Clark v. Berkebile
Filing
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FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Petitioner's application for writ of habeas corpus should be denied. Magistrate Judge Jeff Kaplan no longer assigned to case. (Ordered by Magistrate Judge Jeff Kaplan on 12/12/2008) (mfw)
IN THE LTNITED STATES DISTRICT COURT NORTHERN DISTRICT TEXAS OF D A L L A SDIVISION
GREGORYBERNARD CLARK
Petitioner-
VS. D A V I D BERKEBILE.Warden. FCI-Seagoville
Respondent.
$ $ $ $ $ $ $ $ $
$
NO.3-08-CV-1718-M
F I N D I N G S AND RECOMMENDATION OF THE U N I T E D STATES MAGISTRATE JUDGE T h i s is one of severalhabeas cases filed by prisonersat the FederalCorrectionalInstitution i n Seagoville, Texas, challenging a rule promulgatedby the Bureau of Prisons ("BOP") that from eligibility for earlyrelease categorically excludes inmates who areservingsentences certain for felony offenses,notwithstandingthe successfulcompletion of a substance abusetreatmentprogram. Under federal law: T h e period a prisonerconvictedof a nonviolent offense remainsin custody after successfullycompleting a treatment program may be r e d u c e dby the Bureau of Prisons,but such reduction may not be more than one year from the term the prisoner must otherwise serve. 1 8 U.S.C. $ 3621(eX2)(B). However,the BOP rule excludesfrom eligibility for early release: Inmates whose current offense is a felonv: (A) That has as an element, the actual, attempted,or threatened u s e ofphysical force againstthe personor propertyofanother, or (B) That involved the carrying, possession, use of a firearm or or o t h e r dangerousweapon or explosives (including any explosive m a t e r i a l or explosivedevice),or -l-
(C) That by its natureor conduct,presents seriouspotentialrisk a o f p h y s i c a l force againstthe personor propertyofanother, or (D) That by its nature or conduct involves sexual abuseoffenses committed upon children. 2 8 C.F.R. $ 550.58(a)(1)(vi). In this action, petitioner, who received a two-level sentence enhancementfor carrying or possessinga weapon during a drug trafficking crime, contendsthat s e c t i o n 550.58 is "arbitrary and capricious" and otherwise violates the requirementsof the Administrative Procedures ("APA"), 5 U.S.C.$ 706(2XA).' Act T h a t was the holdingof the Ninth Circuit inArringtonv. Daniels,516 F.3d I106 (9th Cir. 2 0 0 8 ) . In Arrington, 18 federal prisoners serving sentences for offenses involving firearms, e x p l o s i v e s , otherdangerous or weapons challenged section550.58on the groundthat the BOP failed t o provide a rationalefor the categorical exclusionof inmateswho are otherwisestatutorilyeligible f o r early release. While recognizingthat the BOP has discretionto categoricallyexclude certain the classes inmatesfrom early release, court notedthan an agencymust articulatea rationalewhen of e x e r c i s i n gthat discretion. Arrington,516 F.3d at 1I 14. The court went on to hold that neither of the two rationales stated by the BOP--that offenders with firearms convictions might pose an increased risk to the public and that there is a needfor uniformity in the applicationof eligibility regulations--withstood eventhe "narrow and deferential standard review underthe APA." Id. at of lll3-14. According to the court,therewas absolutely evidencein the administrative no recordthat
p r i s o n e r sconvictedof firearmsoffenses posea greater threatto public safetythanprisonersserving s e n t e n c e s other offenses.Id. at 1114. As to the secondrationale.the court wrote: for
The court questions whetherpetitionerhasexhausted administrative his remedies presenting claim to BOP by his a u t h o r i t i e s requiredby 28 C.F.R. $ 542.10,et seq. However,because exhaustion as requirement notjurisdictional is the a n d petitioner is not entitledto habeas relief in any event,the court will considerhis claims on the merits.
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A generaldesire for uniformity provides no explanation for why the B u r e a u exercisedits discretionto achieveconsistency through the promulgation of a categorical exclusion rule. The Bureau's stated desirefor uniformity could havebeenaccomplishedin any number of w a y s . For example,the Bureaucould have achieveduniformity by categorically including prisoners with nonviolent convictions i n v o l v i n g firearms, thus making them eligible for early release:a result that would have been entirely consistentwith the statute'saim o f offering incentives for prisoner participation in residential substance abuseprograms.Instead, chose achieveuniformity by it to c a t e g o r i c a l l yexcluding such prisonersfrom eligibility. Although e i t h e rchoicein all likelihood would havewithstoodjudicial scrutiny, the Bureau offered no explanation for why it exercisedits discretion to selectone rather than the other. The agency'slack of explanation for its choice rendersits decision arbitrary and capricious. I d . (emphasis original). in T o date, no court outside the Ninth Circuit has followed Aruington. Most courts have
r e j e c t eArrington contrary Lopezv. d as to Davis,53lU.S.230,121 S.Ct.714, l48L.Ed.zd635 (2001),whereintheSupremeCourtupheldanearlyidenticalversionofsection550.5S. SeeMinotti v . Whitehead, _F.Supp.2d_,2008 WL4791462(D. Md. Oct.31,2008); Nealv.Grondolslcy,
(D.N.J. No. Sept. 2008); 9, Gatewood Outlaw, 2-08-CVv. N o . 08-2477 NLH, 2008WL 4186901 (E.D.Ark. May 8, 2008). The Minotti courtwent further, 0 0 5 4WRW/BD, 2008WL 2002650 was,in fact,intended promote to uniformity thatsection 550.58 criticizing Arringtonon thebasis i n theapplication eligibilityregulations: of
Closer examination of Arrington revealsthe fatal flaw in the Ninth C i r c u i t ' s reasoning. The BOP provided an explanationfor why it exercisedits discretionto categoricallyexcluderatherthan include an entire classof inmates: it was concernedaboutuniformity. However, that was not an explanation that the Ninth Circuit was willing to its a c c e p tand,assuch,theNinth Circuit substituted judgment for that o f the agency. The legislativehistory behind $ 3621 explicitly notes that "[s]ubstanceabusetreatmentfor prison inmatesis apowerful tool f o r reducingrecidivism,easingprison overcrowding,and ultimately
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preventingcrime." In amending$ 3621(eX2)(B),the HouseReport noted that the amendment"authorizesthe [BOP] to shortenby up to o n eyearthe prisonterm of a prisonerwho hassuccessfully completed atreatmentprogram,basedon criteriato be established and uniformly a p p l i e d by the [BOP]." Moreover, the SupremeCourt explicitly agreedwith and deferredto the BOP's "reasonabl[e]conclu[sion] that an inmate'sprior involvement with firearms, in connection with the commission of a felony, suggestshis readinessto resort to lifeendangering violenceandthereforeappropriatelydeterminesthe early r e l e a s e decision." Taken in context, the BOP's concem about uniformity in application is not arbitrary or capriciousbut ratheris the c o n s e q u e n c e its fidelity to Congress's of mandate. The connection between firearms, drug offenses,and violence is fully supportedby t h e language the statute, of Lopez,andjust plain common sense. M i n o t t i , 2 0 0 8 WL 4791462 * 10 (internalcitationsomitted)(emphasis original). Minotti, Neal, at in and Gatewood were cited with approval by this court in rejecting a nearly identical challenge to section550.5SbroughtbyanotherprisoneratFCI-Seagoville. SeeCrossv.Berkebile,No.3-08-CV1 3 7 9 - M (N.D. Tex. Dec. 10, 2008) (Kaplan,J.). For the reasons statedin Cross,the court should d e c l i n e to follow Arrington and deny habeas relief.2
RECOMMENDATION
Petitioner's corpusshouldbe denied. applicationfor writ of habeas A copy of this report and recommendation shall be servedon all parties in the manner p r o v i d e dby law. Anyparty may file written objections the recommendation to within 10 daysafter
b e i n gserved with a copy. See28 U.S.C.$ 636(bxl); Fen.R. Ctv. P.72(b). The failureto file
written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistratejudge that are acceptedor adoptedby the district court, except upon
2 To the extent petitionerattemptsto statean equal protectionclaim becauseprisoners in the Ninth Circuit are t r e a t e ddifferently from prisonersin other circuitswith respect the applicationof 28 C.F.R. $ 550.58,sucha claim is to w i t h o u t m e r i t .SeeHernandezv.Gilkey,242F.Supp.2d549,554(S.D.lll.200l)(prisoner'sequalprotectionrightswere n o t violated merely because similarly situatedprisonersin other circuits were treateddifferently as a result of circuit split).
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grounds plain enor. See of Douglass United v. Services Automobile Ass'n,79 F.3d 1415, l4l7 (5th C i r . 1996). D A T E D : December 12.2008.
S T A T E SMAGISTRATE JIJDGE
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