Thompson v. Loftness

Filing 24

ORDER ENTERED: The petition for habeas corpus is dismissed and all relief is denied. Petitioner's motion 20 to file supplemental reply is granted. Signed by Senior District Judge Richard D. Rogers on 6/7/2013. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KENNETH L. THOMPSON,
Petitioner,
v.

CASE NO. 12-3070-RDR

JON D. LOFTNESS,
Respondent.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2241. Petitioner has been incarcerated at the United States
Penitentiary, Leavenworth, Kansas, at the satellite camp facility at
all relevant times.
The court has examined the entire record, including the proposed
supplemental reply submitted by petitioner, and enters the following
findings and order.
Background
The federal Bureau of Prisons (BOP) provides substance abuse
treatment programs to offenders, including its Residential Drug Abuse
Program (RDAP). Certain inmates who complete the RDAP are eligible
for early release of up to one year. 18 U.S.C. § 3621(e). However,
the BOP has categorically excluded from such early release those
prisoners who have been given a prior sentence reduction under that
statute.
Petitioner previously was incarcerated under a federal sentence
of 120 months for Possession with Intent to Distribute Methamphetamine
in violation of 21 U.S.C. § 841(a)(1) imposed in the District of

Kansas. He was released on December 24, 2003, under early release
pursuant to 18 U.S.C. § 3621(e).
Petitioner presently is serving a 72-month sentence imposed in
February 20101 in the U.S. District Court for the Western District of
Missouri for Conspiracy to Distribute Fifty (50) Grams or More of
Methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841
(b)(1)(A). The sentencing court recommended that he receive “the
opportunity to participate in the 500 hour residential substance abuse
treatment program.” (Doc. 9, Attach. 1, Exs. A & B.) He came back into
federal custody on March 24, 2010, and he began to participate in RDAP
for the second time on December 1, 2011.
Discussion
A federal court may issue the writ of habeas corpus only where
the petitioner is “in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
The regulatory framework
In 1990, Congress directed the BOP to provide residential
substance abuse treatment to prisoners found to have a treatable
condition of substance addiction or abuse. See Crime Control Act of
1990, Pub.L.No. 101-647, § 2903, 104 Stat. 4789, 4913 (codified at
18 U.S.C. § 3621(b)).
In 1994, Congress enacted the Violent Crime Control and Law
Enforcement Act (VCCLEA), which added an incentive for participation
in this treatment by allowing the BOP the discretion to reduce the
sentence of an inmate who successfully completes treatment by up to
one year, provided the inmate was convicted of a nonviolent offense.

1

Petitioner states the offense occurred in 2008, that he entered a guilty plea on
May 27, 2009, and that he was sentenced on February 22, 2010. (Doc. 1, p. 1.)

See 18 U.S.C. § 3621(e)(2)(B).
The statute did not set eligibility criteria for early release,
and in May 1995, the BOP published an interim rule, effective in June
1995, that categorically excluded several groups of prisoners who
would not be considered for early release. 60 Fed. Reg. 27695 (May
25, 1995).
In December 2000, following notice and comment, the 1997 version
of the interim rule was finalized. 65 Fed. Reg. 80749. The rule appears
in 28 C.F.R. § 550.58.
In Lopez v. Davis, 531 U.S. 230 (2001), the Supreme Court examined
a challenge to 28 C.F.R. § 550.58, which sets out certain categorical
denials of early release eligibility, concerning the provision
eliminating from consideration those inmates whose convictions were
for “a felony attended by the carrying, possession, or use of a
firearm.” Id. at 232-33.

The Court held that “the agency’s

interpretation [of § 3621(e)] is reasonable both in taking account
of preconviction conduct and in making categorical exclusions.” Id.
at 242.
In late September 2003, the BOP issued its Program Statement (PS)
5331.01, governing early release procedures under § 3621(e). In this
document, the BOP set out the categories of inmates ineligible for
early release identified in § 550.58, and it also included another
category of ineligible inmates, namely, those inmates who previously
had received early release for completing RDAP.
On July 1, 2004, the BOP published a proposed rule to amend the
regulation to clarify that a prisoner would not be considered for a
second early release. 69 Fed.Reg. 39887-02 (July 1, 2004). The
proposed rule became final on January 14, 2009. 74 Fed.Reg. 1892-01.

The finalized rule appears in 28 C.F.R. § 550.55(b)(7)(2009).
Application
Petitioner challenges the BOP’s categorical exclusion from early
release eligibility of a prisoner who previously received a sentence
reduction for participation in RDAP. He asserts claims of violations
of due process and ex post facto protections, a violation of the
Administrative Procedure Act, and a claim that the BOP exceeded its
statutory authority in implementing the second-reduction bar. The
court has carefully considered the record and the relevant case law
and concludes the resolution of this matter is governed, in large part,
by Kyles v. Chester, 457 Fed.Appx. 780 (10th Cir. 2012).2

Petitioner Kyles committed a nonviolent offense in July 2007,
entered a guilty plea in December 2009, and was sentenced in June 2010.
He applied for the RDAP but was informed that he was not eligible for
a sentence reduction under § 3621(e) because he had received such a
reduction while incarcerated under an earlier sentence. Kyles filed
a petition for habeas corpus under § 2241 and argued the BOP unlawfully
applied the regulation to deny a second sentence reduction because
it took effect after the time of his offense in 2007.
The Tenth Circuit rejected this claim and found that the BOP’s
policy to deny a second sentence reduction was established in its
Program Statement 5331.01, which took effect in September 2003. On
July 1, 2004, the BOP published for comment the proposed amended

2

While the petitioner urges the court to apply the analysis in Henderson v. Sirmons,
285 Fed Appx. 558 (10th Cir. 2008), the court agrees that the Kyles decision, which
concerns the same categorical exemption presented by petitioner and which was
decided by the Tenth Circuit after its decision in Henderson, is persuasive.

regulation, 28 C.F.R. § 550.55, which included the second-reduction
bar. At that time, the BOP stated that the second-reduction bar was
not a new position, but rather a clarification of its existing policy.
69 Fed. Reg. 39887-02, 39889.
Following a period of notice and comment, the new regulation was
implemented on March 16, 2009. The BOP issued its P.S. 5331.02 on the
same day.
The Tenth Circuit found that petitioner Kyles had notice of the
BOP policy at the time of his 2007 offense, noting that at that time,
the BOP’s policy appeared in its P.S. 5331.01, effective in September
2003. Likewise, the Court noted that on July 1, 2004, the BOP published
for comment its proposed amended regulation containing the policy and
explained both that it was an existing policy and that there had not
been a second early release granted since the implementation of the
statute in July 1995. Kyles, 457 Fed.Appx. at 783. The Tenth Circuit
concluded that the amended regulation did not impose a greater burden
for the criminal offense than was in effect at the time of Kyles’s
offense. Id. For these reasons, the court rejected his ex post facto
claim.
Under the reasoning in Kyles, petitioner’s claim of an ex post
facto violation must fail. Like Kyles, petitioner committed his
offense well after the BOP published its amended regulation for notice
and comment, and the amended regulation did not increase the penalty
for petitioner’s crime.
Likewise, while petitioner appears to claim that the regulation

exceeds the statutory authority granted to the BOP by Congress in
§3621(e), the Tenth Circuit concluded in Kyles that the BOP’s
second-reduction bar does not conflict with § 3621(e). Kyles, 457
Fed.Appx. at 784-85 (stating that while eligibility to participate
in RDAP is defined by statute, sentence-reduction eligibility is
distinct and within the discretion of the BOP; under Lopez v. Davis,
the BOP may establish categorical exclusions so long as its decisions
are not arbitrary and capricious).
Next, to the extent petitioner asserts a denial of due process,
the court previously has held that there is no protected liberty
interest in early release. In Berchiolly v. Terrell, 2006 WL 1875514,
this court rejected a due process claim presented by a federal prisoner
who was found ineligible for early release following completion of
RDAP due to a two-point sentence enhancement based upon his possession
of a firearm. The court stated:
Petitioner has no liberty interest protected by the Due
Process Clause to a reduced sentence, and the statutory
language in § 3621(e) clearly does not mandate such a
reduction. Nor does petitioner’s full service of the
sentence imposed subject him to an atypical or significant
hardship for the purpose of establishing a protected
liberty interest. See Sandin v. Conner, 515 U.S. 472, 484
(1995)(liberty interest arises only if prisoner subjected
to “atypical and significant hardship … in relation to the
ordinary incidents of prison life.”) Berchiolly, 2006 WL
1875514, *2.
Finally, to the extent petitioner asserts a violation of the
Administrative Procedure Act (APA), the court construes the claim to
allege the BOP violated the APA by not providing a period of notice
and comment before the March 2009 implementation of its regulations.

Respondent contends the BOP in fact provided such a period when it
published for comment the proposed rule containing the
second-reduction bar on July 1, 2004. See 69 Fed.Reg. 39887-02 (July
1, 2004). The rule was finalized on January 14, 2009. See 74 Fed.Reg.
1892-01 (Jan. 14, 2009).
Petitioner was found ineligible for early release after the rule
was finalized, and his argument is without merit.
Conclusion
The court finds the decision to deny petitioner early release
eligibility is lawful and that his claim under § 2241 lacks merit.
Petitioner’s sentence has been properly executed.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed and all relief is denied.
IT IS FURTHER ORDERED petitioner’s motion to file supplemental
reply (Doc. 20) is granted.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:

This 7th day of June, 2013, at Topeka, Kansas.

S/ Richard D. Rogers
RICHARD D. ROGERS
U.S. Senior District Judge