Reed v. Wilson
Filing
12
MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 9/2/15. (gwalk, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Sederick Reed,
Petitioner,
V.
Eric D. Wilson,
Respondent.
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l;14cv652 (TSE/IDD)
MEMORANDUM OPINION
Sederick Reed, a federal inmate housed in the Eastern District of Virginia and proceeding
pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging
the refusal of the Bureau of Prisons ("BOP") to grant him early release. On November 11,2014,
respondent filed a Motion to Dismiss for Lack of Jurisdiction, a Motion to Dismiss for Failure to
State a Claim, and a Motion for Summary Judgment, along with a supporting memorandum with
exhibits. Reed was given the opportunity to file responsive materials, pursuant to Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975)and Local Rule 7(K), and he has filed no reply to any of
respondent's motions. For the reasons that follow, respondent's Motion for Summary Judgment
must be granted,and his Motions to Dismiss will be denied, as moot.
1.
The following material facts are undisputed. On September 12,2005, petitioner Reed
was convicted in a Louisiana state court ofconspiracy to commit armed robbery and sentenced to
serve fifteen (15) years in prison. Thesentence was subsequently reduced to a term of seven (7)
years. Resp. Ex. 1,K9. On May 29,2009, Reed was paroled fi-om Louisiana custody. Id.
While onparole. Reed committed the federal offense of conspiracy to distribute and possess
cocaine base, and he was sentenced by the United States District Court for the Western District
of Louisiana on February 6,2012 to a 120-month term of incarceration. Id at ^ 10, Att. 3. On
November 5,2012, the federal sentence was modified to a 60-month term, to run concurrent with
the undischarged portion of the Louisiana state sentence. Id at f 11, Att. 4.
On February 7,2013, Reed was determined to be qualified to participate in the
Residential Drug and Alcohol Program ("RDAP") at FCI Petersburg. Id at TI7. Pursuant to 28
C.F.R. § 550.5(a) and BOP Program Statements 5331.01 and 5162.05, an inmate who
participates in such a drug treatment program may be eligible for early release by a period of up
to one year if he: (1) has a diagnosis for a substance abuse disorder; and (2) was sentenced to a
term of imprisonment for a non-violent offense. Id at H6.' Once Reed wasdetermined to be
eligible for participation in the RDAP, the Drug Abuse Program Coordinator ("DAPC") at FCI
Petersburg conducted an offense review, to ascertain whether he qualified for early release. M. at
18. On February 12,2013, the DAPC determined that Reed was ineligible for the early release
incentive on the basis of his prior conviction in Louisiana for conspiracy to commit armed
robbery with the underlying offense of robbery. Id at H12, Att. 2 at 2. That determination was
reviewed and approved by the BOP's Assistant General Counsel. Id at 13. Reed successfully
completed the RDAP on January 16,2014. Id at H14.
On May 20,2014, Reed filed this application for § 2241 habeas corpus relief, arguing that
he was denied due processof law becausethe BOP "recentlychanged its policy" with respect to
'For purposes of the instant case, it is important to note that early release is foreclosed for a
violent crime, and instead is authorized only where the inmate received sentences for non-violent
offenses. Conspiracy to commit robbery withtheunderiying offense of robbery, the crime of which
Reedwasconvicted in Louisiana, isamong thecrimesforwhichearlyrelease eligibility is excluded.
See 28 C.F.R. §§ 550.5(b)(4)(iii) and (b)(6).
consideration of a defendant's prior criminal history in determining eligibility for the early
release incentive. Pet. at 2. He further contends that the change in the law did not comport with
the Administrative Procedure Act ("APA"). As relief, he seeks the issuance of an order directing
the BOP to grant him early release pursuant to § 362l(e).^ Based on the pleadings and record
before this Court, it is uncontested that Reed has exhausted available administrative remedies as
to these claims.^ Accordingly, this matter is now ripe for reviewon the merits.
II.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law,"^ Fed. R. Civ. P. 56. The moving party bears the burden of proving thatjudgment on the
pleadings is appropriate. See Celotex Corp. v. Catrett 477 U.S. 317,323 (1986) (moving party
bears the burden of persuasion on all relevant issues). 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.
^Title 18 U.S.C. § 3621 is titled "imprisonment of a convicted person." Subsection(e) of that
provision created RDAP pursuant to Congressional authority to "make available appropriate
substance abuse treatment for each prisoner the [BOP] determines has a treatable condition of
substance addiction or abuse." 18 U.S.C. § 3621(b)(5).
^In the context of federal habeas petitions challenging sentence computations, parole
determinations, or good time creditscalculations, courtshave required petitioners first to exhaust
their administrative remedies. See United States v. Wilson. 503 U.S. 329,335-36 (1992).
"Respondent has moved both for dismissal of the petition and alternatively for summary
judgment. Because the facts material todisposition ofpetitioner's claims are notsubject to genuine
dispute - indeed, they are derived firom his record - the same result would obtain whether the
challenge to the petition is evaluated under Fed. R. Civ. P. 12or Fed. R. Civ. P. 56.
the burden then shifts to the non-moving party to point out the specific facts which create
disputed factual issues. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,248 (1986); Matsushita
Electrical Industrial Co. v. Zenith Radio Corp.. 475 U.S. 574,587 (1986). In evaluating a motion
for summaryjudgment, a district court should consider the evidence in the light most favorable
to the non-moving 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 goveming law will properly preclude the entry of summary judgment." Anderson.
477 U.S. at 248. An issue of material fact is genuine when, "the evidence... create[s] [a] fair
doubt; wholly speculative assertions will not suffice." Ross v. Communications Satellite Corp..
759 F.2d 355,364 (4th Cir. 1985). 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 non-moving party. Matsushita. 475 U.S. at 587.
m.
Petitioner argues first that the BOP's adoption of 28 C.F.R. § 550.55, which was relied
upon to deny his participation in the early release program, violates the APA. He appears to
assert that the regulation is contrary to the language and intent of 18 U.S.C. § 3621(e), the statute
it was designedto implement. However, that argument is meritless, as several courts have
recognized. See Whitaker v. Stansberrv. No. 3:03cy662,2009 WL 3762320, at *5 (E.D. Va.
Nov. 9,2009); Savage v. Wilson. No. 3:I3cv578,2014 WL 1902709,at *1 (E.D. Va. May 8,
2014). In Savage, the courtdetermined that "[§ 550.55] and its explanatory statement clearly
satisfied the BOP's obligation to provide a 'rational connection between the facts found and the
choice made.' See Lopez [v. Davis]. 531 U.S. [230,] 240 [(2001)]." There can be no doubt there
is a link between the potential for violent conduct by persons convicted of conspiracy to commit
armed robbery and the risk to public safety. There is, therefore, a clear rational connection
between an inmate's ineligibility for discretionary early release and an inmate's record of the
commission of a violent offense. Thus, as the court in Savage noted, "promulgation of the rule ...
[does not] violate the APA." Savage. 2014 WL 1902709, at *5 (citing Motor Vehicle Mfrs.
Ass'n V. State Farm Mut. Auto Ins. Co.. 463 U.S. 29,43 (1983)). Put simply, there is a
thoroughly rational connection between the commission of a violent offense and ineligibility for
discretionary early release. It follows that the BOP acted well within its regulatory authority in
promulgating § 550.55, and Reed's APA argument fails.
To the extent that Reed's APA argument may be read as challenging the individual
decision made in his case to deny him eligibility for early release, there is no jurisdiction to
undertake such an inquiry. The decision to admit an inmate to RDAP or to its early release
eligibility is reserved to the sole discretion of the BOP pursuant to 18 U.S.C. § 3629(e)(2)(B),
and judicial review ofthose subsections is specifically excludedunder the APA by the express
terms of § 3625. As a result, the BOP's decision to deny Reed access to the discretionary
sentence reduction provided by the RDAP is not judicially reviewable. Savage. 2014 WL
1902709, at *3.
Petitioner's alternate position - that his exclusion from the early release incentive violated
his right to due process - fares no better. To establish a violation of the Due Process Clause, a
petitioner for habeas relief must first identify a liberty or property interest protected by the Fifth
Amendment. Am. Mfrs. Mut. Ins. Co. v. Sullivan. 526 U.S. 40,59 (1999). It is well established
at this juncture that a convicted prisoner has no constitutionally-protected liberty interest in early
discretionary release. Sandin v. Conner. 515 U.S. 472,484 (1995); Greenholtz v. Inmates of
Neb. Penal & Corr. Complex. 442 U.S. 1,7 (1979). Thus, if a statute permitting early release
places no "substantive limitations on official discretion" in granting such release, it implicates no
liberty interest. Olim v. Wakinekona. 461 U.S. 238,249 (1983). Here, the BOP is vested with
virtually unfettered discretion to reduce the sentence of a prisoner "convicted of a nonviolent
offense" by § 3621(e). Thus, regardless ofwhether Reed had a conviction of a violent offense in
his past or not, his access to the sentence reduction under RDAP still would be left to the BOP's
sole and unreviewable discretion. Accordingly, as several courts have held, denial of access to
the RDAP program and its sentence reduction opportunity is insufficient to trigger a liberty
interest subject to due process protection. Savage. 2014 WL 1902709, at *5; see also. Cook v.
Wilev. 208 F.3d 1314, 1322-23 (1Ith Cir. 2000); Veneeas v. Henman. 126 F.3d 760,765 (5th
Cir. 1997). Accordingly, because the BOPacted withinits statutory authority in denying Reed
early release. Reed suffered no violation of his right to due process when he was denied access to
the discretionary sentence reduction provision ofthe RDAP, and hiscontrary argument fails.®
'To the extent that Reed argues that the BOP "recently changed its policy" regarding access to
the RDAP and thereby violated his due process rights. Pet. at 2, he is simply mistaken. Beginning
withthe veryfirstregulations that implemented 18U.S.C. § 3621 in 1995, the BOPhasconsistently
andcategorically excluded prisoners with certain prior offenses, including robbery andconspiracy
to commit robbery, from eligibility for sentence reduction for completion of a drug program. See
28 C.F.R. § 550.58 (1995); Resp. Ex.2. Even were thatnotso, theBOP's current regulations were
promulgated in 2009, before Reed committed the federal offense for which is now incarcerated.
IV.
For theforegoing reasons, respondent's Motion for Summary Judgment will be granted,
and his Motions toDismiss will be denied, as moot. Anappropriate Order and Judgment shall
issue.
Entered this
day of.
2015.
Alexandria, Virginia
T.S. Ellis, III J
United States Ijiisfrict Judge
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