Suesue v. Thomas
Filing
16
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is DENIED with prejudice. IT IS SO ORDERED. Signed on 4/20/2011 by Judge Michael W. Mosman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DEVEN SUESUE,
CV. 10-1295-MO
Petitioner,
v.
OPINION AND ORDER
JEFFREY THOMAS, Warden,
Respondent.
STEPHEN R. SADY
Office of the Federal Public Defender
101 SW main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
DWIGHT C. HOLTON
United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - OPINION AND ORDER
Mosman, District Judge.
Petitioner, an inmate at Federal Correctional Institution,
Sheridan, Oregon ("FCI Sheridan") at the time of filing, brings
this habeas corpus action pursuant to 28 U.S.C. § 2241.
He alleges
the Bureau of Prisons' ("BOP") regulations, codified at 28 C.F.R.
§ 550.55(b)(5)(2009), that categorically disqualify inmates with a
current felony conviction for an offense involving the carrying,
possession, or use of a firearm or other dangerous weapon or
explosives from the early release incentive associated with the
Residential Drug Abuse Treatment Program ("RDAP"), are procedurally
invalid.
Petitioner
asks
the
Court
to
invalidate
the
2009
regulations under the Administrative Procedures Act ("APA"), and
order the BOP to evaluate his eligibility for the early release
incentive without regard to the 2009 rules.
For the reasons set
forth in Peck v. Thomas, CV 10-709 (Mar. 30, 2011), the Court finds
28 C.F.R. § 550.55(b)(5)(2009) valid under the APA.
Accordingly,
Petitioner is not entitled to relief and the Writ of Habeas Corpus
(#2) is DENIED.
BACKGROUND
I.
Statutory Background.
In 18 U.S.C. §§ 3621-3625, Congress vested the BOP with broad
authority to manage the imprisonment of a convicted person, and
specified "[t]he Bureau shall make available appropriate substance
abuse treatment for each prisoner the Bureau determines has a
treatable condition of substance addiction or abuse."
2 - OPINION AND ORDER
18 U.S.C.
§ 3621(b). In § 3621(e), Congress articulated a specific statutory
mandate for residential substance abuse treatment programs for
"eligible prisoners."
The program the BOP created to satisfy this
mandate is the Residential Drub Abuse Program ("RDAP").
In 1994, Congress enacted the Violent Crime Control Law
Enforcement Act of 1994 ("VCCLEA"), which amended 18 U.S.C. § 3621
to include a discretionary early release incentive for inmates
convicted of non-violent offenses who successfully completed RDAP.
18 U.S.C. § 3621(e)(2).1
The statute does not define "non-violent
offenses."
Beginning in 1995, exercising its broad discretion under the
statute, the BOP promulgated a series of implementing regulations
and internal agency guidelines for administering the early release
incentive
for
non-violent
offenders.2
These
regulations
and
guidelines have excluded inmates convicted of a felony involving a
firearm from eligibility for early release under § 3621(e)(2). The
1
Section 3621(e)(2)specifies in relevant part:
(A) Generally. Any prisoner who, in the judgment of the
Director of the [BOP], has successfully completed a program
of residential substance abuse treatment provided under
paragraph (1) of this subsection, shall remain in the
custody of the [BOP] under such conditions as the Bureau
deems appropriate.
(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 [BOP],
but such reduction may not be more than one year from the
term the prisoner must otherwise serve."
2
The regulations and internal guidelines relevant to this
action include: 28 C.F.R. § 550.55(b)(5)(ii)(2009); Program
Statement P5331.02 and P5162.05 (effective March 16, 2009).
3 - OPINION AND ORDER
substantive
and
procedural
validity
of
the
BOP's
categorical
exclusion of inmates from eligibility for early release have been
challenged in court repeatedly.
The Ninth Circuit upheld the substantive validity of 28 C.F.R.
§ 550.58(a)(1)(vi)(B) in Bowen v. Hood, 202 F.3d 1211 (2000).3
The
circuit court held the categorical exclusion of certain inmates
from early release eligibility was a proper exercise of the BOP's
discretion
under
the
statute,
and
stated:
"we
see
nothing
unreasonable in the Bureau's making the common-sense decision that
there is a significant potential for violence from criminals who
carry, possess or use firearms while engaged in their felonious
employment, even if they wound up committing a nonviolent offense
this time."
Id. at 1119.
The following year, the Supreme Court
upheld the substantive validity of the BOP's categorical exclusion
of inmates from eligibility for early release in Lopez v. Davis,
531 U.S. 230 (2001).
Finding 28 C.F.R. § 550.58(a)(1)(vi)(B) was
a proper exercise of the Bureau's discretion under the statute, the
Court stated:
[T]he Bureau need not blind itself to pre-conviction
conduct that the agency reasonably views as jeopardizing
life and limb.
*****
[T]he statute's restriction of early release eligibility
to nonviolent offenders does not cut short the
considerations that may guide the Bureau. [T]he Bureau
3
28 C.F.R. § 550.58(a)(1)(vi)(B)(2000) was re-codified as 28
C.F.R. § 550.55(b)(5)(ii)(2009).
4 - OPINION AND ORDER
may consider aspects of the conduct of conviction, even
though the conviction is a criterion of statutory
eligibility.
Id. at 243-244.
The Court also held the "Bureau reasonably
concluded than 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.
In Lopez, the Supreme Court did not address the procedural
validity of the categorical exclusions under the APA.
Id. at 244
n.6 (notice and comment requirement "not raised or decided below,
or presented in the petition for certiorari.").
Circuit,
however,
the
BOP's
regulations
and
In the Ninth
related
program
statements have been invalidated under § 706(2)(A) of the APA.
Section 706(2)(A) specifies a "reviewing court shall hold unlawful
and set aside agency action, findings, and conclusions found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law."
II.
Ninth Circuit Litigation Under 5 U.S.C. § 706(2)(A).
A.
1995 Rule - 28 C.F.R. § 550.58(a)(1995).
In § 550.58 and Program Statement P5162.02, an accompanying
internal agency guidelines, the BOP defined which inmates had been
convicted of "crimes of violence" and would therefore be excluded
from eligibility for early release. "Felon firearm possession" was
categorized as a crime of violence rendering inmates ineligible for
early release.
In Davis v. Crabtree, 109 F.3d 566, 568-70 (9th
5 - OPINION AND ORDER
Cir. 1997)(inmate convicted of being felon in possession of a
firearm),
the Ninth
Circuit
held
that the
offense
"felon
in
possession of firearm" had to be regarded as a nonviolent offense
for purposes of § 3621(e) sentence reduction, and therefore the
regulation was invalid.
The court stated: "the BOP may not
interpret the term “nonviolent offense” to exclude the offense of
felon in possession of a firearm.
We are bound by Downey [v.
Crabtree, 100 F.3d 662 (9th Cir. 2006)(crime of violence does not
encompass felon firearm possession under Ninth Circuit law)(citing
cases)]."
B.
Davis, 109 F.3d at 668-70.
1997 Interim Rule.
Responding
to
a
Circuit
split
on
the
question
of
the
substantive validity of the 1995 regulations, the BOP promulgated
28 C.F.R. § 550.58(a)(1)(vi)(B)(1997).
relied
on
the
Director's
discretion
In this rule, the BOP
under
the
statute
to
categorically exclude inmates convicted of certain offenses from
early release eligibility, including those with offenses involving
the carrying, possession, or use of firearms, instead of relying on
an interpretation of the statutory language "non-violent offenses"
as it had in the 1995 rule.
In Paulsen v. Daniels, 413 F.3d 999
(9th Cir. 2005), the Ninth Circuit found the BOP violated the APA
in promulgating the 1997 interim rule because (1) the interim
regulation was made effective prior to its publication in the
Federal Register; and (2) although the BOP solicited comments, the
6 - OPINION AND ORDER
comments were not taken into account prior to the regulation being
made effective.4
C.
In
2000 Final Rule.
December
2000,
respecting
the
notice
and
comment
requirement under § 553 of the APA, the BOP promulgated 28 C.F.R.
§ 550.58(a)(1)(vi)(B)(2000), a final regulation that was identical
to the 1997 interim rule.
In Arrington v. Daniels, 516 F.3d 1106,
(9th Cir. 2008) the Ninth Circuit invalidated the rule under
§ 706(2)(A) of the APA.
The Ninth Circuit found the first
rationale identified by the lower court as a basis for categorical
exclusion - the increased risk that offenders with convictions
involving firearms might pose to the public - was "entirely absent
from the administrative record." Arrington, 516 F.3d at 1113. The
court noted,
the Bureau articulated this rationale in its brief to the
Supreme Court in Lopez . . . and is precisely the type of
post-hoc rationalization . . . that the [court is
forbidden] to consider in conducting review under the
APA.
Because no public safety rationale is present in the
administrative record, the district court erred in
relying on this explanation as a basis for its conclusion
that the final rule withstands arbitrary and capricious
review.
4
Under the APA, agencies issuing rules must: (1) publish
notice of the proposed rule-making in the Federal Register; (2)
provide a period of comment on the proposed rule and consider
comments submitted during the period before adopting the rule;
and (3) publish the adopted rule not less than thirty days before
its effective date. 5 U.S.C. § 553(b)-(d).
7 - OPINION AND ORDER
Id. The Ninth Circuit also found the second rationale proffered by
the BOP, need
exclusion
for
uniformity, did
of prisoners
with
not justify
non-violent
a categorical
convictions
involving
firearms instead of a categorical inclusion of prisoners with nonviolent convictions involving firearms.
Id. at 1114.
The court
found the BOP had not explained why, in seeking uniformity, it
chose to exclude prisoners rather than include them.
Id.
As a result of the Davis and Arrington decisions, the BOP
promulgated new interim rules governing early release eligibility.
In January 2009, the BOP promulgated a final rule, and again relied
on the discretion of the Director under the governing statute, as
recognized in Lopez, to categorically exclude inmates convicted of
certain offenses.5
The validity of the 2009 Rule, specifically 28
C.F.R. § 550.55(b)(5), is the subject of this habeas action.
III. Factual Background.
Petitioner was convicted in April 2008 of felon in possession
of a firearms and ammunition, in violation of 18 U.S.C. §§ 922
(g)(1) and 924 (a)(2).
(#14, Attach. 1.)
He was sentenced to 70
months imprisonment to be followed by three years of supervised
release.
(Id.)
Petitioner's
date is November 18, 2012.
5
projected good-time credit release
(#13, at 3.)
In one action, the 2009 Rule finalized three proposed
rules, issued in 2000, 2004, and 2006. 74 FR 1892-01, 2009 WL
76657 (January 14, 2009.) The 2009 rules are applicable to all
inmates applying to RDAP after March 16, 2009.
8 - OPINION AND ORDER
Petitioner was admitted to the RDAP program on August 23,
2010, and on August 30, 2010, he was determined to be ineligible
for early release under 18 U.S.C. § 3621(e).
(#13, Attach. 3.)
The Offense Review form listed the precluding offense information
and relevant other information as follows: "Felon in Possession of
Firearms and
Ammunition,
18
USC
922(g)
and 924
-
precluding
pursuant to 28 C.F.R. § 550.55(b)(5((ii), (iii) & (6), in addition
to PS 5162.05 sections 3.a, 3.c, 4.d and 4.e."
(Id. Attach. 2.)
Petitioner challenges the validity of the rules under which the BOP
designated him ineligible for early release under § 706 of the APA.
(#15, at 11.)
DISCUSSION
In Lopez v. Davis, the Supreme Court held that the BOP has
discretion
under
18
U.S.C.
§
3621
to
promulgate
regulations
categorically denying the early release incentive associated with
RDAP to prisoners who possessed a firearm in connection with their
offenses, and that it was reasonable for the BOP to do so.
U.S. 230.
531
Thus, the issue in this proceeding is not whether the
BOP has the authority under the governing statute to promulgate
such
a
categorical
exclusion,
consistent with the statute.
or
whether
the
exclusion
is
Rather, the issue is whether the
exclusion in the 2009 rule, codified at 28 C.F.R. § 550.55(b)(5),
is invalid under § 706(2)(A) of the APA because it is arbitrary and
capricious.
9 - OPINION AND ORDER
The Court previously resolved precisely this issue in Peck v.
Thomas, CV. 10-709 (Mar. 30, 2011), finding the regulations valid
and denying habeas relief. For the same reasons, Petitioner is not
entitled to habeas relief.6
CONCLUSION
Based on the foregoing, the Petition for Writ of Habeas Corpus
(#2) is DENIED with prejudice.
IT IS SO ORDERED.
DATED this
20th
day of April, 2011.
/s/ Michael W. Mosman
Michael W. Mosman
United States District Judge
6
To the extent Petitioner raises an Equal Protection claim
in his pro se petition, that claim must fail because he does not
present facts demonstrating he was treated differently from other
similarly situated inmates. Reeb v. Thomas, 2011 WL 723106 (9th
Cir. March 3, 2011).
10 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?