,

Harris’s

projected

release

date

is

June

17,

2015.

See

www.bop.gov/Locate (last accessed Jan. 22, 2014).
Petitioner Harris is now before the Court pursuant to 28 U.S.C. § 2241,
seeking consideration for early release under the Residential Drug Abuse Program
(“RDAP”), 18 U.S.C. § 3621(e)(2)(B).

Petitioner was expelled from the RDAP

program on or about July 7, 2012—just weeks before she was due to complete
the year-long program. The stated reason for her expulsion was that Harris had
failed to complete the program due to relapse and her inability to utilize the
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coping strategies taught in the program (see Doc. 1, pp. 15, 28).

Petitioner

asserts that her expulsion from RDAP was an abuse of discretion and violation of
her constitutional right to equal protection. 1
More specifically, Harris asserts that she was discriminated against due to
her age and race.

Harris is white and 70 years old. She identifies 16 white

women over the age of 45 who have been expelled from RDAP during the past
year, when others have not been expelled, despite program violations. Harris also
takes issue with a variety of her specific alleged program failures.
According to the petition, Harris has utilized administrative remedies
without success.
Rule 4 of the Rules Governing Section 2254 Cases in United States District
Courts provides that upon preliminary consideration by the district court judge,
“[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” Rule 1(b) of those Rules
gives this Court the authority to apply the rules to other habeas corpus cases.
Discussion
The RDAP statute allows a prisoner’s sentence to be reduced by up to one
year upon completion of a residential substance abuse treatment program.

1

Because federal actors are involved, the Equal Protection Clause of the
Fourteenth Amendment is not strictly applicable. Instead, the Court looks to a
similar right to equal protection flowing from the Due Process Clause of the Fifth
Amendment. Markham v. White, 172 F.3d 486 (7th Cir. 1999) (citing Davis v.
Passman, 442 U.S. 228, 234 (1979) (collecting cases).
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A petition seeking habeas corpus relief is appropriate under 28 U.S.C. §
2241 when a petitioner is challenging the fact or duration of confinement. Preiser
v. Rodriguez, 411 U.S. 475, 490 (1973); Waletzki v. Keohane, 13 F.3d 1079,
1080 (7th Cir. 1994). The writ of habeas corpus may be granted where the
petitioner is in custody in violation of the Constitution or laws or treaties of the
United States. See 28 U.S.C. § 2241(c)(3).
It is well established that sentence reduction under RDAP is left to the
discretion of the BOP. See Lopez v. Davis, 531 U.S. 230, 241 (2001) (addressing
an earlier codification of 28 C.F.R. § 550.55(b)(5)(ii) (2009), 28 C.F.R. §
550.58(a)(1)(vi)(B) (2000)).

More recently, the Ninth Circuit reiterated that

individual decisions to deny early release under 18 U.S.C. § 3621 are not
reviewable, and are specifically exempted from judicial review under the
Administrative Procedure Act, 18 U.S.C. § 3625. Reeb v. Thomas, 636 F.3d 1224
(9th Cir. 2011). However, Reeb recognized the possibility for judicial review when
agency action is contrary to a constitutional right. Id. at 1228.
Plaintiff is asserting a violation of her constitutional right to equal
protection based upon her race, or a “class-of-one” theory.

See generally

Swanson v. City of Chetek, 719 F.3d 780, 783-84 (7th Cir. 2013) (explaining
differentiating between equal protection claims based on race, origin or sex, and
class-of-one claims where there is no rational basis for a difference in treatment).
Construing Harris’s pro se petition very liberally, a colorable equal protection
claim has been stated.

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The petition raises issues that cannot be conclusively decided at this
juncture.

There is insufficient information before the Court upon which to

conclude that dismissal at this preliminary stage pursuant to Rule 4 is
appropriate.

Therefore, Respondent Cross will be required to respond or

otherwise plead.
Disposition
IT IS HEREBY ORDERED that WARDEN CROSS shall answer the petition
or otherwise plead on or before February 24, 2014. 2 This preliminary order to
respond does not, of course, preclude the government from making whatever
waiver, exhaustion or timeliness it may wish to present. Service upon the United
States Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St.
Louis, Illinois, shall constitute sufficient service upon Respondent.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in her whereabouts during the
2

The response date Ordered herein is controlling. Any date that CM/ECF should
generate in the course of this litigation is a guideline only. See SDIL-EFR 3.
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pendency of this action. This notification shall be done in writing and not later
than seven days after a transfer or other change in address occurs.
IT IS SO ORDERED.
Signed this 23rd day of January, 2014.

Digitally signed by
David R. Herndon
Date: 2014.01.23
17:18:26 -06'00'
Chief Judge
United States District Court

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