Berry v. Marques

• Decision Date: 18 July 2018
• Docket Number: Case No. 18-cv-934 (SRN/TNL)
• Parties: Darin Gene Berry, Petitioner, v. Warden R. Marques, Respondent.
• Court: U.S. District Court — District of Minnesota

Darin Gene Berry, Petitioner, v. Warden R. Marques, Respondent.

Case No. 18-cv-934 (SRN/TNL)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

July 18, 2018

REPORT AND RECOMMENDATION

Darin Gene Berry, 27833-045, FCI-Sandstone, PO Box 1000, Sandstone MN 55072 (pro se Petitioner); and

Bahram Samie, Assistant United States Attorney, United States Attorney's Office, 300 South 4th Street, Suite 600, Minneapolis MN 55415 (for Respondent).

This matter is before the Court, United States Magistrate Judge Tony N. Leung, on a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241, (ECF No. 1), and Respondent's Response to Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, (ECF No. 9).¹ This action has been referred to the undersigned magistrate judge for report and recommendation to the Honorable Susan Richard Nelson, United States District Judge for the District of Minnesota, under 28 U.S.C. § 636 and Local Rule 72.2(b).Based on all the files, records, and proceedings herein, and for the reasons set forth below, this Court recommends that the petition be dismissed on jurisdictional grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Berry's Residential Reentry Center Placement

Petitioner Darin Gene Berry is incarcerated at the Federal Correctional Institution in Sandstone, Minnesota. (Pet., at 1, ECF No. 1; Decl. of Jon Gustin ¶ 22, ECF No. 10). Berry is serving a 53-month term of imprisonment for conspiracy to distribute methamphetamine after he was sentenced in the United States District Court for the Western District of Missouri following a guilty plea. (Pet., at 1; Gustin Decl. ¶ 22, Ex. B; United States v. Berry, Case No. 5:15-cr-06004-DGK-19 (W.D. Mo.)). Berry has a projected release date of January 20, 2019 under 18 U.S.C. § 3621(e) for successful completion of the Bureau of Prisons' ("BOP") residential drug abuse program ("RDAP"). (Gustin Decl. ¶ 22, Ex. B).²

By way of contextual background, under the Second Chance Act of 2008, the BOP

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.

18 U.S.C. § 3624(c)(1). These provisions are to be "consistent with section 3621(b)," "determined on an individual basis," and "of sufficient duration to provide the greatest likelihood of successful reintegration into the community." 18 U.S.C. § 3624(c)(6). UnderSection 3621(b), the BOP must consider five factors: "(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 (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the United States Sentencing Commission. 18 U.S.C. § 3621(b).

Berry was reviewed for a pre-release residential reentry center ("RRC") placement and it was recommended, as memorialized via an "Institutional Referral for RRC Placement" form, that Berry be placed into a pre-release RRC on July 31, 2018. (Gustin Decl. ¶ 23, Ex. C). This recommendation noted that Berry was working to obtain his GED, was participating in RDAP, had paid his court-imposed financial assessment, had taken some education courses, and maintained family ties through telephone, email, and letters. (Gustin Decl. ¶ 23, Ex. C).

Berry's institutional-level recommendation was then forwarded to the BOP's Residential Reentry Manager field office ("RRM") in Kansas City. (Gustin Decl. ¶ 10; see Gustin Decl. Ex. C (noting the recommendation was directed to the RRM)). The RRM reduced Berry's recommended RRC placement time from July 31, 2018 to September 21, 2018 "because resources were not available in the community for a longer placement." (Gustin Decl. ¶ 24). Respondent has not provided this Court any documentation reflecting RRM's decision concerning Berry's RRC placement other than a single paragraph in Gustin's Declaration, although Gustin serves as the Administrator of the BOP ResidentialReentry Management Branch's central office in Washington, DC. (Gustin Decl. ¶ 1). Gustin asserts the RRC facility where Berry would be placed "has been operating over contract capacity" so Berry's placement "had to be reduced because resources were not available in the community for a longer placement, and a placement date of September 21, 2018, was selected." (Gustin Decl. ¶ 24; ECF No. 2, at 1 ("[M]y placement was later reduced and I was informed by the Unit Team that this was due to 'Resources/Bedspace' in relation to apparent issues with RRC 'Contracts & Quotas'.")).

Berry then filed an administrative complaint with the BOP, asserting that his RRC placement was erroneously reduced and his Section 3621(e) RDAP reduction was erroneously shortened. (Pet., at 2-3; Pet. Ex. 1 ECF No. 1-1). The BOP rejected Berry's complaints. (Pet. Ex. 1).

B. Petition for Habeas Corpus

Berry filed the instant habeas corpus petition bringing three grounds for relief.³ First, Berry asserts the BOP's reduction of his RRC placement and Section 3621(e)reduction for RDAP completion are contrary to law, exceeding statutory authority, or violative of the Constitution as the BOP did not properly consider the factors espoused by Sections 3621(b) and 3624(c). (Pet., at 6-7). Second, Berry asserts the BOP did not make community confinement decisions on an individualized basis. (Pet., at 7). And third, Berry asserts the BOP arbitrarily and capriciously abused its discretion and exceeded statutory authority by not making a community confinement decision that allows for placement of sufficient duration to provide successful reintegration. (Pet., at 7). Berry requests that the Court restore his July 25, 2018 placement date and full RDAP reduction. (Pet., at 8).

Respondent asserts that the Court lacks subject matter jurisdiction to consider Berry's habeas petition. (Resp. to Pet., at 9-12, ECF No. 9). Alternatively, Respondent asserts Berry's petition fails on the merits. (Resp. to Pet., at 12-19). Berry maintains habeas relief is proper. (ECF Nos. 13, 14).

II. ANALYSIS

The basic purpose of habeas corpus is to allow a prisoner to attack the legality of his detention. Preiser v. Rodriquez, 411 U.S. 475, 484 (1973). "A motion under 28 U.S.C. § 2241 challenges the execution of a sentence while a motion under 28 U.S.C. § 2255 challenges the imposition of a sentence." Deleston v. Wilson, Case No. 13-cv-2733 (JNE/SER), 2014 WL 3384680, at *3 (D. Minn. July 10, 2014) (emphasis in original); Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002). "If the prisoner is not challenging the validity of his conviction or the length of his detention, such as loss of good time, then a writ of habeas corpus is not the proper remedy." Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996). Here, Berry is contesting the BOP's decision relating to his RRC placementand his RDAP reduction. The relief sought by Berry is release to a residential re-entry center. Berry is currently incarcerated within the District of Minnesota. Thus, this Court finds jurisdiction is proper under 28 U.S.C. § 2241. See Spencer v. Haynes, 774 F.3d 467, 469 (8th Cir. 2014) (where petitioner seeks remedy that would result in an earlier release from prison, habeas corpus is the proper remedy).

The BOP decision that aggrieved Berry—his RRC placement—is not generally subject to judicial review under the Administrative Procedures Act. 18 U.S.C. § 3625; see Santiago-Lebron v. Florida Parole Comm'n, 767 F. Supp. 2d 1340, 1351-52 (S.D. Fla. 2011) (prisoner's argument that the BOP arbitrarily and capriciously concluded he was ineligible for RDAP was not subject to judicial review under APA, where prisoner failed to present any cognizable constitutional claim, and BOP's interpretation of the statute was not contrary to well-settled law); Bernard v. Roal, 716 F. Supp. 2d 354, 360-61 (S.D.N.Y. 2010) (same for residential re-entry center under RDAP); Lyle v. Sivley, 805 F. Supp. 755, 757-60 (D. Ariz. 1992) (BOP's decisions to grant or deny pre-release treatment are committed to agency discretion and not subject to judicial review except for colorable constitutional claims or claims that agency exceeded its statutory authority); see also Anderson v. Fed. Bureau of Prisons, 506 F. Supp. 2d 28, 29-30 (D.D.C. 2007) (APA does not provide basis for federal prisoner's challenge to federal BOP's termination of prisoner from his work program).

Indeed, courts in this District have held that 18 U.S.C. § 3625 precludes judicial review of the BOP's discretionary decisions under §§ 3621 and 3624 regarding RRC placements, RDAP participation, and RDAP early release. See, e.g., Simon v. LaRiva, CaseNo. 16-cv-146 (ADM/TNL), 2016 WL 1626819, at *4-*6 (D. Minn. Mar. 10, 2016) ("So long as the BOP made an individualized determination in accordance with the appropriate considerations, this Court does not have jurisdiction to evaluate the BOP's exercise of its discretion."), report and recommendation adopted by 2016 WL 1610603 (D. Minn. Apr. 21, 2016); Crawford v. Nicklin, Case No. 13-cv-2462 (JRT/SER), 2014 WL 538699, at *7-*8 (D. Minn. Feb. 11, 2014) ("Courts in this District have also found § 3625 precludes judicial review of BOP discretionary decisions under § 3621."); Ambrose v. Jett, Case No. 13-cv-2343 (PJS/JSM), 2013 WL 6058989, at *7 (D. Minn. Nov. 15, 2013) ("[T]his Court does not have jurisdiction to review the ultimate discretionary decision by the BOP under §§ 3621(b) or 3264(c) to place Ambrose in an RRC or in home confinement placement."). Accordingly, Ground Three of Berry's Petition, a claim which asserts that the BOP arbitrarily and capriciously abused its discretion and...