Parson v. Farley
Filing
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Memorandum Opinion and Order. Petition 1 is denied and Motion to proceed in forma pauperis 2 is dismissed as moot. Judge Jack Zouhary on 9/12/12. (D,L)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Terris Parson,
Case No. 4:12 CV 467
Petitioner,
MEMORANDUM OPINION
AND ORDER
-vsJUDGE JACK ZOUHARY
Robert Farley,
Respondent.
INTRODUCTION
Pro se Petitioner Terris Parson filed this action for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241. Petitioner, who is in federal custody at the Elkton Federal Correctional Institution in
Lisbon, Ohio (“FCI Elkton”), names Warden Robert Farley as Respondent. Petitioner alleges the
Bureau of Prisons (“BOP”) is prohibited from denying him a sentence reduction under 18 U.S.C.
§ 3621. For reasons set forth below, the Petition is denied.
BACKGROUND
Petitioner pled guilty in a South Carolina federal court to one count of conspiracy to distribute
narcotics in violation of 21 U.S.C. § 846. See United States v. Parson, No. 4:07 CR 357 (D. SC filed
Mar. 27, 2007) (Wooten, J.). The district court sentenced Petitioner to 84 months in prison and
recommended the BOP evaluate him for participation in a drug treatment program while incarcerated.
Petitioner enrolled in the Residential Drug Abuse Treatment Program (“RDAP”) at FCI
Elkton, which permits some participants to receive a one-year sentence reduction pursuant to18
U.S.C. § 3621. That statute provides, in part:
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.
18 U.S.C. § 3621 (e)(2)(B).
The BOP allegedly advised Petitioner he was not entitled to the reduction because his sentence
was enhanced two levels for using a firearm. Nevertheless, Petitioner argues he is eligible because
he is a “nonviolent” offender. According to Petitioner, the BOP cannot use a firearm enhancement
to label him as a violent offender because he was not convicted of a violent crime. He reasons if he
were guilty of using a firearm, the Government would have convicted him under one of the relevant
criminal statutes. Instead, he maintains the BOP is punishing him for a crime he has not committed.
STANDARD OF REVIEW
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.” 28 U.S.C. § 2241(a). Section 2241
“is an affirmative grant of power to federal courts to issue writs of habeas corpus to prisoners being
held ‘in violation of the Constitution or laws or treaties of the United States.’” Rice v. White, 660 F.3d
242, 249 (6th Cir. 2011) (quoting Section 2241(c)). Because Petitioner is appearing pro se, the
allegations in his Petition must be construed in his favor, and his pleadings are held to a less stringent
standard than those prepared by counsel. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001).
However, this Court may dismiss the Petition at any time, or make any such disposition as law and
justice require, if it determines the Petition fails to establish adequate grounds for relief. See Hilton
v. Braunskill, 481 U.S. 770, 775 (1987); see also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970)
(district courts have a duty to “screen out” petitions lacking merit on their face under Section 2243).
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DISCUSSION
Under Section 3621(e)(2)(B), the BOP may reduce the sentence of a prisoner who (1) was
“convicted of a nonviolent offense” and (2) “successfully completes a treatment program.” As the
Supreme Court noted, the BOP “has the authority, but not the duty,” to reduce an eligible individual’s
term of imprisonment under the statute after that individual successfully completes drug treatment.
Lopez v. Davis, 531 U.S. 230, 241 (2001). Because Section 3621 did not define “nonviolent offense”
when it was enacted, the BOP published 28 C.F.R. § 550.58 to define it. Under the latest version of
Section 550.58, effective March 16, 2009, it is within the Director’s discretion to render ineligible for
early release:
(5) Inmates who have a current felony conviction for:
(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); . . .
(6) Inmates who have been convicted of an attempt, conspiracy, or other offense which
involved an underlying offense listed in paragraph (b)(4) and/or (b)(5) of this section.
28 C.F.R § 550.55.
Sentencing Guidelines § 201.1(b)(1) permits a trial judge to increase a defendant’s base
offense by two levels when “a dangerous weapon (including a firearm) was possessed” during the
unlawful distribution of narcotics. In Lopez, the Supreme Court expressly held Section 3621(e)(2)(B)
grants the BOP broad discretion to exclude prisoners from receiving a sentence credit if they are
serving sentences for drug conspiracy enhanced for a weapons possession. See Lopez, 531 U.S. at 241
(Section 3621(e) did not limit considerations BOP could use to make decisions and BOP reasonably
concluded inmate’s involvement with firearms in connection with a felony was relevant to early
release decision); see also Swant v. Hemingway, 23 App’x 383, 384 (6th Cir. 2001) (BOP did not
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abuse its discretion by categorically excluding inmates from Section 3621 sentence reduction where
sentences included weapon enhancements).
Like Lopez, Petitioner qualified for the BOP’s treatment program, but is categorically
ineligible for early release under the BOP’s policy in Section 550.58(a)(1)(vi). Petitioner’s challenge
to the BOP’s discretionary power to deny him early release is not well taken.
CONCLUSION
For the foregoing reasons, the Petition is denied and this action is dismissed pursuant to 28
U.S.C. § 2243. Petitioner’s Motion to Proceed In Forma Pauperis (Doc. 2) is also dismissed as moot.
Further, under 28 U.S.C. § 1915(a)(3), this Court certifies that an appeal could not be taken in good
faith.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
September 12, 2012
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