Ryan v. Thomas
Filing
38
OPINION AND ORDER. Petitioner's Petition for Writ of Habeas Corpus 1 is DENIED. IT IS SO ORDERED. Signed on 5/22/2012 by Judge Michael W. Mosman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TREVOR RYAN,
Petitioner,
v.
3:11-cv-00448-MO
OPINION AND ORDER
JEFFERY THOMAS,
Respondent.
TREVOR RYAN
#06754-090
Taft Federal Correctional Institution
P.O. Box 7001
Taft, CA 93268
Pro Se Petitioner
S. AMANDA MARSHALL
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 the Federal Correctional Institution,
Sheridan, Oregon, at the time he filed his petition, brings this
action pursuant to 28 U.S.C. § 2241.
Petitioner is pro se and,
accordingly, the Court construes his pleadings liberally.
See
Estelle v. Gamble, 429 U.S. 97, 106 (1976)(courts construe pro se
pleadings liberally); Porter v. Ollison, 620 F.3d 952 (9th Cir.
2010)(prisoner pro se pleadings are given the benefit of being
liberally construed).
Petitioner alleges he has unlawfully been denied eligibility
for the early release incentive associated with the Bureau of
Prisons ("BOP") Residential Drug Abuse Program ("RDAP"). He argues
that the 2009 regulations governing RDAP have an impermissible
retroactive effect and violate the Administrative Procedures Act
("APA"). Petitioner asks the Court to declare the BOP's RDAP early
release
incentive
policies
and
his
unlawful, and grant habeas relief.
ineligibility
designation
Because the Court finds the
regulations and internal agency guidelines under which Petitioner
was denied early release are lawful and were lawfully applied, the
Petition for Writ of Habeas Corpus (#1) 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
2 - OPINION AND ORDER
abuse treatment for each prisoner the Bureau determines has a
treatable condition of substance addiction or abuse."
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 Drug Abuse Program ("RDAP").
When
Congress
enacted
the
Violent
Crime
Control
Law
Enforcement Act of 1994, 18 U.S.C. § 3621 was amended to include a
discretionary early release incentive for inmates convicted of
nonviolent offenses who successfully completed RDAP. See 18 U.S.C.
§ 3621(e)(2).1
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 under 3621(e)(2).
The regulations and
guidelines exclude certain categories of inmates from early release
eligibility.
See 28 C.F.R. §§ 550.55(b) (2009).
The substantive
and procedural validity of these categorical exclusions have been
challenged in court repeatedly.
1
The substantive validity of the
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.
3 - OPINION AND ORDER
regulations -- that is, the BOP's authority under the statute to
exclude categories of inmates from early release eligibility -- is
now well established.
categorical
exclusion
See Lopez v. Davis, 531 U.S. 230 (2001)(the
of
certain
inmates
from
early
release
eligibility was a proper exercise of the BOP's discretion under the
statute); Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000) (same,
upholding 28 C.F.R. § 550.58(a)(1)(vi)(B));2 Jacks v. Crabtree, 114
F.3d 983, 984-86 (9th Cir. 1997) (BOP has discretion under the
statute to issue regulations categorically denying early release).
The procedural validity of the regulations, however, continues to
be challenged.3
Section
553
of
the
APA
outlines
notice
and
comment
requirements for issuing agency regulations.4 Section 706(2)(A) of
the APA 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
2
28 C.F.R. § 550.58(a)(1)(vi)(B)(2000)(disqualifying inmates
with offenses that involved the carrying, possession, or use of a
firearm or other dangerous weapon or explosives) was re-codified
as 28 C.F.R. § 550.55(b)(5)(ii)(2009).
3
In Lopez, the Supreme Court did not address the procedural
validity of the categorical exclusions under the APA. 531 U.S.
at 244 n.6.
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).
4 - OPINION AND ORDER
accordance with law."
The Ninth Circuit has invalidated several
versions of the BOP regulations implementing the early release
incentive on a procedural basis under either § 553 or § 706(2)(A)
of the APA.
See Paulsen v. Daniels, 413 F.3d 999, 1005 (9th Cir.
2005) (1997 interim rule invalid because BOP violated notice and
comment requirements of § 553);
Arrington v. Daniels, 516 F.3d
1106, 1113 (9th Cir. 2008) (invalidating 2000 regulation because
"the administrative record contains no rationale explaining the
[BOP's]
decision
to
categorically
exclude
prisoners
with
convictions involving firearms").
The BOP issued the current regulations ("2009 regulations")
effective March 16, 2009.5
discretion
of
the
Director
In doing so, the BOP relied on the
under
the
governing
statute,
as
recognized in Lopez, to exclude certain categories of inmates from
early
release
eligibility.
In
challenges
to
the
procedural
validity of the current regulations under the APA, this Court has
upheld the validity of the 2009 regulations.
Thomas,
787
F.Supp.2d
1145
(D.Or.,
March
See e.g. Peck v.
30,
2011)(upholding
§ 550.55 (b)(5)); Moon v. Thomas, 787 F.Supp.2d 1154 (D.Or., April
1, 2011)(upholding § 550.55 (b)(4)& (b)(5)); Ruby v. Thomas, 2011
WL 1549205 (D.Or., April 21, 2011)(upholding Program Statement rule
that RDAP eligibility interviews are to be held ordinarily no less
5
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.)
5 - OPINION AND ORDER
than 24 months from release); Fiscus v. Thomas, 2011 WL 2174025
(D.Or., May 31, 2011)(upholding sliding scale sentence reduction).
The BOP applies the 2009 regulations and accompanying Program
Statements to inmates who were interviewed for RDAP and found
eligible to participate -- by the BOP -- after March 16, 2009, the
effective date of the regulations.
See Mora-Meraz v. Thomas, 601
F.3d 933, 936 n.4 (9th Cir. 2010) (drug abuse program rules are
prospective in nature, citing Bowen, 202 F.3d at 1220-21 and Cort
v. Crabtree, 113 F.3d 1081, 1085 (9th Cir. 1997)).
II.
Procedures for Participating in RDAP
The authority to administer RDAP and other treatment programs
is delegated to the BOP.
See 18 U.S.C. § 3621(b), (e), and (f).
The BOP has plenary control, subject to statutory constraints, over
inmate participation in treatment programs.
Tapia v. United
States, 131 S.Ct. 2382, 2391 ("A sentencing court can recommend ...
but decision making authority rests with the BOP.")
The
2009
implementing
regulations
and
the
preceding
regulations, promulgated in 2000, specify that to participate in
RDAP an inmate: (1) may be referred by unit team or drug treatment
staff, or (2) may apply for the program by submitting a request to
staff, "ordinarily a member of the unit team or the Drug Abuse
Program Coordinator."
28 C.F.R. § 550.53(c)(2009); 28 C.F.R.
§ 550.56(b)(2000). Both the 2000 and 2009 regulations also specify
that it is the Drug Abuse Program Coordinator who makes the final
6 - OPINION AND ORDER
determination, based on admission criteria, regarding an inmate's
participation
in
RDAP.
See
28
C.F.R.
§
550.53(e)(2009);
§ 550.56(b)(2000).
Internal agency guidelines specify that a staff referral for
participation
in
RDAP,
or
an
inmate's
application
for
participation, leads to screening for documentation verifying a
substance abuse problem.
See Program Statement P5330.11, 2.5.8-
RDAP Program Admission (2009). Inmates who pass screening are then
referred for a clinical interview with the Drug Abuse Program
Coordinator, who will make a determination as to whether the inmate
is eligible to be placed in RDAP.6
Id. at 2.5.9.7
Pursuant to 18 U.S.C. § 3621(e)(2), the BOP may grant up to
one year of early release incentive to inmates convicted of a nonviolent
offense
following
the
successful
completion
of
RDAP.
Criteria for early release and procedures to determine eligibility
are outlined in Program Statement P5331.02 (3/16/2009).
Early
release eligibility determinations are made by legal staff at the
6
The preceding Program Statement, issued in 1997, described
similar procedures for the determination of RDAP eligibility.
See P5330.10, Chpt. 2, 2.3.1 (1997).
7
2.5.9 The Clinical Interview. § 550.53(e) Placement in
RDAP. The Drug Abuse Program Coordinator decides whether to
place inmates in RDAP based on the criteria set forth in
paragraph (b) of this section.
If verifying documentation is found or produced, and
only then, inmates who volunteer for the RDAP will be
personally interviewed by the DAPC. Interviews will be
conducted based on the inmate's proximity to release,
ordinarily no less than 24 months from release. * * *
7 - OPINION AND ORDER
BOP's centralized
Designation
and
Sentence
Computation Center
("DSCC") after inmates are designated eligible for RDAP and the
Drug Abuse Program Coordinator submits a Request for § 3621(e)
Review to the DSCC.
Section 3621(e) review includes a review of
both current conviction offense(s) and prior conviction offense(s).
Program Statement P5331.02, pp. 1, 5-7.
II.
Statement of the Case
In January 2008, the Drug Enforcement Agency ("DEA") and the
State of California conducted a raid on the medical marijuana
clinic Petitioner operated from his home in Southern California.
(#1, Pet., Ex. 05 at 2.)
Petitioner was not home at the time, but
marijuana and eight firearms were seized. (Id.)
On October 18,
2008, Petitioner was arrested in Wisconsin when he was found "with
147 pounds of Marijuana aboard a private twin-engine plane." (Id.)
In December 2008, pursuant to a plea agreement, Petitioner pled
guilty in U.S. District Court for the Western District of Wisconsin
to one count of Possession with Intent to Distribute at Least 50
Kilograms of Marijuana, in violation of 21 U.S.C. §§ 841(a)(1).
(#1, at 1 and Ex. 01, at 1.)
On March 10, 2009, Petitioner was
sentenced to 65 months imprisonment, which included a 2-point
Specific Offense
Characteristic
enhancement
firearms in connection with his offense.
for
possession of
(#9, Attachs. 1 and 2.)
The sentencing court recommended Petitioner be afforded substance
abuse and mental health counseling during his incarceration, and
8 - OPINION AND ORDER
that pre-release placement be in a residential re-entry center with
work privileges. (#1, Ex. 01 at 2.)
Petitioner was in custody from the time of his arrest.
at 2.)
(#1,
BOP records show Petitioner was in holdover status or in
transit from May 22, 2009, to June 4, 2009; and was formally
designated to Taft Correctional Institution ("TCI") on June 4,
2009.
(#9, at 3; Attach. 3.)
On February 23, 2010, Petitioner was
interviewed for RDAP by staff at TCI and found to be eligible, and
he was placed on the waitlist.
(Id.; #1, Ex. 05 at 3.)
On March
19, 2010, legal staff at the DSCC completed the requisite Offense
Review for the early release incentive pursuant to § 3621(e), and
concluded Petitioner was ineligible.
(#1, Ex. 03.)
The offense
review specified:
The inmate's current offense conviction: ***
(2) involved the carrying, possession, or use of a
firearm .... (28 C.F.R. § 550.55(b)(5)(ii))[.]
(3) by its nature or conduct, presents a serious
potential risk of physical force against the person or
property of another (28 C.F.R. § 550.55(b)(5)(iii))[.]
***
21 U.S.C. 841(a)(1); Possession with intent to Distribute
Cocaine Base. In the Presentence Investigation Report,
paragraph 37, a 2-point Specific Offense Characteristic
(SOC) enhancement for firearms possession was assessed.
The Court adopted the SOC in the Statement of Reasons.
This offense, therefore, is precluding pursuant to
regulations cited above, in addition to PS 5162.05,
section 4.b.
NOTE: The Arrington decision does not apply since the
inmate requested to participate in RDAP after 3/16/09,
the effective date of the new regulations.
9 - OPINION AND ORDER
(Id.)8
Petitioner argues it is a retroactive application of law to
apply the 2009 regulations governing RDAP in his offense review
because the regulations were promulgated after he was arrested;
after he entered his plea; and after he was sentenced.
(#1, at 4.)
He contends he would not have pled guilty but for assurances he
would
be
eligible
for
sentence
reduction
after
successfully
completing RDAP and he argues his offense is a non-violent offense.
(Id. at 9-10.)
He further argues that the 2009 regulations under
which he was designated ineligible were promulgated in violation of
the
Administrative
impermissible
statutory
Procedures
retroactive
authority
§ 3621(e)(2)(B).
Act;
effect;
when
(#1, at 14.)
the
and
BOP
the
construing
policies
BOP
and
have
exceeded
an
its
implementing
In addition, Petitioner disputes
his disqualification based on the 2-point gun enhancement because
the guns were not in his presence when he was arrested and they
were properly registered.
(Id., at 9.)
Petitioner asks the Court
to declare that the BOP unlawfully denied him a sentence reduction
available under § 3621(e).
DISCUSSION
District courts do not have jurisdiction to review "any
substantive decision by the BOP to admit a particular prisoner into
RDAP, or to grant or deny a sentence reduction for completion of
8
The Court notes the offense review incorrectly identifies
the offense as involving Cocaine Base. The clerical error is of
no consequence in this action.
10 - OPINION AND ORDER
the program."
Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011).
The Court does, however, have jurisdiction to review BOP action
alleged to be contrary to established federal law or to exceed the
agency's statutory authority.
I.
Id. at 1228.
BOP's Statutory Authority
As
discussed
above,
Congress
vested
the
BOP
with
broad
authority to manage the imprisonment of a convicted person, within
statutory parameters.
restrict
early
Pursuant to § 3621(e)(2), the BOP must
release
eligibility
to
non-violent
offenders.
Section 3621 does not, however, preclude the BOP from imposing
further restrictions on early release eligibility and disqualifying
some non-violent offenders.
Lopez, 531 U.S. at 244 (statute
requires BOP limit early release to non-violent offenders, but does
not
restrict
BOP
from
imposing
further
restrictions
eligibility); Jacks, 114 F.3d at 984-86 (same).
on
Accordingly,
Petitioner's argument that the BOP exceeded its statutory authority
in construing and implementing § 3621(e)(2)(B) such that he is
ineligible for early release due to the 2-point enhancement is
without merit.9
II.
Program Statement Validity
Petitioner
argues
9
that
Program
Statements
P5331.02
To the extent Petitioner seeks to challenge the Specific
Offense Enhancement adopted by the U.S. District Court for the
Western District of Wisconsin, this Court does not have
jurisdiction. Such a claim is properly brought in an action
pursuant to 28 U.S.C. § 2255, filed in the sentencing court.
11 - OPINION AND ORDER
and
P5330.11
were
promulgated
Procedures Act.
inconsistent
in
violation
of
the
Administrative
So long as Program Statement provisions are not
with
the
associated
regulations,
they
are
valid
interpretive rules not subject to the rule-making requirements of
the APA.
Gunderson v. Hood, 268 F.3d 1149, 1154 (9th Cir. 2001);
see also Mora-Meraz, 601 F.3d at 939-40 (12-month rule is an
interpretive rule).
The BOP's Program Statements are internal
agency guidelines, not inconsistent with the regulations, and not
subject to the notice and comment requirements of the APA.
See
Reeb, 636 F.3d at 1227; see also Reno v. Koray, 515 U.S. 50, 61
(1995)(BOP program statements are interpretive rules); Peck, 787
F.Supp.2d
2245
(upholding
28
C.F.R.
§
550.55(b)(5)).
Thus,
Petitioner's argument that the program statements violate the APA
cannot stand.
follow
its
To the extent Petitioner argues the BOP does not
internal
guidelines
and
is,
therefore,
acting
unlawfully, the claim cannot give rise to habeas relief. Reeb, 636
F.3d at 1227 (noncompliance with internal agency guideline is not
a violation of federal law).
III. Retroactive Effect
The issue remaining before the Court is whether it was lawful
for the BOP to conduct Petitioner's early release eligibility
determination pursuant to the 2009 regulations, or whether doing so
violated
the
retroactivity
doctrine
because
Petitioner
was
arrested, entered a plea, and was sentenced before the March 16,
2009, effective date of the regulations.
12 - OPINION AND ORDER
For the reasons that
follow, the Court finds the BOP did not exceed its statutory
authority or violate the retroactivity doctrine in applying the
2009 regulations to Petitioner's eligibility determination and,
therefore, habeas relief is not warranted.
A.
The
Retroactivity Doctrine
retroactivity
doctrine
conveys
the
long-standing
presumption against the retroactive application of laws when such
an
application
acquired
under
would
"tak[e]
existing
laws,
away
or
or
impai[r]
creat[e]
a
vested
new
rights
obligation,
impos[e] a new duty, or attac[h] a new disability, in respect to
transactions or considerations already past."
Vartelas v. Holder,
---S.Ct.---, 2012 WL 1019971 *6 (March 28, 2012)(alteration in
original)(quoting Society for Propagation of Gospel v. Wheeler, 22
F.Cas. 756, 767 (No. 13, 156)(CCNH 1814), Story, J.)
Unless
expressly conveyed by Congress, rule-making authority is generally
understood not to encompass the promulgation of retroactive rules.
Bowen v. Georgetown Univ. Hosp., 488 U.s. 204, 208 (1988); see also
5 U.S.C. § 551(4)(rules have future effect).
BOP drug treatment
program regulations and the associated program rules are considered
to be prospective in nature.
See Mora-Meraz, 601 F.3d at 936 n.4
(citing Bowen, 202 F.3d at 1220-21 and Cort, 113 F.3d at 1085).
In evaluating whether a regulation has a retroactive effect,
"[a] court must ask whether the new provision attaches new legal
consequences to events completed before its enactment."
v. USI Film Products, 511 U.S. 244, 269-70 (1994).
13 - OPINION AND ORDER
Landgraf
In the context
of RDAP-related early release, the court must ask whether an inmate
has a settled expectation of receiving the discretionary benefit.
It is well established that there is no constitutional or
inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence.
Greenholtz v. Inmates
of Neb. Penal and Correctional Complex, 442 U.S. 1, 7 (1979).
It
is also well established that inmates do not have a protected
liberty interest in the RDAP-associated discretionary early release
benefit.
See Lopez, 531 U.S. at 241; Moody v. Daggett, 429 U.S.
78, 88 n.9 (1976); Jacks, 114 F.3d at 986 n.4; Downey v. Crabtree,
100 F.3d 662, 670 (9th Cir. 1996) (statutory language of § 3621(e)
"reflects unequivocal congressional intent to leave to the Bureau
final decisions regarding whether to grant eligible inmates a
sentence
reduction.
.
.
.
supports this conclusion.")
Relevant
legislative
history
also
In the Ninth Circuit, a settled
expectation and "right to consideration" for early release have
been recognized for a narrow class of inmates: those who received
official notification from the BOP that they were eligible to be
considered for the early release incentive prior to the effective
date of amended regulations that disqualified them. Bowen v. Hood,
202 F.3d 1211, 1221 (9th Cir. 2000), cert. denied sub nom, Davis v.
Hood, 531 U.S. 111 (2001); Cort v. Crabtree, 113 F.3d 1081, 1085
(1997).
A settled expectation has not been recognized in the
absence of a formal notification of eligibility, from the BOP,
14 - OPINION AND ORDER
prior to the effective date of a regulation, even for inmates
actively participating in RDAP.
See Bowen, 202 F.3d at 1222;
Furguiel v. Benov, 155 F.3d 1046 (9th Cir. 1998); c.f. Serrato v.
Clark, 486 F.3d 560, 571 (9th Cir. 2007)(termination of boot-camp
program not an impermissibly retroactive action since inmate had
not received official notification of eligibility).
B.
Analysis
The
governing
statute
requires
the
BOP
to
provide
drug
treatment, subject to appropriations, to all eligible inmates; and
sentencing courts may make recommendations for treatment programs.
However, determining which inmates are eligible for treatment
programs, including RDAP, is left to the discretion of the BOP.
18
U.S.C. §§ 3621(e)(1)(C) and (e)(5)(B); Tapia, 131 S.Ct. at 2390-91
(it is the BOP that decides inmate participation in treatment
programs);
Downey,
100
F.3d
at
670
(citing
18
U.S.C.
§ 3621(b)(1988) and Second, Sixth, and Seventh Circuit law).
Formal
notification
of
RDAP
eligibility,
and
any
settled
expectation arising from that notification, requires action by the
BOP.
The same is true for early release eligibility.
Subject to
the statutory limitation in § 3621(e)(2)(B) -- that only nonviolent offenders may be considered for eligibility -- the BOP is
vested with the authority to determine which inmates are eligible
for the discretionary early release incentive upon their successful
15 - OPINION AND ORDER
completion of RDAP.10
And the BOP has the authority to impose
further restrictions on early release eligibility and disqualify
some non-violent offenders.
not
restrict
BOP
from
Lopez, 531 U.S. at 244 (statute does
imposing
further
restrictions
eligibility); Jacks, 114 F.3d at 984-86 (same).
on
It follows that
formal notification of early release eligibility, and any settled
expectation arising from that notification, is the result of BOP
action and not the sentencing court's recommendations.
The record shows Petitioner was formally designated to a BOP
facility on June 4, 2009.
(#9, at 3; Attach. 3.)
Petitioner was
interviewed for and put on the RDAP waitlist on February 23, 2010.
(#9, at 3.) Petitioner's § 3621(e) offense review was completed on
March 19, 2010. Thus, his formal RDAP eligibility notification and
10
Although the Ninth Circuit invalidated the 2000 regulation
denying early release eligibility to a category of non-violent
offenders in Arrington v. Daniels, the court did so on procedural
grounds, not because the BOP lacked the authority to deny
eligibility. 516 F.3d at 1113 (BOP failed to articulate a
rationale for its exclusion). Under Arrington, inmates who are
housed in the Ninth Circuit and who were notified of their
eligibility to participate in RDAP prior to the March 16, 2009,
effective date of the current regulations, or those who had
completed RDAP while housed in the Ninth Circuit prior to March
16, 2009, have to be evaluated for the early release incentive
without regard to whether the conviction offense involved the use
or possession of a firearm, or sentencing included a firearm
offense enhancement.
In Gunderson v. Hood, the Ninth Circuit upheld the BOP
program statement that -- as an exercise of the BOP director's
discretion -- disqualified inmates whose current felony offense
involved the possession of ammunition. 268 F.3d at 1152-55
(upholding Program Statement P5162.04 as an interpretive rule).
16 - OPINION AND ORDER
early release eligibility notification occurred after the March 16,
2009, effective date of the 2009 regulations.11
Petitioner
contends
he
relied
on
the
sentencing
court's
assurances of an opportunity to participate in RDAP and to receive
a sentence reduction.
(#1, at 4-5.)
He argues that his arrest,
plea and sentencing dates should govern which regulations apply.
However, it is neither inconsistent with the statute, nor an abuse
of the agency's discretion for the BOP to identify the applicable
regulations and associated program statements based on the date an
inmate is determined to be eligible for RDAP. C.f. Mora-Meraz, 601
F.3d 933 (2008 RDAP regulations and policies applied to inmate
convicted in 2002).
Moreover, applying the analysis used by the
Ninth Circuit in Cort and subsequent retroactivity challenges to
BOP
action
under
newly
promulgated
program
rules,
the
Court
concludes there could be no settled expectation relating to RDAP,
or
the
related
early
release
incentive
until
Petitioner
was
formally notified he was eligible for RDAP in February 2010.
Accordingly, the BOP did not violate the retroactivity doctrine
when it applied the March 16, 2009, regulations in determining
Petitioner's ineligibility for the early release incentive, and
habeas relief is not warranted.
11
In Ruby v. Thomas, 2011 WL 1549205, this Court upheld the
BOP's policy of conducting RDAP eligibility interviews
"ordinarily no less than 24 months from release."
17 - OPINION AND ORDER
CONCLUSION
Based on the foregoing, Petitioner's Petition for Writ of
Habeas Corpus (#1) is DENIED.
IT IS SO ORDERED.
DATED this
22nd
day of May, 2012.
/s/ Michael W. Mosman
Michael W. Mosman
United States District Judge
18 - OPINION AND ORDER
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