Penalosa v. Warden

Filing 16

MEMORANDUM. Signed by Judge J. Frederick Motz on 1/6/2017. (c/m 1/6/17 bas, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ISMAEL PENALOSA,

#60167-060

Petitioner,

v
WARDEN, FCI, Cumberland,
Respondent.

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Civil Action No. JFM-15-3446

MEMORANDUM

Before the court is Ismael Penalosa's ("Petitioner") petition for writ of habeas corpus
filed pursuant to 28 U.S.C. g2241, challenging a determination

by the Bureau of Prisons

("BOP") that his completion of the Residential Drug Abuse Treatment Program ("RDAP") did
not render him eligible for early release pursuant to 18 U.S.c. g3621. C~40r"spondent,
Timothy S. Stewart, warden at the Federal Correctional Institution in Cumberland, Maryland
("FCI Cumberland),

by his counsel, has filed a motion to dismiss, or in the alternative for

summary judgment. (ECF 12-1). For reasons to follow, the case will be dismissed for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).

1

BACKGROUND
Respondent presents the following uncontroverted information in support of the motion
to dismiss. On September 22,2014, the United States District Court for the Northern District of
Ohio sentenced petitioner to a 70-month sentence with 4 years of supervised release for

I Petitioner was confined at FCI Cumberland when he filed this petition on November 12,2015.
He has since been
transferred to the Federal Correctional Institution in Milan, Michigan. Litigants have an affirmative duty to inform
the court of any change of address during the pendency of their actions. See Local Rule 102.l.b.iii. (D. Md. 2016).
To date, petitioner has failed to notify the court of his new address, and this action will also be dismissed for failure
to comply with local rules. Respondent's counsel notified the court of Petitioner's new address in Michigan. ECF
14.

conspiracy to distribute and possess with intent to distribute 100 kg. or more of marijuana,"
"conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine," and
"possession with intent to distribute 996.79 grams of cocaine," in violation of 21 U.S.C.
841(a)(l)

& (b)(1 )(B). ECF

1. After petitioner

was designated

SS

846,

to FCI-Cumberland

and

determined eligible to participate in RDAP, BOP staff conducted an offense review to determine
whether he would qualify for early release upon successful completion of the program. Because
petitioner had received a two-level specific offense characteristic

("SOC") enhancement

sentencing for possessing a dangerous weapon pursuant to U.S.S.G.

S

2D1.1(b)(l),

at

BOP staff

determined he did not qualify for early release. ECF 12-2. Petitioner disputes this determination.
He claims the BOP improperly found him ineligible for early release based on the "firearm
enhancement," because he was "neither charged with the firearm, nor was the firearm related to
the offense." ECF 1; see also ECF 4.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Rule 12(b)( 6) tests the sufficiency of the cause of
action. See Presley v. City a/Charlottesville,

464 F.3d 480,483 (4th Cir. 2006). A movant need

only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim
showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Rule 8(a)(2) still requires a
'showing,' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 n. 3, (2007). Although the court must accept as true all the factual allegations
contained in the complaint, legal conclusions drawn from those facts are not afforded such
deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice" to plead a claim.). A
complaint must allege "a plausible claim for relief." !d. at 679.

2

When reviewing a motion to dismiss, "[t]he court may consider documents attached to
the complaint, as well as documents attached to the motion to dismiss, if they are integral to the
complaint and their authenticity is not disputed." Sposato v. First Mariner Bank, No. CCB-121569,2013 WL 1308582, at *2 (D. Md. Mar. 28,2013); see CACI Int'l v. St. Paul Fire & Marine
Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed.R.Civ.P. 10(c) ("A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.").
Additionally, a federal court may take judicial notice of documents from prior court proceedings
and other matters of public record in conjunction with a Rule 12(b)( 6) motion to dismiss without
converting it into a motion for summary judgment. Philips v. Pitt Cnty. Mem. Hasp., 572 F.3d
176, 180 (4th Cir. 2009) (citing Papasan v. Allain, 478 U.S. 265, 268 n. 1 (1986)); Walker v.
Kelly, 589 F.3d 127, 139 (4th Cir. 2009); see also Fed.R.Evid.

201 (Judicial Notice of

Adjudicative Facts). With this standard in mind, the court will review petitioner's claims based
upon the unopposed record.
DISCUSSION
Habeas relief is available under 28 U.S.C. g224l when a prisoner is "in custody in
violation of the Constitution or laws or treaties of the United States." 28 U.S.C. g224l(c)(3);
Rose v. Hodges, 423 U.S. 19,21 (1975). Title 18 U.S.C. g362l(b) instructs the BOP to "make
available appropriate substance abuse treatment for each prisoner the BOP determines has a
treatable condition of substance addiction or abuse."

The statute provides for incentives for

prisoners to participate in a RDAP, including the possibility of an early release. It provides:
The period a prisoner convicted of a nonviolent offense remains in
custody after successfully completing a [drug] treatment program may
be reduced by the Bureau of Prisons, but such reduction may not be
more than one year from the term the prisoner must otherwise serve.
18 U.S.C. g362l(e)(2)(B)

(emphasis added).
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The language of

S 3621 (e)(2)

is permissive, stating that the BOP may grant inmates early

release. It does not guarantee eligible inmates early release. See Lopez v. Davis, 531 U.S. 230,
241 (2001) (BOP has "the authority but not the duty...

to reduce [a prisoner's]

term of

imprisonment); Pelissero v. Thompson, 170 F.3d 442, 444 (4th Cir. 1999); Zacher v. Tippy, 202
F.3d 1039, 1041 (8th Cir. 2000). The statute vests the BOP with discretionary authority to
determine when an inmate's sentence may be reduced. Thus, the BOP in its discretionary
authority established criteria for determining early release eligibility. See 28 C.F.R.

S

550.58

(2008).
Federal regulations permit the BOP to preclude an inmate from receiving early release if
that inmate has a current felony conviction for:
(i) an offense that has an element, the actual, attempted, or threatened use of
physical force against the person or property of another,
(ii) an offense that involved the carrying, possession, or use of a firearm or other
dangerous weapon or explosives (including any explosive material or explosive
device),
(iii) an offense that by its nature or conduct, presents a serious potential risk of
physical force against the person or property of another; or
(iv) an offense that by its nature or conduct involves sexual abuse offenses
committed upon minors.
28 C.F.R.

S 550.55(b)(5).

The statute does not define "nonviolent offense" or set forth criteria for eligibility for
early release. Pursuant to the broad delegation of authority to provide substance treatment
programs, the BOP promulgated regulations, codified at 28 C.F.R.

S

550.55, et seq. and issued

Program Statement 5162.05, Categorization of Offenses, to implement the statute and delineate
eligibility criteria. These criteria have been upheld as a valid exercise of agency discretion under
18 U.S.C.

S 621 (e)(2)(B).

See Lopez, 531 U.S. at 40; Cunningham v. Scibana, 259 F.3d 303,306
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(4th Cir. 2011); Minotti v. Whitehead, 584 F.Supp.2d 750 (D. Md. 2008).
BOP Program Statement 5162.05 provides guidance by listing the federal convictions
that are always precluded from early release, and those that may be precluded from early release
based upon whether the sentencing court adopted an enhanced base offense level or specific
offense characteristic.

Included on this list are offenses with a SOC enhancement

which

increases a defendant's base offense level by two if a dangerous weapon was possessed during
commission of that offense. See BOP Program Statement 5162.05(4)(b).

ECF 12-4 at 10. Such

is the case here.
Petitioner's

claim that he was wrongfully denied eligibility for early release under

93621(e) misunderstands

the discretionary provisions of the statute.

Even though an inmate

successfully completes the RDAP program, completion does not entitle him to early release
because 93621 creates no entitlement to early release. There is no constitutional or inherent right
of a convicted person to be conditionally released before the expiration of a valid sentence."
Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1,7, (1979); see
also O'Bar v. Pinion, 953 F.2d 74,84 (4th Cir. 1991) (a statute that creates only a hope about a
future discretionary

decision by prison administrators

is too speculative to create a liberty

interest). Further, petitioner does not claim the BOP abused its discretion by taking into account
impermissible

factors

in denying

him early release.

Accordingly,

the court will grant

respondent's motion to dismiss the petition.
CONCLUSION
For the reasons stated above, the court finds that the petition fails to state a claim that he
is in custody in violation of the Constitution or laws or treaties of the United States. A certificate
of appealability shall not issue because there has been "no substantial showing of the denial of a

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constitutional right." 28 U.S.C. S2253(c)(2).

Consequently, the petition will be dismissed in a

separate order to follow.

f-h'--/!lJ'ft

111jI'l

Date

-<

Jfrederick Motz
United States District Judge

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