Fry v. Barnhart

Filing 5

MEMORANDUM OPINION & ORDER: ORDERS as follows: 1. Petitioner Brian Fry's petition for a writ of habeas corpus [R. #1 ] is DENIED; 2. This matter is DISMISSED and STRICKEN from the Court's active docket; and 3. Judgment shall be entered contemporaneously herewith. Signed by Judge Gregory F. Van Tatenhove on 10/7/2019.(RBB)cc: COR, paper copy to petitioner, Brian Fry, via US Mail.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
BRIAN FRY,
Petitioner,
v.
WARDEN J.A. BARNHART,
Respondent.

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Civil Action No. 6:19-cv-210-GFVT

MEMORANDUM OPINION
&
ORDER

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This matter is before the Court on the 28 U.S.C. § 2241 petition and related documents
filed by Petitioner Brian Fry, an inmate at the Federal Correctional Institution—Manchester in
Manchester, Kentucky. Proceeding without an attorney, Fry challenges the Federal Bureau of
Prisons’s (“BOP”) calculation of his sentence. [R. 1.] Specifically, Fry contends that the BOP is
unconstitutionally denying him early release under 18 U.S.C. § 3621(e) and 28 C.F.R. §
550.55(b). For the reasons that follow, Fry’s petition will be DENIED.
In 2008, Fry pled guilty to a money laundering conspiracy in violation of 18 U.S.C. §§
1956(h) and 1956(a)(1)(B). See United States v. Fry, Case No. 6:07-cr-47-RAW (E.D. Okla.
2008), R. 405 therein. The Eastern District of Oklahoma sentenced Fry to a term of two hundred
forty months in prison. [Id.] According to Fry’s habeas petition, corrections officers at FCIManchester determined that Fry was eligible to participate in the Residential Drug Abuse
Program (“RDAP”), completion of which sometimes result in a shorter sentence. However, Fry
was told that, although he could participate in RDAP, he would be ineligible for a sentence
reduction upon RDAP completion. [R. 1-1 at 5.] Fry claims the BOP has arbitrarily revoked his
eligibility for a sentence reduction and, thus, has violated his right to procedural due process.

[Id.] Pursuant to 28 U.S.C. § 2243, Fry’s petition is now before the Court for a preliminary
screening.
Upon the Court’s initial screening, a § 2241 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 Fry’s petition under a more lenient
standard because he is proceeding without an attorney, and, at this stage of the proceedings, the
Court accepts his factual allegations as true and construes all legal claims in his favor. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 55556 (2007).
Despite the leniency afforded to pro se petitioners, the Court will deny Fry’s petition.
Pursuant to 18 U.S.C. § 3621(e)(2)(B), the BOP may reduce the length of incarceration for
certain nonviolent offenders as an incentive for their completion of a residential substance abuse
treatment program, such as RDAP. The BOP exercises discretion regarding whether to grant
RDAP graduates early release or modified conditions of confinement, and even when an inmate
successfully completes RDAP, the BOP still enjoys the discretion to deny that inmate early
release. See Lopez v. Davis, 531 U.S. 230, 241 (2001); Orr v. Hawk, 156 F.3d 651, 653-54 (6th
Cir. 1998).
Fry dedicates a portion of his petition to addressing whether his conviction for conspiracy
to commit money laundering was a violent or nonviolent offense [see, e.g., R. 1-1 at 5-7], but
that point is ultimately immaterial. An inmate’s ability to participate in RDAP and whether or
not that participation results in a reduction to the inmate’s sentence are matters solely committed
to the BOP’s discretion. 18 U.S.C. § 3621(e) “does not implicate a constitutionally-protected

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liberty interest because it does not mandate a sentence reduction.” Heard v. Quintana, 184 F.
Supp. 3d 515, 519 (E.D. Ky. 2016). Accordingly, Fry “has no liberty interest in discretionary
release from prison prior to the expiration of his or her sentence. Nor does a prisoner have a
liberty or property interest in participating in a prison rehabilitation program.” Id. (internal
citations omitted); see also Sesi v. U.S. Bureau of Prisons, 238 F.3d 423, 2000 WL 1827950, *2
(6th Cir. 2000) (noting same); Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011)
(same).
Finally, to the extent Fry contends the BOP failed to abide by its own regulations and
Program Statements [see R. 1-1 at 6-7], he is still not entitled to habeas relief. Prison regulations
are “primarily designed to guide correctional officials in the administration of a prison”, not to
“confer rights on inmates.” Sandin v. Conner, 515 U.S. 472, 481-82 (1995). An agency’s
alleged failure to adhere to its own policies does not on its own state a due process claim. See,
e.g., Bonner v. Federal Bureau of Prisons, 196 F. App’x 447, 448 (8th Cir. 2006) (“[A] violation
of prison regulations in itself does not give rise to a constitutional violation.”).
Accordingly, the Court hereby ORDERS as follows:
1.

Petitioner Brian Fry’s petition for a writ of habeas corpus [R. 1] is DENIED;

2.

This matter is DISMISSED and STRICKEN from the Court’s active docket; and

3.

Judgment shall be entered contemporaneously herewith.

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This the 7th day of October, 2019.

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