Ingram v. Thomas et al
Filing
11
OPINION AND ORDER. Petitioner's petition for writ of habeas corpus 2 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
CHARLES M. INGRAM,
Petitioner,
CV. 10-1320-MA
OPINION AND ORDER
v.
J.E. THOMAS, Warden, FCI
Sheridan,
Respondent.
CHARLES M. INGRAM
15008-045
Sheridan Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 5000
Sheridan, OR 97378
Pro Se
DWIGHT C. HOLTON
United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
MARSH, Judge
Petitioner Charles M. Ingram, 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) failure to address his
request for an immediate transfer to a residential reentry center
(RRC) under 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 110-month sentence for
possession of a firearm by a convicted felon and unlawful use of a
controlled substance in violation of 18 U.S.C. § 922(g)(1) & (3),
and § 924(a)(2).
Petitioner’s projected release date is November
22, 2011, via good conduct time.
On April 1, 2010, as part of his pre-release plan under
§ 3624(c), petitioner’s Unit Team recommended an RRC placement of
120 to 150 days.
(Declaration fo Randolph Ament (#9)(Ament Dec.)
Att. 8, p. 13.) On August 18, 2010, petitioner submitted an Inmate
Request to Staff seeking an eight to 12 month RRC placement.
(Ament Dec. Att. 3.)
On August 30, 2010, Unit Manager T. Boldt
responded to petitioner’s request. Mr. Boldt reviewed petitioner’s
request,
his
file
material,
and
discussed
his
request
with
petitioner’s Case Manager. (Id.) Mr. Boldt specifically discussed
the following:
Your behavior during this offense included a high speed
police pursuit which caused significant hazard to other
drivers who were forced off the roadway. While driving
2 - OPINION AND ORDER
dangerously, you struck the female passenger in the
vehicle with a .38 caliber pistol when she begged to be
let our of the vehicle due to your dangerous behavior.
...
Your institutional program participation includes one
occasion of drug use in September 2009; one occasion of
possession of drug items (hype kit) in January 2009;
stealing in September 2007, and three occasions of
possessing tattoo paraphernalia [in] January 2009,
November 2009, and February 2010. ...
There was no recommendation for pre-release RRC placement
from your sentencing judge. You indicate you must be in
the community within a year or your children “will be
placed for adoption.” The documentation you provided did
not mention any deadline for you to return to the
community. In fact, the NOTICE TO INCARCERATED INMATE
dated May 3, 2010, provides you seven ways you can show
commitment to your children and preserve your rights as
a parent. ... (Id.)
Lastly, Mr. Boldt noted that petitioner had a June 24, 2011
RRC placement in Missouri, the state where petitioner’s children
reside, and concluded that “the unit team’s recommendation of ...
120 to 150 days prerelease RRC placement is seen as sufficient.”
(Id. at 4.)
On
September
17,
2010,
petitioner
filed
a
Request
for
Administrative Remedy, contending that he did not get enough
prerelease time, again seeking a 12 month placement.
On September
27, 2010, FCI Sheridan Warden J.E. Thomas denied petitioner’s
request:
A thorough investigation into your complaint has been
conducted. Your release date is November 22, 2011, and
at this time, you have an RRC placement date of June 29,
2011.
The Unit Team considered the nature and
circumstance of your offense, risk for recidivism,
3 - OPINION AND ORDER
program participation, need for services, time it will
take for you to establish community support, public
safety, and facility resources. After considering each
of these factors, the Unit Team recommended 120-150 days
at RRC.
The RRC accepted you for 147 days as an
appropriate amount of time to assist you in a successful
transition back into the community. (Ament Dec. Att. 10,
p. 4.)
There is no record of petitioner filing an appeal with the Western
Regional Director.
On October 22, 2010, petitioner filed his current petition
for writ of habeas corpus, seeking an immediate placement in an RRC
pursuant to 18 U.S.C. § 3621(b).
On December 2, 2010, petitioner met with his Unit Team and it
appears that he requested an immediate transfer to an RRC for the
remainder of his sentence under § 3621(b).
(#10) Att. 5.)
(Petitioner’s Reply
The Unit Team denied his § 3621(b) request for a
transfer based on his current custody classification.
I.
(Id.)
Statutory Background.
Congress has delegated inmate placement authority to the BOP
in two statutes:
18 U.S.C. §§ 3621(b) and 3624(c).
Under §
3621(b), the BOP has been delegated broad discretionary authority
to determine the proper placement of inmates at the start of an
inmate's prison term.
E.g., Rodriguez v. Smith, 541 F.3d 1180,
1182 (9th Cir. 2008). Placement designations require consideration
of the five factors set forth in § 3621(b):
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
4 - OPINION AND ORDER
(3) the history and characteristics of the prisoner;
(4) 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).
When considering the transfer of an inmate during the course of his
imprisonment, the BOP must consider these same five factors.
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).
Under § 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.
1062 (9th Cir. 2010).
Sacora v. Thomas, 628 F.3d 1059,
The five factors of § 3621(b) also apply
when making RRC placements. 18 U.S.C. § 3624(c)(6); 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.
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).
5 - OPINION AND ORDER
DISCUSSION
In this proceeding, petitioner contends that the BOP has
refused to assess his RRC placement request pursuant to § 3621(b),
and has unlawfully and categorically denied placing him in an RRC
until 120 to 150 days prior to completion of his sentence.
Respondent moves to deny habeas relief on several grounds:
(1) this court lacks jurisdiction under 18 U.S.C. § 3625; (2)
petitioner has no right to transfer on demand; (3) petitioner’s
claim is not ripe; and (4) petitioner has not exhausted his
administrative remedies.
Based upon my careful review of the record, it does not appear
that petitioner made a specific RRC transfer request under
§ 3621(b) until sometime after he filed his present habeas corpus
petition.
It is not entirely clear that petitioner has exhausted
his present § 3621(b) claim.
331 (9th Cir. 1991).
See Tucker v. Carlson, 925 F.2d 330,
As discussed above, the record contains
several requests for review and administrative responses concerning
the length of petitioner’s prerelease placement under § 3624(c).
However, the only evidence in the record that petitioner attempted
to exhaust is contained in an informal Request to Staff dated
December
13,
2010.
(Reply
(#10)
Att.
5.)
Regardless
of
petitioner’s failure to exhaust, his claim fails on the merits.
First, to the extent that petitioner challenges the BOP’s
denial of an immediate RRC placement as arbitrary and capricious
6 - OPINION AND ORDER
under § 706(2)(A) of the APA, this court lacks jurisdiction.
Respondent contends that 18 U.S.C. § 3625 precludes judicial review
of petitioner’s contention that the BOP failed to properly consider
his
RRC
transfer
jurisdiction.
request
under
§
3621(b),
(Petition (#2) p. 2-3.)
this
court
lacks
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 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:
7 - OPINION AND ORDER
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
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 request for an immediate RRC placement is a
substantive, discretionary determination by the BOP.
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 contends the BOP’s denial of his RRC transfer
request was arbitrary and capricious, this court lacks jurisdiction
to hear the claim.
Second, to the extent that petitioner is challenging the BOP’s
interpretation of § 3621(b), § 3624(c), and the BOP’s RRC placement
rules and policies, his claims have been rejected.
8 - OPINION AND ORDER
Sacora, 628
F.3d at 1066-70.
Based on the reasoning in Sacora, petitioner is
not entitled to habeas relief.
Third, contrary to petitioner’s suggestion, 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 postRodriguez, 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 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").
And fourth, petitioner has failed to demonstrate that he is
entitled to relief under § 2241. To establish relief under § 2241,
petitioner must show that he is “in custody in violation of the
Constitution
or
laws”
9 - OPINION AND ORDER
of
the
United
States.
28
U.S.C.
§
2241(c)(3). Petitioner has no Constitutional right to be placed in
a particular institution or to pass through an RRC at the end of
his sentence.
Meachum v. Fano, 427 U.S. 215, 224 (1976); United
States v. Laughlin, 933 F.2d 786, 789 (9th Cir. 1991).
As noted above, petitioner’s request for an immediate RRC
transfer was considered and rejected.
The BOP determined that an
immediate RRC placement was not appropriate. Petitioner has failed
to demonstrate that the BOP was acting contrary to or outside the
broad statutory authority of § 3621(b) or § 3624(c) when making
that decision.
Accordingly, habeas relief is denied.
CONCLUSION
Based on the foregoing, petitioner's petition for writ of
habeas corpus (#2) 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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