Mack v. Wilson

Filing 14

MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 3/4/15. (gwalk, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Haywood Mack,
Petitioner,
I:14cv259 (AJT/JFA)

V.

Eric D. Wilson,

Respondent.
MEMORANDUM OPINION

Haywood Mack, a federal inmatehousedin the Eastern Districtof Virginia and
proceedingpro

has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241,

challenging the Bureau of Prisons' ("BOP's") decision not to granthim earlyrelease upon
successful completion of the Residential Drug Abuse Program ("RDAP"). On June 30,2014,

respondent filed a Motion to Dismiss, or inthe Alternative, a Motion for Summary Judgment.'
Petitioner was given the opportunityto file responsive materials, pursuant to Roseboro v.

Garrison. 528 F.2d 309 (4th Cir. 1975), and he filed a response on July 16,2014. Respondent
then filed a reply to petitioner's response on July 23, 2014. For the reasonsthat follow.
Respondent's Motion must be granted and petitioner's claims must be dismissed.
I. Background

Petitioner is currently servinga 57-month sentence, enteredon June 10,2013 in the

District ofVermont, for conspiracy to distribute cocaine base. S^ Memorandum in Support of
Respondent's Motion to Dismiss or, intheAlternative, Motion for Summary Judgment ("Resp.'s
Mem.") [Dkt. 9], Ex. 1 (Baker Decl.) H5; Att. 1. Petitioner is currently held at FCC Petersburg,
Because respondent's Motion contained supporting exhibits, which the Court considered,
this Motion will be construed as one for Summary Judgment, pursuant to Federal Rule of Civil
Procedure 12(d).

and is projected to be released from confinement on August 10,2016, through the accrual of

good-time credit.

Resp.'s Mem., Ex. 1H5. OnJuly 15,2013, petitioner was approved to

participate in RDAP. Id. f 6. RDAP is a residential drug treatment program thatthe BOP
created to exercise its congressionally-mandated duty to provide residential drug treatment for
offenders with drug addiction.

18 U.S.C. § 3621(e)(1) ("[T]he Bureau of Prisons shall,

subjectto the availability of appropriations, provide residential substance abuse treatment [to
specified offenders]

"). To qualify for admission, an inmate must "have a verifiable

substance abuse disorder," must sign an agreement acknowledging his responsibility to complete
the program, andmustbe ableto complete all aspects of the program. 28 C.F.R. § 550.53(b).
After petitioner was found qualified for RDAP, BOP legal staff conducted an "offense

review" to determine whether he would qualify for early release upon successful completion of
the program. ^

Resp.'s Mem., Ex. 11?;^ also id. Att. 5, at 1,6. Pursuant to 28 C.F.R. §

550.55, inmates who were sentenced for a "nonviolent offense" are entitled to early release upon
successful completion of RDAP. See 28 C.F.R. § 550.55(a)(l)(i)-(ii). Inmates witha current
felony conviction for crimesinvolving the use of force, the use of a firearm, serious harmto

another, or sexual abuse of minors are ineligible for early release. Id § 550.55(b)(5). Also

ineligible for early release are inmates with a "prior felony or misdemeanor conviction for... (i)

homicide ...; (ii) forcible rape; (iii) robbery; (iv) aggravated assauh; (v) arson; (vi) kidnaping; or
(vii) an offense that by its nature orconduct involves sexual abuse offenses committed upon
minors." Id § 550.55(b)(4). Under the regulations, the age ofthe past offense is irrelevant to
the early-release eligibility calculation.

Resp.'s Mem., Ex. 1 ^ 13.

After a review of petitioner's Judgment and Commitment Order, presentence

investigation report, and other sentencing information, BOP legal staff concluded that petitioner

was not eligible for early release upon completion of RDAP.

id. H9. BOP legal staff came

to this conclusion upon learning that petitioner pled guilty to robbery in the first degree in 1991
in a New York state court.

id. BOP legal staff concluded that the elements of robbery in the

first degree under New York law were sufficiently similar to the elements of robbery defined in

the Federal Bureau of Investigation's Uniform Crime Reporting Program, which the BOP uses as
a uniform definition of robbery governing all early release decisions.

id. tH 14-15.

Accordingly, petitioner was found ineligible for early release, pursuant to 28 C.F.R.
§ 550.55(b)(4).

Petitioner appealed his denial of early release to the Warden. He then filed appeals to the

BOP's regional office and the BOP's central office.

Resp.'s Mem., Ex. 2 (Coll DecL), Att.

2, at unnumbered pages 1-6. Accordingly, it is uncontested that petitioner exhausted all of his
claims and that this matter is ripe for review on the merits. In the instant petition, petitioner

claimsthat the BOP's decisionto not grant him early release violates his constitutional rights.
He also claims that 28 C.F.R. § 550.55(b), as implemented, violates the Administrative
Procedure Act ("APA").
11. Standard of Review

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, andadmissions on file, together withthe affidavits, if any, show thatthere is no
genuine issue as to any material fact and that the movingparty is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56. Themoving partybears the burden of proving thatjudgment as a
matter of law is appropriate. See Celotex Corp. v. Catrett. 477 U.S. 317,323 (1986). To meet
that burden, the moving party must demonstrate that no genuine issues of material fact are
present for resolution. Id at 322. Once a moving party has met its burden to show that it is

entitled to judgment as a matter of law, the burden shifts to the nonmoving party to point out the
specific facts that create disputed factual issues. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,

248 (1986). In evaluating a motion for summary judgment, a district court should consider the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences

from those facts in favor of that party. United States v. Diebold. Inc.. 369 U.S. 654, 655 (1962).
Those facts which the moving party bears the burden of proving are facts which are

material. "[T]he substantive law will identify which facts are material. Only disputes over facts
which might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson. 477 U.S. at 248;

also Hooven-Lewis v. Caldera.

249 F.3d 259,265 (4th Cir. 2001). An issue of material fact is genuine when, "the evidence ...
create[s] [a] fair doubt; wholly speculative assertions will not suffice." Ross v. Commc'ns
Satellite Corp.. 759 F.2d 355,364 (4th Cir. 1985\ abrogated on other groimds bv Price

Waterhouse v. Hopkins. 490 U.S. 228 (1989). Thus, summary judgment is appropriate only
where no material facts are genuinely disputed and the evidence as a whole could not lead a
rational fact finder to rule for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp.. 475 U.S. 574, 587 (1986).
III. Analysis
A. BOP's Decision did not Violate Petitioner's Constitutional Rights

Petitioneralleges that the BOP's decision to deny him early release violated his
constitutional rights. Specifically, he asserts that the decision violated his Fifth Amendment

right against Double Jeopardy, his Due Process rights, his Equal Protection rights, and his Eighth
Amendment right to be free of cruel and unusual punishment.

However, the decision to denypetitioner early release does not violate any of petitioner's

constitutional rights. First, petitioner states thatthedecision to deny himearly release "violated
[his] rightto be [free] from Double Jeopardy since [he] is beingpunished twice for the same

offense." Memorandum of Lawin Support of Writ of Habeas Corpus ("Pet.'s Mem.") [Dtk. 12], at 4. However, the Double Jeopardy Clause protects onlyagainst a second prosecution for
the same offense aftereithera conviction or acquittal and multiple punishments for the same
offense. See United Statesv. Haloen 490 U.S. 435,400 (1989), abrogated on other grounds bv

Hudson V. United States. 522U.S. 93 (1997). Although petitioner seems to imply thatthe useof

hispast conviction for robbery to disqualify him for early release constitutes multiple
punishments forhis pastconviction, s^ Pet.'s Mem., at 3-4, petitioner has not been subject to
any additional punishment for this offense. This past offensemerelyprecludes him from the
benefit of being released early from his current sentence.

Second,petitioneralleges that the denial of his early release violates his Due Process

rights. The protections of the Due Process Clause, however, only attach to vested liberty
interests. SeeBd. of Regents of State Colls, v. Roth. 408 U.S. 564, 569(1972) ("The

requirements of procedural dueprocess apply only to the deprivation of interests encompassed
by the Fourteenth Amendment's protection of liberty and property."). Petitioner has no
constitutionally-protected liberty interest in early release from his federal sentence. See

Greenholtz v. Inmates ofNeb. Penal & Corr. Complex. 442 U.S. 1, 7 (1979). Accordingly, BOP
did notdeny him any Due Process protections byits refusal to grant his early release.
Third, petitioner states that his Equal Protection rights were violated because, "prior to
1997, the BOP was allowing inmates with prior offenses to receive the time off [due to a

previous policy]." Petitioner's Response to Government's Motion for Summary Judgment

("Pet.'s Resp.") [Dkt. 10], at 3. He seems to state that, because he was convicted of robbery in
1991, he should be treated the same as other offenders convicted of robbery in 1991. To state an

Equal Protection violation, however, petitioner must show that he "has been treated differently
from others with whom he is similarly situated and that the unequal treatment was the result of
intentional or purposeful deliberation." Morrison v. Garraghtv. 239 F.3d 648, 654 (4th Cir.
2001). Petitioner is currently "similarly situated" to other inmates in federal custody who have
completed the RDAP program and have a past conviction of robbery. There is no indication that

he has been treated any differently than these individuals. Thus, his Equal Protection claim has
no merit.

Last, petitioner states that the denial of his early release constitutes cruel and unusual
punishment. To establish a claim for cruel and unusual punishment due to conditions of

confinement, however, petitioner must allege facts sufficient to show (1) an objectively serious

deprivation of a basic human need causing serious physical or emotional injury, and (2) that
prison officials were deliberately indifferent to that need. Farmer v. Brennan. 511 U.S. 825, 834

(1994); Wilson v. Seiter. 501 U.S. 294,198 (1991). Petitionerhas not provided any facts
supporting his allegations of cruel and unusual punishment. Accordingly, his Eighth
Amendment claim must be dismissed.

B. BOP's Policv does not Violate the Administrative Procedure Act

Petitioner also alleges that 28 C.F.R. § 550.55(b)(4), disqualifying him from earlyrelease

due to his priorconviction, violates the APA. He specifically states thatthe categorical
exclusion of inmates withhis priorconviction from early release is an arbitrary and capricious

interpretation of 18 U.S.C. § 3621(e). Petitioner argues that, under an individualized analysis, he
would not be excluded from early release, due to the age and nonviolent nature of his conviction.

Petitioner's arguments haveno merit. Determining whether an agency has validly

interpreted its own statute under the APA is governed by the familiar two-step process laid out in
Chevron. U.S.A. v. Natural Res. Def Council. 467 U.S. 837 (1984). "First, always, is the
question whetherCongress has directly spoken to the precise question at issue. If the intent of

Congress is clear, that is the end of the matter;... [but] if the statute is silent or ambiguous with
respect to the specificissue, the question for the court is whether the agency's answer is based on

a permissible interpretation of the statute." Id at 842-43. Reviewunder the APA is deferential,
see Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co.. 463 U.S. 29,43 (1983), and
agency action only be overturned if the agency action is, as relevant here, "arbitrary or
capricious, an abuse of discretion, or otherwise not in accordance with law;" in excess of the

agency's legal authority; or in violation of required procedure." 5 U.S.C. § 706(2)(A)-(D).
Here, although Congress clearly intended, in § 3621(e), for the BOPto implement
substance abuse treatment programs, the statute is silentas to the "specific issue" of which
individual inmates may be entitled to early release. Section 3621(e)(2)(B) statesthat the BOP
"may" reduce the term of imprisonment of any individual convicted of a "nonviolent offense."

The law does not, however, specifically define the term. This lackof a specific definition thus
gives the BOP discretion to define the term, s^ Chevron. 467 U.S. at 843-44, and the BOP has

done so several times smce 1995, in the provisions of 28 C.F.R. §§ 550.50-.55. The specific
history of these definitions is not relevant to this litigation. However, the BOP's discretion to

determine which inmates qualify for early release is broad. ^

Lopez v. Davis. 531 U.S. 230,

239-40 (2001).

This discretion extends, contrary to petitioner's representation, to the categorical
exclusion of specific classes of inmates. In Lopez, the U.S. Supreme Court held that the BOP, in

implementing the provisions of 28 C.F.R. § 550.55, had the power to make both individualized

and categorical decisions. Lopez. 531 U.S. at 243-44 (quoting Am. Hosp. Ass'n. v. NLRB. 499
U.S. 606, 612 (1991)) ("'[E]ven if a statutory scheme requires individualized determinations,'

which this scheme does not, 'the decisionmaker has the authority to rely on rulemaking to

resolve certain issues of general applicability unless Congress clearly expresses an intent to
withhold that authority.'"). The Ninth Circuit applied this same logic to the specific provision

here, 28 C.F.R. § 550.555(b)(4), finding that BOP had the authority to categorically exclude
inmates with certain types of past convictions, including robbery, fi-om early release.

Peck

V. Thomas. 697 F.3d 767, 773-74 (9th Cir. 2012).

The Ninth Circuit also found that the BOP's decision to categorically exclude certain

classes of inmates was supported by the administrative record. This Court agrees. In 2004, the

BOP expanded the list of disqualifying past convictions to include homicide, forcible rape,
robbery, aggravated assault, arson, and kidnapping. The BOP stated that:
In exercising the Director's statutory discretion, we considered [these crimes], as
identified in the Uniform Crime Reporting Program (UCR), which is a collective
effort of city, county, state, tribal, and federal law enforcement agencies to present
a nationwide view on crime. [These crimes] are identified in the UCR due to their
inherently violent nature and particular danger to the public.

The Direct of the Bureau exercises discretion to deny early release eligibility to
inmates who have a prior felony or misdemeanor conviction for these offenses
because commission of such offenses rationally reflects the view that such
inmates displayed readiness to endanger the public.

Drug Abuse Treatment Program: Subpart Revision and Clarification, 74 Fed. Reg. 1892,1894
(Jan. 14, 2009). The BOP's justification for its decision was rational and based on a reasonable

exercise of the agency's discretion. Accordingly, this Court will not substitute its judgment for
that of the agency. Motor Vehicle Mfrs. Ass'n.. 463 U.S. at 29.

The BOP's decision to categorically exclude a certain class of inmates from early release
therefore does not violate the APA, and it was not required to make an individualized
determination of petitioner's status.
IV. Conclusion

For the above stated reasons, respondent's Motion for Summary Judgment will be
granted. An appropriate Judgment and Order shall issue.

Entered this

Alexandria, Virginia

day of

2015.

Anthony J. Trenga

,

United States Distrif (judge