Bushey v. Butler
Filing
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MEMORANDUM OPINION AND ORDER: The court ADOPTS the 13 Proposed Findings and Recommendation of Magistrate Judge R. Clarke VanDervort; OVERRULES Petitioner's 17 Objections; DENIES Petitioner's 7 APPLICATION to Proceed Without Prepayment of Fees and Costs; DISMISSES Petitioner's 1 and 8 Section 2241 Petition and DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 6/12/2012. (cc: Petitioner, Pro Se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
RACHEL BUSHEY,
Petitioner,
v.
Civil Action No. 1:12-cv-0572
SANDRA BUTLER,
Warden, FPC Alderson,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court are Petitioner’s Application to
Proceed in forma pauperis (Doc. No. 7) and Application Under 28
U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal
Custody. (Doc. Nos. 1, 8).
By Standing Order, this action was
referred to United States Magistrate Judge R. Clarke VanDervort
for submission of findings and recommendation regarding
disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
Magistrate
Judge VanDervort submitted to the court his findings and
recommendation on March 27, 2012, in which he recommended that
the court DENY Petitioner’s Application to Proceed in forma
pauperis and DISMISS Petitioner’s Petition under Section 2241.
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
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VanDervort’s Findings and Recommendation.
The failure of any
party to file such objections within the time allotted
constitutes a waiver of such party’s right to a de novo review
by this court.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.
1989).
On April 13, 2012, Petitioner filed a Motion to Extend Time
to File Objections to the Magistrate Judge’s Proposed Findings
and Recommendation (“PF&R”). (Doc. No. 15).
The court granted
the motion, and the Petitioner filed her pro se Objection to the
PF&R on April 24, 2012 (Doc. No. 17).
The court has reviewed de
novo those portions of the PF&R to which the Movant objects and
FINDS that the objections lack merit.
Accordingly, the court
ADOPTS and incorporates herein the Magistrate Judge’s PF&R.
FACTUAL AND PROCEDURAL BACKGROUND
On December 11, 2007, the Petitioner pled guilty to
conspiring to steal U.S. mail, in violation of 18 U.S.C. § 371,
and of stealing U.S. mail, in violation of 18 U.S.C. § 1708.
United States v. Bushey, Case No. 1:07-cr-0264 (W.D. Mich. June
6, 2008) (Doc. Nos. 52 and 59).
On June 6, 2008, the United
States District Court for the Western District of Michigan
sentenced Petitioner to a 27 month term of imprisonment, to be
followed by a three year term of supervised release.
Nos. 108 and 111).
(Id. Doc.
The Petitioner filed her Notice of Appeal on
June 18, 2008, and on June 19, 2009, the Sixth Circuit Court of
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Appeals affirmed the Petitioner’s sentence.
United States v.
Bushey, 330 Fed. Appx. 540 (6th Cir. 2009).
The Petitioner’s
term of supervised released began on November 3, 2009, and was
revoked on October 17, 2011.
Nos. 131 and 153).
(Criminal No. 1:07-cr-0264, Doc.
A term of imprisonment was imposed for a
total term of twelve (12) months.
Id. at Doc. No. 165.
On February 27, 2012, the Petitioner filed her instant pro
se Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus
by a Person in State or Federal Custody.
(Doc. No. 1).
Petitioner alleges that the Bureau of Prisons (“BOP”) is
improperly denying her placement in the Mothers and Infants
Nurturing Together (“ MINT”) program and 180 days placement in a
Residential Re-Entry Center (“RRC”).
By Order entered on
February 28, 2012, Magistrate Judge VanDervort ordered that
Respondent file an answer to the allegations contained in the
Petitioner’s Application.
(See Doc. Nos. 4 and 9).
Respondent
attached the following exhibits to her Response, filed on March
8, 2012: (1) The Declaration of Tina Altizer, a Unit Manager at
FPC Alderson (Doc. No. 9-1, pp. 1 - 6.); (2) A copy of
Petitioner’s “Inmate Skills Development Plan Program Review”
dated December 5, 2011 (Id., pp. 7 - 18.); (3) A copy of
Petitioner’s “Inmate Skills Development Plan Program Review”
dated February 21, 2012 (Id., pp. 20 - 33.); (4) A copy of
Petitioner’s “Classification Program Review dated November 17,
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2011 (Id., p. 35.); and (5) A copy of the BOP’s Operations
Memorandum regarding “Mothers and Infants Nurturing Together at
the Greenbrier Birthing Center” (Id., pp. 37 -38.).
Petitioner
filed a reply to the response on March 23, 2012 (Doc. No. 11).
ANALYSIS
Objection 1.
Petitioner first objects to the Magistrate Judge’s finding
that she was appropriately considered for MINT placement
pursuant to 18 U.S.C. § 3621(b) and P.S. 7310.04.
at p. 1).
(Doc. No. 17
The Petitioner objects to this finding because “Judge
VanDervort based his finding on either an erroneous
documentation of P.S. 7310.04 and he utilized Unit Manager Tina
Altizer’s declaration as fact, despite Petitioner’s detailed
evidence of the falseness of several statements in Ms. Altizer’s
declaration.”
(Doc. No. 17 at p. 1).
Section 3621(b) grants the BOP the authority to designate a
prisoner’s place of imprisonment.
The five factors to be
considered when making this designation are:
(1)
The resources of the facility contemplated;
(2)
The nature and circumstances of the offense;
(3)
The history and characteristics of the prisoner;
(4)
Any statement by the court that imposed the sentence—
A) Concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
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B) Recommending a type of penal or correctional facility
as appropriate; and
5)any pertinent policy statement issued by the Sentencing
Commission pursuant to section 994(a)(2) of Title 28.
18 U.S.C. § 3621(b)(2006).
The BOP offers a community residential program called
Mothers and Infants Nurturing Together (MINT) for women who are
pregnant at the time of commitment. The MINT program is a
residential reentry center-based program that promotes bonding
and parenting skills for low-risk female inmates who are
pregnant.
The MINT Program at the Greenbrier Birthing Center
allows an inmate to transfer to the program up to three months
prior to delivery and remain in the program an additional 12 to
18 months to bond with the child. (Doc. No. 9-1, p. 37). The
Respondent contends that in addition to the regular Community
Corrections Center (“CCC”) referral guidelines found in Program
Statement 7310.04,1 an inmate must also meet the following
criteria to be eligible for placement in the MINT Program:
(1)Must be pregnant (prior to sentencing date OR upon
commitment) with expected delivery date prior to release;
The purpose of Program Statement 7310.04 is to “provide
guidelines to staff regarding the effective use of Community
Corrections Centers.” P.S. 7310.04.
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(2)Must have community custody prior to transfer (no inmate
who poses a significant threat to the community will
ordinarily be referred);
(3)Must have approval from institution Warden or sentencing
judge;
(4)Must volunteer and agree to participate in the program;
and
(5)The offender or guardian must assume financial
responsibility for the child’s medical care and support,
while residing at the MINT facility.
(Doc. No. 9, Exhibit 1 at p. 4-5).
The Respondent states that
“the Unit Team, and in turn, the Warden, considered inmate
Bushey’s history and characteristics; her current offense
conduct, which included drug use during her pregnancy; the
resources of the MINT program; and the sentencing judge’s
orders, in accordance with 18 U.S.C. section 3621(b).”
(Id. at
p. 4).
Petitioner contends that she was arbitrarily denied
admittance into the MINT Program based on the personal biases of
the Unit Team.
Petitioner states that she was told that there
were no written criteria needed for an inmate to be approved for
the MINT Program, and that it was in the sole discretion of the
Unit Team.
(Doc. No. 1, Exhibit 1, at p. 4).
She also states
that she was told by Ms. Altizer that her sentence was not long
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enough.
(Id. at p. 12).
She objects to the fact that Judge
VanDervort accepted as true Ms. Altizer’s affidavit, which she
states contains a “false coloring” of the facts.
In particular,
she disputes that the Unit Team followed § 3621(b)’s factors,
because she states she was repeatedly told there was no criteria
for placement in the MINT Program.
This court finds that the Petitioner’s first objection is
without merit.
The court finds that the BOP appropriately
considered the factors of § 3621 when making its decision.
The
Respondent states that the BOP considered the resources of the
MINT program and the orders from the sentencing judge in this
case when making its decision.
See § 3621(b)(1),(4).
It is
clear from the Petitioner’s own statements that the Unit Team
considered the nature of the offense, which was using cocaine
during a pregnancy.2
See § 3621(b)(2).
This is evidenced by the
Petitioner’s affidavit, which states that a member of her Unit
Team responded to an inquiry about her denial into the MINT
program “you should have thought of that before you [used].”
(Doc. No. 1, Exhibit 1, at p. 4).
The Unit, including Ms.
Altizer, considered the history and characteristics of Ms.
Bushey, including the fact that the Petitioner has admitted to
The Petitioner claims that she did not know she was pregnant at
the time she used the cocaine during her latest pregnancy. Even
if this is true, the drug use indisputably violated the terms of
her supervised release.
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using drugs during her previous pregnancies, such to the point
where her previous child had crack cocaine in its system at
birth.
(Doc. No. 9, Exhibit 1, pp. 2-3).
Ms. Bushey admitted
using crack cocaine on the day she gave birth, and testing
revealed that she had used the substance 30, 60, and 90 days
prior to giving birth to the child. Id.
Ms. Altizer also noted
that Petitioner has given birth to three children, none of whom
she had legal custody of prior to her incarceration.
Id.
And
the Unit Team specifically pointed out that it has been
documented that Ms. Bushey has used illegal substances while
pregnant with at least two of her children and possibly used
illegal substances with all of them.3
Id.
From these
statements, it is clear that the BOP considered the factors
under § 3621(b) and found that she was not an ideal candidate
for the MINT program, which involves less supervision and
relaxed safety measures.
The fact that the BOP did not
specifically articulate to the Petitioner the criteria it
considered for the MINT program does not mean it did not follow
the guidelines of § 3621(b).
Although the Petitioner laments
the fact that “the reasons given for the denial were steeped in
character judgments,” her history and characteristics are
precisely what is statutorily required to be considered.
(Doc.
The Respondent disputes this statement by Ms. Altizer, discussed
infra, p. 11.
3
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No. 1 at p.3); See § 3621(b).
Thus, the court OVERRULES the
Petitioner’s first objection.
Objection II.
Next, “Petitioner objects to Magistrate Judge R. Clarke
VanDervort’s finding that the Unit Team ‘appropriately
considered Petitioner for RRC placement pursuant to Section
3621(b),’ because it is obvious that they did not do this in
good faith.”
(Doc. No. 17 at p. 7).
The BOP responds that it
has fulfilled its obligation to review Petitioner for an RRC
placement pursuant to 18 U.S.C. 3621(b).
Pursuant to 18 U.S.C.
§ 3624(c)(1) and the Second Chance Act:
The Director of the Bureau of Prisons shall, to the
extent practicable, ensure that a prisoner serving a
term of imprisonment spends a portion of the final
months of that term (not to exceed 12 months), under
conditions that will afford that prisoner a reasonable
opportunity to adjust to and prepare for the reentry
of that prisoner into the community. Such conditions
may include a community correctional facility.
18 U.S.C. § 3624(c)(1)(2007).
As the Petitioner herself
concedes, this court is very limited in the relief it may grant
in reviewing the BOP’s determination.4
4
See 18 U.S.C. § 3621(b)(5) (“Any order, recommendation, or
request by a sentencing court that a convicted person serve a
term of imprisonment in a community corrections facility shall
have no binding effect on the authority of the Bureau under this
section to determine or change the place of imprisonment of that
person.”); Syrek v. Phillips, No. 5:07-cv-111, 2008 WL 4335494 *
7 (N.D.W. Va. Sept. 17, 2009) (BOP is only required to consider
the factors in 3621(b); even the invalidation of BOP regulations
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The court’s review is limited to determining whether the
BOP considered the factors of § 3621(b), and the court has no
legally binding power to change the placement of Petitioner.
The record demonstrates that the Petitioner received individual
consideration based on § 3621(b) factors, and that the BOP
fulfilled its statutory duties in good faith.
Thus, the
Petitioner’s second objection is OVERRULED.
Objection III.
The Petitioner’s third objection is to the Magistrate
Judge’s finding “that Unit Manager Altizer’s Declaration was not
filed in bad faith and that Petitioner’s assertion that it was a
false coloring of the facts was . . .without merit.”
17 at p. 9).
(Doc. No.
Petitioner points to three main assertions in Ms.
Altizer’s affidavit with which she disagrees: 1) the guidelines
to the MINT program; 2) Ms. Altizer’s statement that “based upon
my experience with the program, MINT participants have more
freedom than inmates still at an institution, in that they
frequently go into the community . . . and have access to the
only entitles an inmate to have his CCC placement reviewed under
the 5 factors in 3621(b)); Pierce v. Nelson, No. 1:07-cv-00680,
2009 WL 261466 * 1 (S.D.W. Va. Feb. 4, 2009) (BOP must consider
the 5 factors in developing the release plan) (citing Phillips,
2008 WL 4335494); Specter v. Director Federal Bureau of Prisons,
2010 WL 883733, *5 (D.S.C. Mar. 5, 2010) (slip copy) (stating
that “[u]nder these new regulations, an inmate presents a valid
claim only if he is denied individual consideration based on §
3621(b) factors”).
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public and often limited staff supervision while in the
community” and 3) Ms. Altizer’s statement that Petitioner “has
used illegal substances while pregnant with at least two of her
children and possibly used illegal substances with all of them.”
Id. at p. 10. Petitioner asserts that these statements and/or
opinions by Ms. Altizer demonstrate that this document was filed
“in bad faith.”
This court finds that there is no evidence that Ms.
Altizer’s statements are factually untrue, or are a false
coloring of the facts.
The fact that the Petitioner does not
agree with the statements does not mean that they were not made
in good faith.
It is implied that the BOP, through the Unit
Team and Ms. Altizer, was worried about the possibility of a
relapse by the pregnant inmate, considering her prior actions
with at least one of her other children.
This does not
demonstrate bad faith; instead, it is exactly the type of
discretion that the Unit Team is statutorily required to
exercise.
Thus, the court OVERRULES Petitioner’s third
objection.
For the foregoing reasons, the court OVERRULES Petitioner’s
objections, DENIES Petitioner’s Application to Proceed in forma
pauperis (Doc. No. 7), and DISMISSES Petitioner’s Petition under
Section 2241 (Doc. No. 1, 8).
Additionally, the court has considered whether to grant a
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certificate of appealability. See 28 U.S.C. § 2253(c). A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001). The court concludes that the governing
standard is not satisfied in this instance.
Accordingly, the
court DENIES a certificate of appealability.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to Petitioner, pro se, and counsel
of record.
IT IS SO ORDERED on this 12th day of June, 2012.
ENTER:
David A. Faber
Senior United States District Judge
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