Allen v. Atkinson
Filing
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MEMORANDUM OPINION & ORDER: 1) 1 Petition for writ of habeas corpus is DENIED. 2) Action is DISMISSED and STRICKEN from the Court's docket. 3) Judgment shall be entered with this Memo Opinion and Order. Signed by Judge Joseph M. Hood on 5/12/2016.(SCD)cc: Pro Se Petitioner via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JASPER TUJUIAN ALLEN,
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Petitioner,
V.
KENNY ATKINSON,
Respondent.
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Civil No. 5: 16-CV-142-JMH
MEMORANDUM OPINION
AND ORDER
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Jasper Tujuian Allen is an inmate confined at the Federal
Medical Center in Lexington, Kentucky.
On March 18, 2016, Allen
filed a pro se “motion to compel” pursuant to 28 U.S.C. § 1361 and
28 U.S.C. § 1651 in the Eastern District of North Carolina.
1]
[R.
On May 11, 2016, that Court construed Allen’s motion as a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
and transferred it to this Court pursuant to 28 U.S.C. § 1631.
[R. 4]
In his petition, Allen indicates the Bureau of Prisons (“BOP”)
initially granted his request to participate in the Residential
Drug Abuse Program (“RDAP”), but later withdrew approval because
a
prior
conviction
ineligible,
an
capricious.
for
manslaughter
Court
petitions.
conducts
he
characterizes
an
initial
review
as
rendered
of
arbitrary
him
[R. 1]
The
action
involuntary
habeas
and
corpus
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).
A petition will
be denied “if it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief.”
Rule 4
of the Rules Governing § 2254 Cases in the United States District
Courts (applicable to § 2241 petitions pursuant to Rule 1(b)).
The Court evaluates Allen’s petition under a more lenient standard
because he is not represented by an attorney.
551 U.S. 89, 94 (2007).
Erickson v. Pardus,
At this stage of the proceedings, the
Court accepts the petitioner’s factual allegations as true and
construes all legal claims in his favor.
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
Allen’s petition must be denied.
categorically
excludes
from
First, 18 U.S.C. § 3625
judicial
review
discretionary
decisions made by the BOP pursuant to 18 U.S.C. § 3621-3524, which
includes RDAP eligibility determinations made under 18 U.S.C. §
3621(e)(2)(B).
Reeb v. Thomas, 636 F. 3d 1224, 1226-28 (9th Cir.
2011) (holding that 18 U.S.C. § 3625 precludes judicial review of
individualized RDAP determinations).
Allen’s challenge to the
BOP’s conclusion that his prior offense falls within one of the
categorical exclusions set forth in 28 C.F.R. § 550.55(b)(4), (5)
is
a
challenge
to
an
individualized
and
discretionary
determination, a decision that § 3625 prevents this Court from
reviewing.
Second, although Allen’s petition does not expressly
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challenge the BOP’s determination on constitutional grounds, any
such challenge would fail as a matter of law.
Cf. Standifer v.
Ledezma, 653 F.3d 1276, 1279 (10th Cir. 2011) (no constitutional
right to participate in RDAP).
As a final note, the BOP’s regulations implementing the RDAP
program provide that an inmate is categorically ineligible if he
has a prior felony or misdemeanor conviction for certain offenses,
including “Homicide (including deaths caused by recklessness, but
not
including
homicide)...”
deaths
caused
by
negligence
28 C.F.R. § 550.55(b)(4)(i).
or
justifiable
Allen suggests that
the BOP invoked this subsection as grounds to conclude that he was
ineligible to participate in the RDAP.
However, the BOP has recently adopted an important change to
the
pertinent
regulation,
which
will
limit
the
categorical
exclusion to “Inmates who have a prior felony or misdemeanor
conviction within the ten years prior to the date of sentencing
for their current commitment ...” 28 C.F.R. § 550.55(b)(4). Allen
indicates that his involuntary manslaughter conviction is 23 years
old.
[R. 1 at 1, R. 1-1 at 2]
If so, under the revised rule it
appears that his prior conviction will no longer result in a
categorical exclusion from the RDAP.
This change will become effective on May 26, 2016.
See 81
Fed. Reg. 24490-2 , 2016 WL 1625949 (Apr. 26, 2016) (“The Bureau
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modifies
this
language
to
clarify
that
we
intend
to
limit
consideration of ‘prior felony or misdemeanor’ convictions to
those which were imposed within the ten years prior to the date of
sentencing for the inmate's current commitment. By making this
change, the Bureau clarifies that it will not preclude from early
release
eligibility
those
inmates
whose
prior
felony
or
misdemeanor convictions were imposed longer than ten years before
the date of sentencing for the inmate's current commitment.”).
Therefore, if Allen reapplies to participate in the RDAP after May
26, 2106, the outcome may be different.
Allen is advised that should the BOP again deny his request
to participate in the RDAP, before he seeks habeas relief in
federal court he must exhaust his administrative remedies prior to
filing suit by using the BOP’s Inmate Grievance Program.
Fazzini
v. Northeast Ohio Correctional Center, 473 F.3d 229, 231 (6th Cir.
2006).
A petition filed before administrative remedies are fully
exhausted will be denied without prejudice.
Accordingly, IT IS ORDERED that:
1.
Jaspar Allen’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [R. 1] is DENIED.
2.
This action is DISMISSED and STRICKEN from the Court’s
docket.
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3.
Judgment shall be entered contemporaneously with this
Memorandum Opinion and Order.
This 12th day of May, 2016.
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