Davis v. Wilson

Filing 11

MEMORANDUM OPINION. SEE OPINION for complete details. Signed by District Judge Robert E. Payne on 12/05/2017. Copy of Memorandum Opinion mailed to Petitioner as directed.(ccol, )

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

u {L

~

Riclunond Division
JOHN GUY DAVIS, III,

~

OEC -6 20\7

\

CLERK. U.S. DlSTR1CT COURT
RICHMOND VA

Petitioner,

v.

Criminal No. 3:17CV04

ERIC WILSON,
Respondent.
MEMORANDUM OPINION
This matter is before the Court pursuant to John Guy Davis,
III' s
§

Petition for Writ of Habeas Corpus pursuant to 28 U.S. C.

2241

( "§ 2241 Petition," ECF No.

Motion to Dismiss,

has

1) . 1

Respondent has filed a

or in the alternative,

{"Motion for Summary Judgment, "

Judgment.

{ECF

responded.

No.

10.)

The

a Motion for Summary
ECF No.
matter

6) •

is

2

Davis

ripe

for

disposition.
In

his

§

2241

Petition,

Davis,

a

federal

inmate

incarcerated in Petersburg, Virginia, contends that he "is being
barred from a reduced sentence based on an invalid agency policy
[of)

the

[Davis)

Bureau

the

1

of

Prisons

'one-year-off'

Abuse Program]

( ("BOP")) .

for completing

(BOP)

denied

[the Residential Drug

that participants usually receive."

The Court employs the pagination
submissions by the CM/ECF docketing system.
2

~

assigned

{§ 2241 Pet.

to

The Court
employs
the pagination assigned
Government's submissions by the CM/ECF docketing system.

Davis's

to

the

3.)

As relief,

[BOP]

Davis requests that the Court

through FCC Petersburg is relying on

policy

which

{"APA")]

violates

[the

[an]

Administrative

- to wrongfully bar [Davis]

''rule that the
invalid agency
Procedure

Act

from the one year reduction

in sentence for which he should otherwise be eligible under 18

u.s.c.
§

§

3621."

at 7.) 3

{Id.

Respondent asserts that Davis's

2241 Petition should be dismissed because Davis lacks standing

and

because

Davis's

substantive

Residential

Drug Abuse

Supp.

Summ.

Mot.

reasons,

J.

Program

s,

7,

( "RDAP")

ECF

Respondent's Motion for

will be granted, and Davis's

§

challenge

No.

7. )

is

against

the

BOP's

meri tless.
For

the

Summary Judgment

(Mem.

following

( ECF No.

6)

2241 Petition (ECF No. 1) will be

dismissed without prejudice because at this juncture, the action
is not ripe for judicial disposition.
I.

SUMMARY JUDGMENT STANDARD

Summary judgment must be rendered "if the movant shows that
there

is

no genuine

dispute as

to any material

fact

movant is entitled to judgment as a matter of law."
Civ.

P.

56(a).

and

the

Fed.

R.

The party seeking summary judgment bears

the

responsibility to inform the court of the basis for the motion,
3

Davis has attached to his § 2241 Petition a Memorandum in
Support of his § 2241 Petition.
(See ECF No. 1, at 7-15.)
The
Clerk docketed this Memorandum together with the §
2241
Petition.
For ease of reference, the Court uses the pagination
assigned by the CM/ECF docketing system for this submission and
simply refers to it as part of the § 2241 Petition.
2

and to identify the parts of the record which demonstrate the
absence of a genuine issue of material fact.
v.

Catrett,

4 7 7 U. S .

31 7 ,

323

( 19 8 6} .

See Celotex Corp.

" [W]

here the nonmoving

party will bear the burden of proof at trial on a dispositive
issue,

a

summary

reliance

solely

judgment
on

the

motion

may

pleadings,

properly

be

in

answers

depositions,

made

to

interrogatories, and admissions on file."

Id. at 324

quotation

motion

marks

omitted} .

When

the

(internal

is

properly

supported, the nonmoving party must go beyond the pleadings and,
by

citing

affidavits

interrogatories,
facts

and

"'depositions,

or

admissions

on

file, '

designate

In
draw

reviewing

all

party."

a

justifiable

Cir.

477 U.S.

Inc.,

(4th

242,

1992}
255

judgment

inferences

United States v.

835

832,

summary

in

(1986)}.

Anderson
However,

evidence will not preclude summary judgment.

442,

251

(citing Improvement

448

judge,

(1872)}.

the
of

Carolina Transformer
(citing

Co.

v.

Munson,

Id.

(1986}).

motion,
favor

to

'specific

showing that there is a genuine issue for trial.'"

(quoting former Fed. R. Civ. P. 56 (c} and 56 (e}

at

answers

v.

court

the
Co.,

"must

nonmoving
978

Liberty

F. 2d

Lobby,

a mere scintilla of
Anderson, 477 U.S.
81 U.S.

(14

Wall.)

"' [T] here is a preliminary question for the

not whether there is literally no evidence,

but whether

there is any upon which a jury could properly proceed to find a

3

verdict

for

imposed.'"
In

the party
Id.

support

Program

Deel. , " ECF No.

the

onus of proof

is

{quoting Munson, 81 U. s. at 448) .
of

Government submits a
Abuse

upon whom

its

Motion

for

summary

Declaration of Scharles

Coordinator

at

FCI

Judgment,

the

Tinsley,

Drug

c.

Petersburg

Low

{"Tinsley

7-1) , and several records pertaining to Davis's

RDAP eligibility and participation

{Tinsley Deel.

Attach.

1-5,

ECF No. 7-2 through 7-6).
As a general rule,

a non-movant must respond to a motion

for summary judgment with affidavits or other verified evidence.
Celotex Corp., 477 U.S. at 324.

With his Reply, Davis submitted

an Affidavit {"Davis Af f. , " ECF No. 10-1) .

Davis also swore to

the contents of his Reply under penalty of perjury.
In

light

of

the

foregoing

submissions

and

(Reply 11.)

principles,

the

following facts are established for the purposes of the motion
for summary judgment.

All permissible inferences are drawn in

Davis's favor.
II.

SUMMARY OF FACTS

On June 10, 2014, Davis was sentenced by the United States
District Court for the Middle District of North Carolina to 60
months'
21

imprisonment for manufacturing marijuana in violation of

u. s . c .

at 3,

§§

ECF No.

8 41 {a) {1)

7 - 2. )

and

{b) {1) {B) .

At sentencing,

4

{Tinsley Aff. Attach.

1

the district court adopted

Davis's

Pre-Sentence

Investigation

Report

and

accepted

its

recommendation of a two-level increase in Davis's base offense
level pursuant to United States Sentencing Guideline
(Tinsley Aff.
a

firearm)

~

was

possessed"

On November 7,

Davis's

were

he

conviction

~

Center

qualified

The

of

his

offense.

(Id.

for

the

Pursuant to RDAP' s policy,

6.)

to

the

("DSCC")

BOP's

for

early

a

release

Designation

and

determination

of

upon

successful

(Id.; see Tinsley Aff. Attach. 3 at 2, ECF

completion of RDAP.
7-4.)

time

Davis was found to qualify for

submitted

Computation

whether

the

7-3.)

2014,

Sentence

No.

at

(Tinsley Af f.

records

2Dl .1,

5) , finding that "a dangerous weapon (including

Attach. 2 at 2, ECF No.

BOP' s RDAP.

§

DSCC

"involved

determined
the

that

carrying,

Davis's

possession,

current offense
or

use

of

a

firearm or other dangerous weapon or explosive[]" and "by its
nature

or

conduct

[Davis's

offense

conviction),

presents

a

serious potential risk of physical force against the person or
property or another."
5.)

(Tinsley Aff. Attach. 4 at 2, ECF No. 7-

Therefore, the DSCC concluded that Davis was ineligible for

early release even if

he were

to complete successfully RDAP.

(Tinsley Aff. Attach. 4 at 3.)
enrolled in RDAP. 4

Davis has neither completed nor

(See Tinsley Aff.

4

~

7; Tinsley Aff. Attach. 5

Davis disputes whether he declined to participate in RDAP.
In his Affidavit, Davis asserts,
5

at 3, ECF No. 7-6.)

III.

DAVIS'S STANDING TO BRING THIS

§

2241 PETITION

Essentially, Davis argues that RDAP's policy of disallowing
early release for felons
because

of

firearm

who have been convicted or sentenced

offenses

violation of the APA.

(§

is

224 l

arbitrary

Pet . 8 -15 . )

must consider his ability to bring this

§

and

capricious

However,

in

the Court

2241 Petition before

it can reach the merits of Davis's argument.
In

its

Judgment,

Memorandum

in

Support

its

Motion

the Government contends that Davis's

is non-justiciable because Davis
Mot . Summ.

of

J.

5- 7 . }

lacks

§

standing.

for

Summary

2241 Petition
(Mem.

Supp.

The Government argues that because Davis

I never signed out of RDAP or declined to participate.
Note the lack of my signature on the Respondent's
exhibit for proof that I did not refuse to participate
and still intend to participate with the hopes of
receiving the one year off should the courts rule
favorably in my § 2241 proceeding.
I only told Dr.
Woods that I would be appealing the eligibility denial
regarding the year off incentive.
(Davis Aff.
,
4
(emphasis omitted).)
A review of the
Government's attachment that Davis references, however, reveals
that although Davis's signature is indeed absent, Dr. Woods
checked the box indicating that the "inmate refuses to sign."
(Tinsley Aff. Attach. 5 at 3.}
Further, the attachment shows
that Dr. Woods commented "Inmate Davis declined RDAP as he was
not eligible for early release. As such, his status was updated
to reflect [RDAP] Decline." (Id.)
Whether or not Davis refused
to participate in the program is immaterial.
The record
conclusively establishes that Davis has neither sought to enroll
in nor completed RDAP despite his eligibility to do so.
6

has not completed RDAP he is unable to show both that he has a
redressable injury and that the action is ripe for disposition.
(Id.)
not

As discussed below,
ripe because

RDAP

and

Davis

thus,

the

the Court agrees that this action is

has

Court

neither enrolled
lacks

review the merits of Davis's

Article

in nor completed

III

jurisdiction

to

2241 Petition.

§

Article III of the Constitution limits the scope of federal
court jurisdiction to "cases" and "controversies."
art.

III,

§

2.

U.S.

Const.

"[R]ipeness, along with standing, mootness,

political question,"

are

and

"doctrines that cluster about Article

III" of the United States Constitution.

S.C. Citizens for Life,

Inc.

220-21

v.

Krawcheck,

(quoting Allen v.
is

a

doctrine

3 01

F.

Wright,

used

controversy exists,

to

App' x

218,

468 U.S.
evaluate

737,

750

whether

(4th Cir.

(1984)}.
an

2008)

Ripeness

actual

case

or

because a court cannot decide a claim that
See Ohio Forestry Ass' n

is not ripe for its review.

Sierra Club, 523 U.S. 726, 732-34

(1998).

Inc.

v.

The Supreme Court has

recognized that " [t] he burden of proving ripeness falls on the
party
F.

bringing

App' x

at

suit."

220

s.c.

(alteration

Citizens
in

for

original}

Life,
(quoting

Inc.,
Miller

301
v.

Brown, 462 F.3d 312, 319 (4th Cir. 2006}}.
To

determine

disposition,
issues

for

"a

whether

court

judicial

must

a

claim

evaluate

decision'

and

7

is
( i}

(ii}

ripe
'the
'the

for

judicial

fitness

of

the

hardship

to

the

parties

of

withholding

court

consideration.'"

Id.

at

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).

221
A

claim for relief "is not ripe for adjudication if it rests upon
contingent future events that may not occur as anticipated,
indeed may not occur at all."
296,

300

omitted);

(1998)
see

(internal

Miller,

462

or

Texas v. United States, 523 U.S.

quotation
F.3d

at

marks
319

omitted)

("A

case

(citation

is

fit

for

judicial decision when the issues are purely legal and when the
action

in

controversy

is

final

and

not

dependent

on

future

uncertainties."}.
Davis's challenge to his eligibility for RDAP is not ripe
for this court' s

review because Davis has not completed RDAP,

which is a precondition to being considered for early release
under 18 U.S.C.

§

362l(e} (2) (B}.

of RDAP is a future contingency. 5

5

Davis's successful completion
Hence, at this juncture, "the

In his Reply, Davis argues that the action is ripe for
review because he is identically situated with the habeas
petitioner in Lopez v. Davis, 531 U.S. 230 (2001).
(Reply 3-4,
ECF No. 10.)
However, Davis's argument lacks merit.
Lopez was
a case of first impression before the Supreme Court addressing
whether 18 u.s.c. § 362l{e) (2) {B} is a permissible exercise of
the BOP's discretion.
Lopez, 531 U.S. 233.
It does not appear
that any party raised the issue of ripeness in Lopez.
However,
since Lopez, district courts have found that challenges to RDAP
are not ripe for judicial disposition where an inmate has not
completed the program.
See King v. Fed. Bureau of Prisons, C.A.
No. 9:09-323-HMH-BM, 2009 WL 764948, at *5 (D.S.C. Mar. 23,
2009) {citation omitted), aff 'd, 329 F. App'x 504 {4th Cir.
2009); Holland v. Fed. Bureau of Prisons, No. 0:08-3960, 2009 WL
2872835, at *1 (D.S.C. Sept.2, 2009).

8

duration
release

of
is

(Davis's]
not

a

imprisonment

controversy,

based

and

the

on

possible

length

of

early

[Davis's]

imprisonment would be unaffected by this court's dismissal of
the petition without prejudice."
see id. at *3

(concluding, inter alia,

challenge

APA

King,

to

RDAP

"not completed RDAP and

was

not

therefore

2009 WL 764948, at *5;
that habeas petitioner's
ripe

ha(d]

because

not

been

he

had

denied

the

early release benefit"}; see Gay v. LaManna, C.A. No. 2:08-3624GRA-RSC,
332

2009 WL 790336,
App'x

F.

("Plaintiff's

22

claim

at *3

(4th
will

(D.S.C.

Cir.
not

Mar.

2009)

be

25,

2009},

(citations

'ripe'

for

aff'd,

omitted}

federal

judicial

review until he completes the RDAP and is denied early release
credits,
Sanchez

if that scenario does in fact transpire."} .
v.

Ledezma,

(holding

petitioner

standing

to

422

F.

faced

challenge

the

App'x
"the

735,

738

requisite

regulation"

(10th Cir.
injury

when

But see

he

and

had

2011}
ha [d]

not

yet

completed but was participating in RDAP); Torres v. Chapman, 359
Fed

App'x

459,

461

(5th

Cir.

2009)

(holding

petitioner had not completed the program,
bring

a

facial

challenge

to

RDAP) . 6

6

that,

although

she had standing to

Because

Davis

has

not

Even if the action was ripe for the Court's review, it is
likely that Davis's substantive challenge against the complained
of RDAP policy is meritless.
In sum, Davis alleges that RDAP's
policy of disallowing early release for inmates who received
sentencing enhancements for firearm offenses is arbitrary and
capricious in violation of the APA.
However, the supreme Court
9

successfully

completed

RDAP,

this

jurisdiction to consider Davis's
Accordingly,

Davis's

§

§

Court

lacks

Article

III

2241 Petition on the merits.

2241 Petition will be dismissed without

prejudice.

IV.
For the foregoing reasons,
Judgment
Dismiss
Petition

( ECF No.
(ECF No.

6}
6)

(ECF No. 1}

CONCLUSION
Respondent's Motion for Summary

wil 1 be granted.

Respondent's Motion to

will be denied as moot.

Davis's

§

2241

and the action will be dismissed without

prejudice for lack of jurisdiction.

has held that the BOP may categorically exclude inmates with
firearm sentencing enhancements from RDAP.
Lopez, 531 U.S. at
244.
Further, to the extent that Davis's APA argument may be
read as a challenge to the BOP's individual decision to deny him
eligibility for early release, this Court has already concluded
that such judicial review is "excluded by the express terms of
[18 U.S.C.] § 3625," Reed w. Wilson, No. 1:14CV652 (TSE/IDD),
2015 WL 5165125, at *3 (E. D. Va. Sept. 2, 2015) , and that "the
decision to admit an inmate to RDAP or to its early release
eligibility is reserved to the sole discretion of the BOP .
Id.
Although Davis seemingly believes that the Supreme
Court's decision in Johnson v. United States, 135 s. Ct. 2551
(2015), aids his argument, (see§ 2241 Pet. 14; Davis Aff. ~ 5),
he is mistaken.
In Johnson, the Supreme Court held "that
imposing an increased sentence under the residual clause of the
Armed Career Criminal Act violates the Constitution's guarantee
of due process."
135 S. Ct. at 2563.
Johnson is irrelevant to
the BOP' s authority to deny inmates with a two-point weapons
enhancement the one-year sentence reduction upon successful
completion of RDAP.
10

The

Clerk

is

directed

to

send a

copy of

the Memorandum

Opinion to Davis and counsel of record.
It is so ORDERED.

/sf

J2U1

Robert E. Payne
Senior United States District Judge

D~te:

!P~J-;~7

Richmond, Virginia

11