Binford v. Thomas
Filing
12
OPINION AND ORDER. Petitioner's petition for writ of habeas corpus 1 is DENIED, and this proceeding is DISMISSED. IT IS SO ORDERED. Signed on 05/10/2011 by Judge Malcolm F. Marsh. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
TIMOTHY BINFORD,
Petitioner,
CV. 10-945-MA
OPINION AND ORDER
v.
JEFFREY THOMAS, Warden, FCI
Sheridan,
Respondent.
TIMOTHY BINFORD
10114-085
Sheridan Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 5000
Sheridan, OR 97378
Pro Se
DWIGHT C. HOLTON
United States Attorney
KEVIN C. DANIELSON
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
MARSH, Judge
Petitioner Timothy Binford, an inmate at FCI Sheridan, brings
this habeas corpus proceeding pursuant to 28 U.S.C. § 2241,
1 - OPINION AND ORDER
challenging the Bureau of Prisons’ (BOP’s) alleged failure to
properly address his request for a transfer to a residential
reentry center (RRC) pursuant to 28 U.S.C. § 3621(b).
For the
reasons that follow, petitioner's habeas corpus petition is DENIED,
and this proceeding is DISMISSED.
BACKGROUND
I.
Factual Background.
Petitioner is currently serving a 188-month sentence for Armed
Bank Robbery in violation of 18 U.S.C. § 2113.
Petitioner’s
projected release date is January 2, 2014, via good conduct time.
On June 22, 2010, petitioner submitted an Inmate Request to
Staff Member seeking a transfer to an RRC pursuant to 18 U.S.C. §
3621(b) so he could re-establish ties to the community and assist
in raising his children.
Petitioner was advised by staff that his
request would be considered during his next Program Review.
On August 11, 2010, petitioner filed his current petition
for writ of habeas corpus.
On October 6, 2010, petitioner had a regularly scheduled
Program Review.
During his Program Review, petitioner’s Unit Team
considered
RRC
his
transfer
request.
The
Unit
Team
denied
petitioner’s transfer request, providing the following rationale:
Mr. Binford has requested transfer to RRC in accordance
with [18 U.S.C. § 3621(b)]:
1) Facility routine BOP contract RRC. Facility is not
commensurate with inmates (sic) current custody level of
2 - OPINION AND ORDER
“IN.”
At this time in accordance with P.S. 5100.081
inmate scores as Medium level with “IN” custody.
2) Binford was convicted of Armed Bank Robbery. During
the robbery orchestrated by Binford one of the codefendants pointed a weapon directly at the teller which
went off while co-defendant was grabbing cash from the
victim teller.
3) Binford has received several moderate level incident
reports during incarceration.
Average level of
programming. No programming to address victims of crime
or to make amends for crime.
4) No judicial recommendations for reason, place or level
of incarceration.
5) No Sentencing Commission policy statements.
Unit team is denying request for Less Secure transfer.
Mr. Binford is house at appropriate level facility for
his correctional and public safety needs. (Declaration
of Paul E. Perona (#9)(Perona Dec.), Attachment 6, p.
13.)
II.
Statutory Background.
Congress has delegated to the BOP the authority to make all
inmate placement determinations in two statutes:
3621(b) and 3624(c).
discretionary
Under § 3621(b), the BOP is delegated broad
authority
to
determine
the
proper
inmates at the start of an inmate's prison term.
v.
Smith,
541
F.3d
18 U.S.C. §§
1180,
1182
(9th
Cir.
placement
E.g., Rodriguez
2008).
Placement
designations require consideration of five statutory factors:
1
The BOP classifies and designates inmate placements
according to Program Statement 5100.08, Inmate Security
Designation and Custody Classification (2006). The full text of
Program Statement 5100.08 is available at
http://www.bop.gov/policy/progstat/5100_008.pdf.
3 - OPINION AND ORDER
of
(1)
(2)
(3)
(4)
the resources of the facility contemplated;
the nature and circumstances of the offense;
the history and characteristics of the prisoner;
any statement by the court that imposed the sentence(A) concerning the purpose for which the
sentence to imprisonment was determined to be
warranted; or
(B)
recommending
a
type
of
penal
or
correctional facility as appropriate; and
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to section 994(a)(2) of
title 28. 18 U.S.C. § 3621(b).
The BOP must consider these same five factors when transferring
inmates in its custody.
18 U.S.C. § 3621(b).
Rodriguez, 541 F.3d
at 1188; Levine v. Apker, 455 F.3d 71, 85 (2d Cir. 2006); Woodall
v. Federal Bureau of Prisons, 432 F.3d 235, 247 (3d Cir. 2005).
Section 3621(b) governs the BOP’s placement authority when inmates
with more than a year left to serve on their sentences request RRC
transfers. Sacora v. Thomas, 628 F.3d 1059, 1062 (9th Cir. 2010).
Under 18 U.S.C. § 3624(c), the BOP is required to evaluate
inmates for RRC placement near the end of their sentences to
prepare prisoners for reentry into the community. Sacora, 628 F.3d
at 1062.
Under 18 U.S.C. § 3625, entitled Inapplicability of the
Administrative Procedure Act (APA), Congress specified that “[t]he
provisions of sections 554 and 555 and 701 through 706 of [the APA]
do not apply to the making of any determination, decision, or
order” under 18 U.S.C. §§ 3621-3625.
4 - OPINION AND ORDER
18 U.S.C. § 3625; Reeb v.
Thomas, 2011 WL 723106, *2 (9th Cir. Mar. 3, 2011); Johnston v.
Thomas, 2010 WL 2574090 (D. Or. June 24, 2010).
DISCUSSION
In the instant proceeding, petitioner raises one claim of
relief – that the BOP failed to properly address his request for a
transfer
to
an
RRC.
Broadly
construing
petitioner’s argument appears twofold:
petitioner’s
claim,
(1) the BOP has not
properly applied the placement factors of § 3621(b) to his RRC
request;
and
(2)
the
BOP’s
interpretation
of
§
3621(b)
categorically limits consideration of RRC placements to the final
portion of an inmate’s sentence.
Respondent moves to deny habeas corpus relief on several
grounds:
(1) this court lacks jurisdiction to review the BOP’s
individualized RRC placement determination under 28 U.S.C. § 3625;
(2) the BOP has properly considered his claim under § 3621(b); (3)
petitioner’s claim is moot; and (4) petitioner has failed to
exhaust his administrative remedies.
I.
This Court Lacks Jurisdiction to Hear Petitioner’s Challenge
under § 706(2)(A) of the APA.
Respondent contends that to the extent petitioner is arguing
that the BOP’s denial of his transfer request is arbitrary and
capricious under 5 U.S.C. § 706(2)(A) of the APA, this court lacks
jurisdiction to hear petitioner’s claim. According to respondent,
18
U.S.C.
§
3625
precludes
5 - OPINION AND ORDER
judicial
review
of
petitioner’s
contention that the BOP “fail[ed] to properly apply the placement
factors of 18 U.S.C. § 3621(b).”
4.)
(Petitioner’s Brief (#11) p. 3-
I agree.
The APA provides a cause of action for persons suffering a
legal wrong because of adverse agency action, and agency actions
can be held unlawful when those actions are arbitrary, capricious,
or an abuse of discretion.
5 U.S.C. §§ 702, 706(2)(A); Reeb, 2011
WL 723106 at *1.
The Ninth Circuit recently determined that 18 U.S.C. § 3625
precludes judicial review under the APA of certain individualized
determinations by the BOP.
Reeb, 2011 WL 723106 *1.
In Reeb, the
petitioner challenged the BOP’s decision to expel him from an
intensive drug treatment program for federal inmates know as RDAP.
As the Reeb court discussed, the BOP has broad statutory discretion
over the entire RDAP program under 18 U.S.C. § 3621(e), and inmates
who successfully complete RDAP are eligible for a up to a one year
sentence reduction.
Reeb, 2011 WL 723106 at *1.
The petitioner
in Reeb contended the BOP lacked a rational basis for expelling him
from RDAP under § 706(2)(A) of the APA.
Id.
The Reeb court concluded that it lacked jurisdiction to hear
the claim, holding that 18 U.S.C. § 3625 unambiguously specified
that judicial review under the APA was precluded:
To find that prisoners can bring habeas petitions under
28 U.S.C. § 2241 to challenge the BOP’s discretionary
determinations made pursuant to 18 U.S.C. § 3621 would be
6 - OPINION AND ORDER
inconsistent with the language of 18 U.S.C. § 3625.
Accordingly, any substantive decision by the BOP to admit
a particular prisoner into RDAP, or to grant or deny a
sentence reduction for completion of the program, is not
reviewable by the district court. The BOP’s substantive
decisions to remove particular inmates from the RDAP
program are likewise not subject to judicial review.
Reeb, 2011 WL 723106 at *2.
I find Reeb instructive.
Like the RDAP program the BOP
administers under § 3621(e), the BOP in this case has the sole
authority to make RRC placement determinations under § 3621(b).
And, like the RDAP determination in Reeb, the BOP’s decision to
deny
petitioner’s
RRC
transfer
request
in
this
substantive, discretionary determination by the BOP.
case
is
a
Therefore,
like the RDAP decisions in Reeb, I conclude that RRC placement
decisions are properly left to the BOP’s discretion.
Accordingly,
I
conclude
that
the
BOP’s
substantive,
discretionary RRC decisions are not reviewable in the district
court pursuant to § 706(2)(A) of the APA.
Reeb, 2011 WL 723106 at
*2; accord Johnston, 2010 WL 2574090 at *6.
Thus, to the extent
that petitioner alleges the BOP’s denial of his RRC transfer
request was arbitrary and capricious, this court lacks jurisdiction
to hear the claim.
II.
The BOP Applied the Five Factors of § 3621(b).
To establish relief under § 2241, petitioner must show that he
is “in custody in violation of the Constitution or laws” of the
United States. 28 U.S.C. § 2241(c)(3). As petitioner concedes, he
7 - OPINION AND ORDER
has
no
Constitutional
institution.
right
to
be
placed
in
a
particular
Meachum v. Fano, 427 U.S. 215, 224 (1976).
And, it
is undisputed that the BOP must consider the five factors set forth
in 18 U.S.C. § 3621(b) when making placement decisions, including
RRC placements.
Rodriguez, 541 F.3d at 1188.
In this case, petitioner requested a transfer to an RRC on
June 22, 2010.
Pursuant to BOP policy, petitioner was informed
that his transfer request would be considered at his next regularly
scheduled Program Review.
immediately
filed
this
(Perona Dec., p. 2.)
action.
Contrary
to
Petitioner
petitioner’s
suggestion, he is not entitled to immediate consideration of his
RRC request.
Indeed, inmates are not entitled to individualized
consideration of the factors in § 3621(b) any time an inmate so
requests.
Calloway v. Thomas, 2009 WL 1925225, *7 (D. Or. July 1,
2009)(finding BOP not required to consider inmate RRC requests on
demand); accord Berry v. Sanders, 2009 WL 789890, *5 (C.D. Cal.
March 20, 2009)(stating that post-Rodriguez, the BOP may exercise
its discretion under § 3621(b) to place an inmate in an RRC, but
the BOP is not obligated to do so); Stockton v. Adler, 2008 WL
5136133, *3 (E.D.Cal. Dec. 8, 2008), adopted in full, 2009 WL
188145 (E.D.Cal. Jan. 23, 2009)(inmate has no statutory right to
immediate assessment or transfer under § 3621(b)); Comito v.
Federal Bureau of Prisons, 2008 WL 850216, *6 (E.D.Cal. March 28,
2008), adopted 2008 WL 2219976 (E.D.Cal. May 27, 2008)(same). See
8 - OPINION AND ORDER
also Miller v. Whitehead, 527 F.3d 752, 757 (8th Cir. 2008)(an
inmate is not "entitled to a full-blown analysis of a request to
transfer,
involving
individualized
consideration
of
all
five
factors in § 3621(b), whenever the inmate chooses to make such a
request").
The record demonstrates that the BOP evaluated petitioner’s
RRC transfer request on October 6, 2010.
As noted above, Mr.
Perona discussed how the BOP considered the five statutory factors
of § 3621(b).
(Perona Dec. p. 3.)
Mr. Perona provides details
concerning application of each of the five factors in petitioner’s
case.
(Id.
at
3-4
&
Attachments
6
&
7.)
The
BOP
denied
petitioner’s RRC transfer request because “he is currently housed
at the appropriate level facility for his correctional and public
safety needs.”
(Perona Dec. p. 4.)
It is evident that the BOP
provided the individualized consideration required under § 3621(b).
The statute does not require more.
In short, I conclude that petitioner has failed to demonstrate
that the BOP was acting contrary to or outside the broad authority
of § 3621(b), and therefore, habeas relief is denied.
III. Petitioner’s challenge to the BOP’s statutory interpretation
of § 3621(b) fails.
To the extent that petitioner challenges the BOP’s statutory
interpretation of § 3621(b) and the BOP’s policies incorporating
any
changes
required
9 - OPINION AND ORDER
by
§
3624(c),
his
arguments
have
been
rejected.
Sacora, 628 F.3d at 1066-70.
Based on the reasoning in
Sacora, petitioner is not entitled to habeas relief.
In
light
of
my
above
holdings,
I
decline
to
address
respondent’s remaining arguments that the petition is moot and that
petitioner has failed to exhaust his administrative remedies.
CONCLUSION
Based on the foregoing, petitioner's petition for writ of
habeas corpus (#1) is DENIED, and this proceeding is DISMISSED.
IT IS SO ORDERED.
DATED this _10_ day of MAY, 2011.
_/s/ Malcolm F. Marsh_______
Malcolm F. Marsh
United States District Judge
10 - OPINION AND ORDER
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