MARINO v. HOLLINGSWORTH
Filing
13
OPINION. Signed by Judge Renee Marie Bumb on 7/26/2018. (dmr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JUSTIN L. MARINO,
Petitioner
v.
WARDEN J. HOLLINGWORTH,
Respondent
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Civ. Action No. 16-4347 (RMB)
OPINION
BUMB, District Judge
Petitioner, Justin L. Marino, a prisoner confined in the
Federal Correctional Institution in Fort Dix, New Jersey (“FCI
Fort Dix”), filed a petition for writ of habeas corpus under 28
U.S.C. § 2241, challenging the Bureau of Prison’s (“BOP”) denial
of early release upon completion of a Residential Drug Program
(“RDAP”). (Pet., ECF No. 1.) He subsequently filed an amended
petition. (Am. Pet., ECF No. 7.) Respondent filed a response,
opposing habeas relief. (Response, ECF No. 8.) Petitioner filed a
reply and declaration in support thereof. (Petr’s Reply, ECF No.
11; Petr’s Decl., ECF No. 12.) For the reasons discussed below,
the Court will deny the petition.
I.
BACKGROUND
On January 27, 2014, while incarcerated in FCI Oakdale, in
Oakdale, Louisiana, a BOP staff member screened Petitioner for
RDAP participation and found him eligible based on his history of
alcohol and cannabis dependence. (Declaration of Sharon Kotch
(“Kotch Decl.”) ¶3, Ex. 2, ECF No. 8-2 at 6.) Petitioner signed an
agreement to participate in RDAP on January 27, 2014, and he
commenced the program at FCI Fort Dix on October 15, 2015. (Kotch
Decl., Exs. 1 & 3; ECF No. 8-2 at 6, 8-10.)
Pursuant to BOP Program Statement 5331.02, Early Release
Procedures under 18 U.S.C. § 3621(e),1 the Drug Abuse Program
Coordinator at FCI Oakdale requested that the BOP’s Designation
and
Sentence
Computation
Center
(“DSCC”)
determine
whether
Petitioner’s offense precluded him from early release. (Kotch
Decl., ¶4, Ex. 4, ECF No. 8-2 at 12.) On January 30, 2014, the
DSCC determined that Petitioner was ineligible for early release
because his convictions involved a sexual abuse offense against a
minor. (Id.)
Petitioner filed an administrative grievance on October 13,
2015, arguing that he should qualify for early release because his
conviction was not for a crime of violence. (Declaration of Tara
Moran (“Moran Decl.”) Ex. 2, ECF No. 8-1 at 9.) In a “Request for
1
Available at https://www.bop.gov/policy/progstat/5162.005.pdf
2
Administrative Remedy” to Warden Hollingsworth, Petitioner stated
that
the
BOP
categorically
relied
deny
him
on
Program
early
Statement
release
5162.05(3)(a)
because
it
found
to
his
conviction under 18 U.S.C. § 2422(b) is a violent crime. (Moran
Decl., Ex. 2, ECF No. 8-1 at 9.) Petitioner argued that the BOP
Program
Statement
only
applied
to
§
2422(a)
“coercion
into
interstate travel for illegal sexual activity” but he was convicted
under § 2422(b), coercing any individual to engage in any sexual
activity for which any person can be charged with a criminal
offense. (Id.)
Warden Hollingsworth responded that:
According to 28 CFR §550.55(b)(5)(iv), a crime
that, by its nature or conduct, involves
sexual abuse offenses committed upon minors is
a precluding offense for early release
eligibility under § 3621(e). The Designation
and Sentencing Computation Center (DSCC)
determined your current conviction for 18
U.S.C. § 2422[b] Use of a Computer to Entice
a Minor to Engage in Sexual Activity, meets
the above criteria set forth in policy.
Further, according to Program Statement
5162.05, Categorization of Offenses, your
current conviction is categorized as a crime
of violence, which precludes you from early
release
eligibility.
Accordingly,
your
request is denied.
(Moran Decl., Ex. 2, ECF No. 8-1 at 10.)
Petitioner appealed the Warden’s decision, arguing that his
offense did not constitute a crime of violence. (Moran Decl., Ex.
3, ECF No. at 8-1 at 12.) The Regional Director affirmed the
3
Warden’s decision. (Moran Decl., Ex. 3, ECF No. at 8-1 at 13.)
Petitioner appealed to the Central Office, which noted Petitioner
was expelled from RDAP on February 4, 2016, therefore, no relief
was warranted. (Id., Ex. 4, ECF No. 8-1 at 15.)
Respondents note that Petitioner was reinstated to RDAP on
July 29, 2016. (Response, ECF No. 8 at 12 n. 4.) Respondents do
not contest that Petitioner exhausted his administrative remedies.
(Id.)
II.
THE AMENDED PETITION, RESPONSE AND REPLY
A.
The Amended Petition
In his amended petition, Petitioner presents four grounds for
relief:
Ground One:
BOP’s definition of a “Crime of
Violence”
as
being
“Vague”
and
that
Plaintiff’s offense “Does Not Involve …
Violent …” conduct. Plaintiff relies upon case
law of the 10th Circuit and the U.S. Supreme
Court.2
Ground Two:
Pursuant to doctrines of res
judicata
and
collateral
estoppel
BOP
prohibited from resurrecting claim of violence
based upon Walsh Act violations.
(Am. Pet., ECF No. 7-8 at ¶13.)
In support of Ground Two, Petitioner states,
Plaintiff’s sentencing transcript at P. 24,
Lines 9-10 establishes that the prosecution
admitted in open court that Plaintiff was not
subject to the Walsh Act. The judicial
2
Petitioner did not cite any specific cases in his petition, but
he cited caselaw in his administrative remedy request and appeals.
4
admissions of the prosecution are conclusive.
The BOP is, therefore, collaterally estopped
from asserting reasons based upon the Walsh
Act as the basis for denying Plaintiff early
release upon Plaintiff’s completion of the
Residential Drug Program, similarly the BOP is
precluded from asserting reasons based upon
the Walsh Act [and] the doctrine of res
judicata.
(Id.)
In Ground Three, Petitioner contends his Fifth Amendment
protection against double jeopardy was violated. (Id.) In support
of this claim, Petitioner states,
Prosecution’s statements in open court (see
Sentencing Transcript at P. 24, Lines 9-10)3
that Walsh Act did not apply to Plaintiff
constitute
judicial
admissions
that
conclusively concedes that truth of a fact
alleged and that may not be subsequently
refuted. By direct inference, the underlying
reason for the Warden’s determination the
Plaintiff is ineligible for early release upon
completion of the Residential Drug Program
violates
Plaintiff’s
double
jeopardy
th Amendment to the U.S.
protections under the 5
Constitution. Claim asserted in BP-10 and BP11
but not BP-9.
(Id.)
In Ground Four, Petitioner alleges he was treated differently
than other similarly situated inmates. (Id. at 9.) In support of
this claim he states,
Petitioner did not submit a copy of his sentencing transcript.
The Court will accept Petitioner’s allegations of fact concerning
the sentencing transcript as true for purposes of this petition.
3
5
Upon completion of the RDAP, Plaintiff was
denied early release by the Warden on the
putative grounds that Plaintiff’s offense was
in violation of the Walsh Act, however,
Plaintiff was specifically informed by prison
staff Dr. Houseman that other similarly
situated
prison
inmates
with
the
same
conviction received and/or were [awarded]
early release upon their successful completion
of the RDAP.
(Am. Pet., ECF No. 1 at 9.) For relief, Plaintiff seeks a finding
that he is eligible for early release upon successful completion
of a Residential Drug Program. (Id., ¶15.)
B.
The Response
Respondent submits that Petitioner is serving a 151-month
sentence for using a computer to entice a minor to engage in sexual
activity in violation of 18 U.S.C. § 2422. (Response, ECF No. 8 at
6.) Respondents contend the BOP’s categorical exclusion of certain
sex offenders from early-release eligibility is supported by the
Supreme Court decision in Lopez v. Davis, 531 U.S. 230, 242 (2001).
Further, Respondents argue that Petitioner does not have a liberty
interest in a sentence reduction for participation in RDAP. (Id.
at 6-7.)
C.
The Reply
Petitioner
asserts
that
Dr.
Joshua
Houseman,
Drug
Abuse
Program Coordinator at FCI Fort Dix, admitted to Petitioner that
other inmates with convictions similar to his own, under the same
category offense under 18 U.S.C. § 2422, were awarded early release
6
following successful completion of RDAP. (Petr’s Reply, ECF No. 11
at 6-7.) Petitioner thus contends the BOP’s decision denying him
early release was arbitrary and capricious.
Petitioner acknowledges a circuit split over the definition
of “sexual activity” as described in 18 U.S.C. § 2422(b). (Id.,
ECF No. 11 at 7-8.) Petitioner contends the circuit split does not
explain why the BOP awards early release to some inmates but not
others
with
the
same
category
of
offense
under
§
2422(b).
Petitioner concludes, “[t]he net effect of the Respondent awarding
early release to some inmates and denying early release to others
and all of whom have convictions for the same § 2422(b) offense
category as Petitioner is discriminatory” and violates his right
to equal protection under the laws. (Id. at 9.) As to this claim,
Petitioner
states
“[s]olely
in
dispute
is
the
inconsistent
application of the determination of “early release” to inmates
with the same § 2422(b) offense category as [Petitioner’s] which
Petitioner
submits
is
“arbitrary,
capricious
and
manifestly
contrary to statute.” (Petr’s Reply, ECF No. 11 at 10.)
Petitioner further asserts that the BOP’s denial of his
request for early release violated his Fifth Amendment protection
against double jeopardy and the doctrines of res judicata and
collateral estoppel. (Id.) In support of this claim, Petitioner
contends that under the Walsh Act, if a defendant is charged with
a crime of violence,
7
the court must hold a hearing to determine
whether there exist conditions of release that
will reasonably assure the person’s appearance
and the safety of any person and the community
if charged with an offense(s) involving either
(a) a minor victim, (b) firearms, (c)
dangerous weapons, or (d) the failure to
register as a sex offender. The Adam Walsh Act
also makes clear the meanings of ‘a minor
victim’, the “safety of any person and the
community”, and ‘a crime of violence.’
(Id. at 11.)
Petitioner explains that during his entry of plea, the trial
court noted the Adam Walsh Act did not apply to him, and the
government agreed. (Id. at 12.) Therefore, he was released on bond
and permitted to self-surrender after sentencing. (Id.) Petitioner
maintains that the trial court’s ruling is a binding decision that
Petitioner’s offense was not a “crime of violence” and that his
offense does not pose a threat to the “safety of any person and
the community.” (Id.) He contends the BOP does not have independent
authority over an issue mandated by the sentencing court. (Id.)
Petitioner next argues that Respondent may not exclude those
convicted of nonviolent offenses from early release consideration
under 28 C.F.R. § 550.58 and BOP Program Statement 5162.04. (Id.
at 12-13.) Additionally, Petitioner contends the BOP’s request for
an offense review of Petitioner’s eligibility for RDAP violates
the doctrine of double jeopardy and “is inconsistent with the
statutory language because it allows Respondent to rely upon
factors other than whether the crime of conviction was nonviolent
8
in making the initial determination as to whether a prisoner is
eligible to be considered for early release under 18 U.S.C. §
3621(e)(2)(B).” (Id. at 12-13.)
II.
DISCUSSION
A.
Legal Standard
28 U.S.C. § 2241 provides, in relevant part:
(a) Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions . . .
(c) The writ of habeas corpus shall not extend
to a prisoner unless—
. . .
(3) He is in custody in violation of the
Constitution or laws or treaties of the
United States; . . .
Petitioner
alleges
violation
of
his
Fifth
Amendment
protection against double jeopardy and the Fifth Amendment right
to equal protection under the law. See U.S. v. Windsor, 570 U.S.
744, 774 (2013) (“The liberty protected by the Fifth Amendment's
Due Process Clause contains within it the prohibition against
denying to any person the equal protection of the laws”) (citations
omitted).
18 U.S.C. § 3621(e)(2)(B) provides:
(2) Incentive for prisoners'
completion of treatment program.—
. . .
9
successful
(B) Period of custody.--The period
a prisoner convicted of a nonviolent
offense remains in custody after
successfully completing a 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.
To implement the early release program, the BOP published a
rule in 1995 which made all inmates currently incarcerated for a
“crime of violence” ineligible for the program, based on the
statute’s limitation of the incentive to prisoners convicted of
“nonviolent offenses.” Lopez v. Davis, 531 U.S. 230, 233 (2001)
(citing 60 Fed.Reg. 27692–27695; 28 CFR § 550.58.)) In a BOP
Program Statement, the BOP defined “crimes of violence” to include
“a drug trafficking conviction under 21 U.S.C. § 841, if the
offender … [received a sentencing enhancement] for possessing a
dangerous weapon during the commission of the drug offense.” Id.
at 233-34.
A circuit split developed over the validity of including drug
trafficking convictions as crimes of violence, which forced courts
to look at sentencing factors to determine whether the offender
was convicted of a crime of violence. Id. at 234. This prompted
the BOP to publish a new regulation in 1997. Id. at 235.
Like the 1995 rule, the current regulation
excludes from early release eligibility
offenders
who
possessed
a
firearm
in
connection with their offenses. In contrast to
the earlier rule, however, the 1997 regulation
10
does not order this exclusion by defining the
statutory term “prisoner convicted of a
nonviolent offense” or the cognate term
“crimes of violence.” Instead, the current
regulation
relies
upon
“the
discretion
allotted to the Director of the Bureau of
Prisons in granting a sentence reduction to
exclude [enumerated categories of] inmates.”
Id. The BOP exercised its discretion in this manner because it
believed that preconviction conduct of armed offenders and certain
recidivists posed a particular risk to the public. Id. at 236. The
Supreme
Court
held
that
the
regulation
was
a
permissible
interpretation of the statute. Id. at 244.
The present version of the regulation is found at 28 CFR §
550.55, which provides, in relevant part:
(a) Eligibility. Inmates may be eligible for
early release by a period not to exceed twelve
months if they:
(1) Were sentenced to
imprisonment under either:
(i)
18
U.S.C.
Subchapter D for
offense; or
a
term
of
Chapter
227,
a nonviolent
(ii) D.C. Code § 24–403.01 for a
nonviolent
offense,
meaning
an
offense other than those included
within the definition of “crime of
violence” in D.C. Code § 23–1331(4);
and
(2) Successfully complete a RDAP, as
described in § 550.53, during their
current commitment.
(b) Inmates not eligible for early release. As
an exercise of the Director's discretion, the
11
following categories of inmates
eligible for early release:
are
not
. . .
(5) Inmates who have a current felony
conviction for:
. . .
(iv) An offense that, by its nature
or conduct, involves sexual abuse
offenses committed upon minors. . .
28 CFR § 550.55 (effective March 16, 2009 to May 25, 2016).
B.
Analysis
1.
In
the
excluding
Whether BOP’s Definition of Crime of
Violence is Vague, and Whether BOP erred
in finding Petitioner’s offense violent
final
conviction
from
for
rule
issued
eligibility
an
offense
in
inmates
advance
who
involving
had
of
a
sexual
the
regulation
current
abuse
committed upon minors, the BOP explained:
[S]exual abuse offenses committed against
minors exhibit a particular dangerousness to
the public and often entail violent or
threatening elements that resonate with
victims and the community as a whole. Because
of this, the Director has chosen to use his
discretion to exclude offenders of these
offenses from early release consideration.
The Director’s rationale was mirrored by the
enactment of the Adam Walsh Child Protection
and Safety Act of 2006 (Walsh Act). The Walsh
Act specifically expanded the definition of
“sex offense” to include “a criminal offense
that is a specified offense against a minor”
and to include all offenses by “child
predators.” Public Law 109-248, section 111,
12
felony
offenses
120 Stat. 587, 591-92 (2006). The Walsh Act
also expanded the National Sex Offender
Registry by integrating the information in
state sex offender registry systems to ensure
that law enforcement has access to the same
information across the United States. Section
113, 120 Stat. at 593-94; see also 2006
U.S.C.C.A.N. S35, S36. This evidences the
intent of Congress to encompass any offense
relating to minors that involves sexual
conduct, and to limit public exposure,
including early release opportunities, to
inmates found to have these types of offenses
in their backgrounds. We therefore deny early
release eligibility to such inmates in
conformance with Congressional intent and
recognition of the seriousness of such
offenses.
74 Fed.Reg. 1892, 1894 (Jan. 14, 20009).
Interpreting § 3621(e)(2)(B) in Lopez, the Supreme Court
held:
Beyond instructing that the Bureau has
discretion
to
reduce
the
period
of
imprisonment for a nonviolent offender who
successfully
completes
drug
treatment,
Congress has not identified any further
circumstance in which the Bureau either must
grant the reduction, or is forbidden to do so.
In this familiar situation, where Congress has
enacted a law that does not answer “the
precise question at issue,” all we must decide
is whether the Bureau, the agency empowered to
administer the early release program, has
filled the statutory gap “in a way that is
reasonable in light of the legislature's
revealed design.” NationsBank of N.C., N.A. v.
Variable Annuity Life Ins. Co., 513 U.S. 251,
257, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995)
(citing Chevron, 467 U.S., at 842, 104 S.Ct.
2778); see also Reno v. Koray, 515 U.S. 50,
61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995)
(deferring
to
BOP's
interpretation
of
statute).
13
Lopez, 531 U.S. at 242. The Court further held that it was
permissible for the BOP to categorically exclude prisoners based
on their preconviction conduct, and that the BOP “reasonably
concluded that an inmate's prior involvement with firearms, in
connection with the commission of a felony, suggests his readiness
to resort to life-endangering violence and therefore appropriately
determines the early release decision.” Id. at 244.
Petitioner’s claim that BOP’s definition of crime of violence
is vague and that the BOP erred in finding his offense violent is
not relevant here because the BOP relied on its discretionary
authority to categorically exclude prisoners from eligibility, as
approved by the Supreme Court in Lopez. See Kotch Decl., Ex. 4,
ECF No. 8-2 at 12.
Petitioner asserted the BOP’s determination was unreasonable,
arbitrary
and
capricious.
Although
Petitioner
appears
to
be
confused about how the BOP arrived at the conclusion that he is
not eligible for RDAP early release, this Court will address
whether the BOP’s categorical exclusion of inmates convicted of
crimes involving sexual abuse of minors is reasonable based on the
legislative intent behind § 3621(e)(2)(B). See Lopez, 531 U.S. at
244 (holding the BOP “may categorically exclude prisoners based on
their preconviction conduct.”)
14
First, the Court notes the BOP did not make an individual
determination that the Walsh Act applied to Petitioner. The BOP,
when it decided to categorically exclude inmates from eligibility
for early release based on conviction for a sexual abuse offense
against a minor, considered the legislative intent behind the Walsh
Act to expand the definition of punishable sex offenses to any
offense relating to minors that involves sexual conduct, and the
Congressional intent to limit public exposure of inmates found to
have these types of offenses in their backgrounds. 74 Fed.Reg.
1892, 1894 (Jan. 14, 20009).
The Supreme Court’s holding in Lopez, that “[t]he Bureau
reasonably
concluded
that
an
inmate's
prior
involvement
with
firearms, in connection with the commission of a felony, suggests
his readiness to resort to life-endangering violence and therefore
appropriately
determines
the
early
release
decision[,]”
is
instructive here. As in Lopez, the BOP gave reasons to support a
policy of public protection and, thus, reasonably interpreted the
legislative
grant
of
discretion
in
§
3621(e)(2)(B)
to
categorically deny offenders whose conduct of conviction involved
sexual abuse of a minor, because persons who committed such
offenses “exhibit a particular dangerousness to the public and
often entail violent or threatening elements that resonate with
victims and the community as a whole.” See Gardner v. Grandolsky,
585 F.2d 786, 792 (3d Cir. 2009) (“we find it extremely significant
15
that in Lopez, the Supreme Court upheld both the reasonableness of
the
1997
interim
regulation
and
the
BOP's
public
safety
rationale.”) Therefore, Ground One of the petition is denied.
2.
The
Whether Res Judicata or Collateral Estoppel
preclude the BOP from “asserting reasons based upon
the Walsh Act as the basis for denying Plaintiff
early release upon Plaintiff’s completion of the
Residential Drug Program”
Third
Circuit
defined
the
doctrine
of
collateral
estoppel:
Collateral estoppel is a judicial doctrine
that precludes relitigation of an issue
already decided in a previous proceeding if
“(1)
the
issue
decided
in
the
prior
adjudication was identical with the one
presented in the later action, (2) there was
a final judgment on the merits, (3) the party
against whom the plea is asserted was a party
or in privity with a party to the prior
adjudication, and (4) the party against whom
it is asserted has had a full and fair
opportunity to litigate the issue in question
in a prior action.” Dici v. Pennsylvania, 91
F.3d 542, 547–48 (3d Cir. 1996).
Kedra v. Schroeter, 876 F.3d 424, 434 n.2 (3d Cir. 2017), cert.
denied, 138 S. Ct. 1990 (2018).
Here, the issue decided in Petitioner’s prior criminal action
is not identical to the issue decided by the BOP. In Petitioner’s
criminal prosecution, the prosecution agreed that Petitioner was
not subject to the Walsh Act. In contrast, the BOP decided that,
for the same rationale provided by Congress in passing the Walsh
Act, inmates who were convicted of a sexual abuse offense against
16
a minor should categorically be excluded from early release upon
RDAP completion. Collateral estoppel is inapplicable here.
Res judicata is also inapplicable here. “Under the doctrine
of res judicata, a judgment on the merits in a prior suit bars a
second suit involving the same parties or their privies based on
the same cause of action.” Parklane Hosiery Co. v. Shore, 439 U.S.
322, 326 n. 5 (1979). There was no second suit here. In making its
determination that Petitioner is not entitled to early release
upon RDAP completion, the BOP did not determine that Petitioner
was subject to the Walsh Act, but rather that he was incarcerated
for “[a]n offense that by its nature or conduct involves sexual
abuse
offenses
committed
upon
minors”
under
28
CFR
550.55(b)(5)(iv). (Kotch Decl., ¶4, Ex. 4, ECF No. 8-2 at 12.)
Neither res judicata nor collateral estoppel extend so far as to
preclude the BOP from relying on the same rationale as Congress in
passing the Adam Walsh Act when it excluded prisoners incarcerated
for sexual abuse offenses against minors. Therefore, Ground Two of
the petition is denied.
3.
Double Jeopardy Claim
“The Double Jeopardy Clause … provides that no person may be
tried more than once ‘for the same offence.’” Currier v. Virginia,
138 S. Ct. 2144, 2149 (2018). The Double Jeopardy Clause also
protects against multiple punishments for the same offense. Whalen
v. U.S., 445 U.S. 684, 688 (1980). The BOP did not try Petitioner
17
for
any
criminal
Petitioner
based
offense
on
his
nor
did
criminal
it
impose
offense.
a
The
punishment
BOP
used
on
its
discretionary authority to deny Petitioner eligibility for early
release on the sentence that was imposed by the sentencing court.
Petitioner’s Double Jeopardy Claim is without merit and is denied.
4.
Equal Protection Claim
“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its
jurisdiction
the
equal
protection
of
the
laws,’
which
is
essentially a direction that all persons similarly situated should
be treated alike.” City of Cleburne, Tex. v. Cleburne Living
Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S.
202, 216 (1982)). “The central purpose of the Clause ‘is to prevent
the States from purposely discriminating between individuals on
the basis of race.’” Doe ex rel. Doe v. Lower Merion Sch. Dist.,
665 F.3d 524, 543 (3d Cir. 2011) (quoting Shaw v. Reno, 509 U.S.
630, 642 (1993) (citing Washington v. Davis, 426 U.S. 229, 239
(1976)). “Thus, ‘[p]roof of racially discriminatory intent or
purpose is required to show a violation of the Equal Protection
Clause.’” Id. (quoting Antonelli v. New Jersey, 419 F.3d 267, 274
(3d Cir. 2005) (quoting City of Cuyahoga Falls v. Buckeye Cnty.
Hope Found., 538 U.S. 188, 194 (2003)) (internal citations and
quotation marks omitted in Antonelli).
18
Although Petitioner has alleged that the BOP treated him
differently from others who were convicted of the same category of
crime, he does not allege any facts supporting a conclusion that
the BOP had a
eligibility
racially
for
early
discriminatory intent in denying him
release
for
RDAP
completion.
Further,
Petitioner has not stated a “class of one” equal protection claim
because he does not allege that he is the only inmate who was
convicted of the same category offense under 18 U.S.C. § 2422(b)
who was denied early release upon RDAP completion; in other words,
he was not in a “class of one.” See Village of Willowbrook v.
Olech,
528
U.S.
562,
564-65
(2000)
(holding
that
the
Equal
Protection Clause “gives rise to a cause of action on behalf of a
“class of one.”) Therefore, Ground Four of the petition is denied.
III. CONCLUSION
For
the
reasons
discussed
above,
the
Court
denies
Petitioner’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2241.
An appropriate Order follows.
Dated: July 26, 2018
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
19
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