Vause v. Feather
Filing
15
OPINION & ORDER: The Petition for Writ of Habeas Corpus 1 is denied. See 7-page opinion & order attached. Signed on 11/14/2013 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOSHUA AARON VAUSE,
Case No. 3:13-cv-01040-HZ
Petitioner,
v.
MARION FEATHER,
OPINION AND ORDER
Respondent.
Alison M. Clark, Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
S. Amanda Marshall
United States Attorney
Natalie K. Wight, Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - OPINION AND ORDER
HERNANDEZ, District Judge.
Petitioner
U.S. C.
§
brings
this
habeas
corpus
case
pursuant
22 41 challenging the Bureau of Prisons'
to
28
decisions to:
(1) establish a release date of October 16, 2013; and (2) require
petitioner to serve his full 180 day community confinement portion
of the Residential Drug Abuse Program ("RDAP") following an eightmonth interruption.
For the reasons that follow, the Petition for
Writ of Habeas Corpus
(#1) is denied.
BACKGROUND
Petitioner
lS
currently serving a
4 6-month sentence for
a
conviction in the Eastern District of Washington for importation
and possession with the intent to distribute ecstasy in violation
of 21 U.S.C.
of Prisons
§§
841, 952, and 960.
("BOP")
While incarcerated, the Bureau
accepted petitioner into the RDAP program and
deemed him eligible for early release consideration.
After completing the residential component of RDAP on March
23,
2012,
Center
the
( "RRC")
component
of
Transitional
BOP placed petitioner
in
his
Spokane
RDAP
Drug Abuse
to
begin
program,
Treatment
in
the
a
Residential
community
sometimes
( "TDAT") .
petitioner to participate in TDAT for 180 days.
corrections
referred
The
Re-entry
BOP
to
as
required
On June 7, 2012,
the BOP allowed petitioner to move from the Spokane RRC to home
confinement with his father.
At that time, petitioner's projected
release date was October 20, 2012.
2 - OPINION AND ORDER
After
completing
68
days
of
his
TDAT,
on
June
30,
2012,
petitioner was arrested based on probable cause for a residential
burglary
at
his
ex-girlfriend's
home.
apprehended leaving the area in question,
When
petitioner
was
he informed the police
that he had an argument with his girlfriend over her new boyfriend
whom
she
had
Petition
started
Exhibit
A,
seeing
p.
3.
while
petitioner
Petitioner
was
claimed
in
that
prison.
"nothing
happened" and that he was simply retrieving his tools to use at his
flooring job.
Id.
Petitioner was held in the county jail on a 72-
hour investigative hold before being released to federal custody.
No criminal charges were ever filed over this incident.
The director of petitioner's RRC filed an incident report on
July
2,
2013
Community
charging
Program,
petitioner
with
and petitioner was
pending the investigation.
Escape
From
returned to
Unescorted
FCI -Sheridan
On November 27, 2012, the Disciplinary
Hearings Officer ("DHO") assigned to his case found that petitioner
had committed the charged offense because he was not available for
supervision by the RRC staff for a period greater than four hours.
Id at 4.
As a result, petitioner was ordered back to prison and
required to forfeit 41 days of his good-conduct time.
Petitioner
took
an
administrative
appeal
Regional Office to expunge the Incident Report.
Id.
asking
the
BOP
The BOP Regional
Office, without specific explanation, expunged the Incident Report
on
May
8,
2013.
Petition
3 - OPINION AND ORDER
Exhibit
C.
As
a
result,
the
BOP
reinstated his 41 days of good-conduct time and again placed him in
a RRC.
Despite the expungement, and despite returning him to RRC
placement on June 27, 2013, the BOP determined that petitioner was
ineligible for the one-year sentence reduction under RDAP and set
petitioner's release date at October 16,
2013, approximately one
year later than his earlier projected release date of October 20,
2012.
The
BOP
also
rejected
petitioner's
request
to
adjust
downward the amount of time he was required to participate in TDAT
from 180 days to 120 days.
Petitioner alleges that the failure to restore his October
2012 release date violates his right to due process of law,
and
that the BOP's reimposition of a 180-day term in TDAT was both
arbitrary and unwarranted.
1
DISCUSSION
I.
Restoration of October 2012 Release Date
Petitioner
asks
this
court
to
restore
his
2 012
projected
release date which had been established for him prior to his arrest
while
on
revisit
U.S.C.
home
confinement.
This
court
lacks
jurisdiction
such individualized determinations made pursuant
§
122 7-2 8
3621. See 18 U.S.C.
(9th
Cir.
2 011)
§
to
to
18
3625; Reeb v. Thomas, 636 F.3d 1224,
("federal
courts
lack
jurisdiction to
Petitioner also appears to raise procedural due process
challenges with respect to his disciplinary hearing.
Because his
disciplinary conviction was subsequently expunged, such
challenges are moot.
4 - OPINION AND ORDER
review the BOP's individualized RDAP determinations made pursuant
to 18 U.S.C.
§
3621").
Although petitioner also contends that the
BOP's decision to change his projected release date constitutes a
due process violation because he had a liberty interest in early
release by virtue of his enrollment in RDAP,
there is no such
liberty interest in early release irrespective of his enrollment
status in RDAP.
Peck v. Thomas, 697 F.3d 767, 774 (9th Cir. 2012);
Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1,
7 (1979).
While
petitioner
is
correct
that
he
has
a
right
to
consideration for early release, Cort v. Crabtree, 113 F.3d 1081,
1085
(9th
Cir.
1997),
he
is
still
subject
to
early
release
consideration if he successfully completes the RDAP program.
the
time
he
filed
his
Petition
for
Writ
of
Habeas
At
Corpus,
petitioner had not yet completed the community portion of RDAP and
the
court
is
not
in
position
to
make
an
individualized
determination that petitioner presumably would have successfully
completed
the
entire
RDAP
program
had
he
not
been
arrested.
Although petitioner also asks the court to afford him relief in
equity, it declines to do so where petitioner has no statutory or
constitutional right to the relief he seeks.
II.
180-Day TDAT Term
Petitioner next claims that because the relevant BOP policy
provides that TDAT can be completed within 120 days, the court may
5 - OPINION AND ORDER
find that the 180-day TDAT term imposed upon petitioner departs
from BOP policy and is arbitrary and unwarranted.
He claims that
the BOP should have permitted him to complete the TDAT portion of
RDAP as quickly as possible given that his arrest,
disciplinary
hearing, and subsequent expungement of his disciplinary conviction
took eight months.
BOP Policy Statement 5330.11 provides:
Bureau experience and drug abuse treatment research
demonstrate that successful community treatment cannot be
completed in less than 120 days. Therefore, inmates who
are approved for less than a 120-day RRC placement or
home confinement cannot ordinarily complete the final
component of RDAP, and are, therefore, ineligible for
early release.
Reply Exhibit A, p. 1.
Consistent with
this
Policy Statement,
the
BOP originally
imposed a 180-day TDAT term of which petitioner served 68 days
before his arrest.
Consequently, when he was returned to the TDAT
portion of RDAP after his disciplinary conviction was expunged, he
had 112 days remaining in his term.
Although petitioner labels the
refusal to reduce this term to the minimum required by the BOP's
policy statements as arbitrary, nothing in PS 5330.11 requires the
BOP to impose the bare minimum term.
Indeed, PS 5330.11 requires
at least 120 days of TDAT before an inmate can be deemed eligible
for
early
Program
release
Statement
under
does
RDAP.
not
capricious.
6 - OPINION AND ORDER
The
render
BOP's
the
compliance
decision
with
arbitrary
its
or
Moreover,
petitioner's
argument
fails
to
take
into
consideration that RDAP is not simply a mechanism for an inmate to
secure
early
release,
substance abuse
following
his
but
issues.
arrest
is
The
would
specifically
targeted
to
treat
interruption to petitioner's
not
have
made
that
portion
of
TDAT
his
treatment more effective, thus it was entirely reasonable not to
reduce the length of that treatment program.
If anything,
the
interruption to petitioner's TDAT could have been a sound reason to
either extend the term or require petitioner to begin the 180 - day
treatment term anew.
Accordingly, petitioner's claim lacks merit.
CONCLUSION
For the reasons identified above ,
the Petition for Writ of
Habeas Corpus (# 1 ) is denied.
IT IS SO ORDERED.
DATED this
r~
day of November , 2013 .
J
7 - OPINION AND ORDER
· M~rc d A. Hernandez
United States District Judge
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?