Cole v. Merlak
Memorandum Opinion and Order denying 1 Petition and this action is dismissed. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Donald C. Nugent 11/7/2017(C,KA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
CASE NO. 4:17 CV 1774
JUDGE DONALD C. NUGENT
Pro se Petitioner Samuel Cole has filed this action seeking a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. (Doc. No. 1.) He is a federal prisoner currently incarcerated at FCI–Elkton.
He was previously incarcerated in the Federal Correctional Institution in Morgantown, West
Virginia, where he was permitted to participate in a residential drug and alcohol treatment program
(RDAP), which, if completed, could have reduced the amount of time he spent in prison. Petitioner
contends he was unlawfully expelled from the RDAP after receiving two 300-level disciplinary
infractions. He seeks an order requiring the Bureau of Prisons (BOP) to provide him all the benefits
of the program, including restoring his eligibility for a reduction in the period of his custody. (Id.
A district court conducts an initial review of habeas corpus petitions. 28 U.S.C. §2243;
Alexander v. Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). The Court must summarily
deny the petition “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)).
Upon review, the Court finds that the Petition must be summarily dismissed. To be entitled
to habeas corpus relief under § 2241, a prisoner must be “in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
The Petition and its exhibits do not suggest Petitioner is in custody in violation of the
Constitution or laws or treaties of the United States. A prisoner has no constitutionally-protected
liberty interest in discretionary release from prison prior the expiration of his sentence. Greenholtz
v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“[t]here is no constitutional or
inherent right of a convicted person to be conditionally released before the expiration of a valid
sentence”). Nor does a prisoner have a constitutionally-protected liberty or property interest in
participating in a prison rehabilitation program. See Moody v. Daggett, 429 U.S. 78, 88 (1976).
Further, the statute that allows for a prisoner to be considered for a sentence reduction once
he has successfully completed an RDAP, 18 U.S.C. § 3621(e)(2)(B), leaves the decision of whether
to grant early release to the discretion of the BOP. See Lopez v. Davis, 531 U.S. 230, 241 (2001).
Thus, even where a prisoner successfully completes an RDAP, the BOP retains discretion to deny
early release. See Heard v. Quintana, 184 F. Supp.3d 515, 519-20 (E.D. Ky. 2016).
Petitioner’s allegations pertaining to his removal from the RDAP program, and the resulting
loss of his eligibility for a reduction in his federal sentence, do not implicate a constitutionallyprotected federal right. Accordingly, his Petition is denied and this action is dismissed. The Court
further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be
taken in good faith.
IT IS SO ORDERED.
/s/Donald C. Nugent
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE
Dated: __November 7, 2017___
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