BROWN v. SHARTLE

Filing 9

OPINION. Signed by Chief Judge Jerome B. Simandle on 11/5/2014. (nz, )N.M

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ABDULLAH ROBERT BROWN,
Petitioner,
v.
JT SHARTLE,
Respondent.

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Civil No. 14-457 (JBS)

OPINION

APPEARANCES:
Abdullah Robert Brown, Pro Se
42463-054
FCI Fairton
P.O. Box 420
Fairton, NJ 08320
Elizabeth A. Pascal
Assistant United States Attorney
Camden Federal Building and U.S. Courthouse
401 Market Street
Camden, NJ 08101
Attorney for Respondent
SIMANDLE, Chief Judge
Abdullah Robert Brown (“Petitioner”), an inmate incarcerated
at FCI Fairton in New Jersey, filed a Petition for a Writ of Habeas
Corpus, pursuant to 28 U.S.C. § 2241 (Docket Item 1), and a Motion
for Summary Judgment (Docket Item 7). Respondent answered the

Petition, but did not oppose the Motion. For the following reasons,
this Court dismisses the Petition and the Motion.1
BACKGROUND
Under 18 U.S.C. § 3624(c)(1), as amended by the Second Chance
Act of 2007, Pub. L. No. 110-199, April 9, 2008 (“the Second Chance
Act”), “The Director of the Bureau of Prisons shall, to the extent
practicable, ensure that a prisoner serving a term of imprisonment
spends a portion of the final months of that term (not to exceed 12
months), under conditions that will afford that prisoner a reasonable
opportunity to adjust to and prepare for the reentry of that prisoner
into the community. Such conditions may include a community
corrections facility.”
According to the petition, Petitioner received a 240-month
sentence after conviction in the United States District Court,
Southern District of New York. Petitioner states that his projected
release date is July 13, 2016. (Petition, Docket Item 1, “Statement
of Facts”). However, the record provided by Respondent shows
Petitioner’s projected release date as August 6, 2016 (Declaration
of Melissa Smith, “Smith Decl.” Ex. 1), and notes that Petitioner’s

1

This Court notes that Petitioner did not submit the $5.00 filing
fee for filing of a habeas petition; however, he applied to proceed
in forma pauperis with his Petition (Docket Item 1-1). Based on
Petitioner’s affidavit and institutional account statement, this
Court will grant the application to proceed in forma pauperis.
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conviction was for Conspiracy to Commit Murder, in violation of 18
U.S.C. § 1959(a)(5).2
In his Petition, Petitioner argues that he should be immediately
considered for a Residential Re-Entry Center (“RRC”) placement or
home confinement. Respondent argues that the claim in the Petition
is not ripe for review.
DISCUSSION
A.

Jurisdiction
Section 2241 of Title 28 of the United States Code provides in

relevant part:
(c) The writ of habeas corpus shall not extend to a prisoner
unless... He is in custody in violation of the Constitution
or laws or treaties of the United States.
28 U.S.C. § 2241(c)(3).
“Section 2241 is the only statute that confers habeas
jurisdiction to hear the petition of a federal prisoner who is
challenging not the validity but the execution of his sentence.”
Coady v. Vaughn, 251 F.3d 480, 485–486 (3d Cir. 2001). This Court
has subject matter jurisdiction under § 2241 to consider the instant
petition because Petitioner was incarcerated in New Jersey when he
filed the petition, and he challenges the denial of early release
on federal grounds. See Woodall v. Fed. Bureau of Prisons, 432 F.3d
235, 241–44 (3d Cir. 2005); Barden v. Keohane, 921 F.2d 476, 478–
2

Petitioner concedes in his Motion for Summary Judgment that his
projected release date is August 6, 2016 (Docket Item 7, p. 5).
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79 (3d Cir. 1990). Moreover, if the Bureau of Prisons (“BOP”)
incorrectly determined his eligibility for early release, this error
carries a potential for a miscarriage of justice that can be corrected
through habeas corpus. See Murray v. Carrier, 477 U.S. 478, 495
(1986); Barden, 921 F.2d at 479.
B.

The Petition Must Be Dismissed.
It is well-established that the Second Chance Act does not

guarantee a one-year RRC placement, but only directs the Bureau of
Prisons to consider placing an inmate in a RRC for up to the final
twelve months of his or her sentence. See Wilson v. Strada, 474 F.
App’x 46, 48-49 (3d Cir. Apr. 9, 2012); see also Travers v. Federal
Bureau of Prisons, 2009 WL 4508585 (D.N.J. Nov. 30, 2009) (Hillman,
J.) (finding that “... nothing in the Second Chance Act entitles
Petitioner to a halfway house placement longer than the 120–150 days
already approved. These pre-release placement decisions are
committed, by statute, to the discretion of the Director of the Bureau
of Prisons . . . .”).
It is also well-established that prisoners have no
constitutional right to be assigned to a particular institution,
facility, or rehabilitative program. See Olim v. Wakinekona, 461 U.S.
238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224-26 (1976);
Wilkerson v. Samuels, 524 F. App’x 776, 778 (3d Cir. 2013)(per
curiam). Nor do prisoners have a liberty interest in a vested right
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to reduction of their sentences by means of placement into a RRC:
the decision is statutorily reserved to the BOP's discretion. Cf.
Magnin v. Beeler, 110 F. Supp.2d 338, 340 n.2 (D.N.J. 2000). The
statutory or ensuing regulatory enactments merely created an
entitlement protected by the Due Process Clause, i.e., these
provisions merely protect Petitioner's expectation to be evaluated
for such placement. Cf. Greenholtz v. Inmates of Nebraska Penal &
Correctional Complex, 442 U.S. 1, 7 (1979) (addressing the right to
parole consideration); see also Board of Pardons v. Allen, 482 U.S.
369 (1987); Prevard v. Fauver, 47 F. Supp.2d 539, 545 (D.N.J.), aff'd,
202 F.3d 254 (3d Cir. 1999). Correspondingly, Petitioner has no
vested right in either being evaluated for RRC placement on a certain
date or in being placed in a RRC on a certain date: rather, he has
a right to be evaluated, generally, and to be placed in a RRC if the
BOP concludes, upon due evaluation, that Petitioner shall be so
placed.
According to BOP policy, “Bureau staff must review inmates for
pre-release RRC placements earlier than provided in P[rogram]
S[tatement] 7310.04. Specifically, inmates must now be reviewed for
pre-release RRC placements 17-19 months before their projected
release dates.” (BOP Memo dated April 14, 2008, attached to Smith
Decl. at Ex. 2)(emphasis in original). See also Smith Decl. at Exs.
3, 4.
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Here, Respondent argues that at the time Petitioner filed this
petition on January 17, 2014, he had not yet been evaluated for a
RRC placement because he was not yet 17-19 months away from his August
6, 2016 release date (Answer, p. 6, Smith Decl. at ¶ 6, Ex. 6).
Petitioner filed an Inmate Request to his Unit Team seeking
placement in an RRC, work release, or home confinement on February
11, 2014. Petitioner sought relief through the BOP Administrative
Review Process. The National Inmate Appeals Board reviewed
Petitioner’s request, and stated that a program review would be held
on or before February 25, 2014. (Smith Decl. at ¶ 5, Ex. 5). As a
result of that directive, a review was performed by the Unit Team
on February 21, 2014, wherein Petitioner was informed that home
confinement was not an appropriate placement because of his Greatest
Severity Public Safety Factor and his lack of confirmed employment
after his release (Smith Decl. at ¶ 9, Ex. 6). Also, RRC placement
was found to be inappropriate and premature. Petitioner was informed
that the Unit Team would re-evaluate Petitioner’s placement and time
frame for RRC placement at the appropriate time, and denied his
request (Smith Decl. at ¶ 10, Ex. 6).3
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This Court notes that during the February 21, 2014 program review,
the following factors were considered in formulating an RRC start
date for Petitioner: (1) the resources of the facility
contemplated; (2) the nature and circumstances of the offense; (3)
the history and characteristics of the offender; (4) any statement
of the court that imposed the sentence; (5) any pertinent policy
statement issued by the U.S. Sentencing Commission; (6) the inmate’s
6

In the Answer, Respondent argues that, “Because the Unit Team
has neither considered Petitioner for an RRC placement based on his
projected release date nor finalized a decision on Petitioner’s
eligibility for home confinement, there is nothing for the Court to
review. Accordingly, the petition is premature, and it must be
dismissed.” (Answer, p. 9).
Indeed, the Court of Appeals for the Third Circuit has affirmed
a factually similar case in Porter-Bey v. Bledsoe, 456 F. App’x 109
(3d Cir. 2012)(per curiam), cited by Respondent. In Porter-Bey the
Court of Appeals held:
Courts enforce Article III's case-or-controversy
requirement through several justiciability doctrines, one
of which is ripeness. “The ripeness doctrine determines
‘whether a party has brought an action prematurely, and
counsels abstention until such time as a dispute is
sufficiently concrete to satisfy the constitutional and
prudential requirements of the doctrine.’” A claim is not
ripe for adjudication if it rests on some contingent future
event.
Porter may resort to federal habeas corpus to
challenge a decision to exclude him from release to a RRC,
Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 243–
44 (3d Cir. 2005), but the record in his case establishes,
just as the District Court concluded, that neither a final
decision nor a final recommendation has been made. Porter
does not dispute that he has not received his final
placement decision, and that he has not yet been referred
to the appropriate Community Case Manager for RRC
placement. Porter also does not contend that the Unit
Team's October, 2010 recommendation is, in practical
resources; and (7) the inmate’s appropriateness for direct home
confinement. However, the Unit Team’s result of “0 days at this time”
was attributed to the fact that Petitioner wasn’t close enough to
his release date for review. (Smith Decl. at ¶ 7, Ex. 6).
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effect, the BOP's final word on the subject. Porter's
habeas corpus petition thus is not ripe for judicial
review.
Porter-Bey, 456 F. App’x at 110-11 (internal citations omitted).
Likewise, in this case, Petitioner’s claim is not ripe for review
and his petition must be dismissed.
Petitioner argues in his Motion for Summary Judgment (Docket
Item 7) that 18 U.S.C. § 3621(b) “does not constrain the B.O.P. from
considering inmates to be placed in CCC for the duration of your
sentence, [and] I am being deprived of my liberty of interest . .
. .” (Motion, p. 5). However, as stated, infra, Petitioner does not
have a liberty interested in assignment to community-based programs.
See, e.g., Powell v. Weiss, 757 F.3d 338, 343 (3d Cir. 2014) (finding
that “Powell did not have an independent due process liberty interest
in his prerelease status and associated transfer [to a CCC].”)
CONCLUSION
For the foregoing reasons, Petitioner's Petition for a Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2241, is hereby dismissed
as premature. His Motion for Summary Judgment will also be dismissed.
An appropriate Order accompanies this Opinion.

s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated: November 5, 2014
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