Giovanetti v. Holland

• Decision Date: 28 February 2018
• Docket Number: No. 5:16-CT-3152-D,5:16-CT-3152-D
• Citation: 426 F.Supp.3d 189
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: John C. GIOVANETTI, Plaintiff, v. C. HOLLAND, et al., Defendants.

426 F.Supp.3d 189

John C. GIOVANETTI, Plaintiff,

v.C. HOLLAND, et al., Defendants.

No. 5:16-CT-3152-D

United States District Court, E.D. North Carolina, Western Division.

Signed February 28, 2018

John C. Giovanetti, pro se

Genna D. Petre, United States Attorney's Office, Raleigh, NC, for Defendants

ORDER

JAMES C. DEVER III, Chief United States District Judge

On June 27, 2016, John C. Giovanetti ("Giovanetti"), an inmate at Federal Correctional Complex Butner proceeding pro se and in forma pauperis, filed this action seeking declaratory and injunctive relief [D.E. 1, 4, 9]. Giovanetti attacks the decision of the Bureau of Prisons ("BOP"), which the BOP made pursuant to BOP Program Statement 5110.17 (May 16, 2014), to notify state and local law enforcement officials that Giovanetti soon will be on federal supervised release and that his criminal history includes a conviction for a "crime of violence." Thereafter, Giovanetti filed various motions seeking to amend his complaint and recharacterize his action as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Pl.'s Mot. to Substitute Attach. [D.E. 7-1]; Pl.'s Mot. to Recharacterize Attach. [D.E. 10-1]; Pl.'s Mot. to Am. Attach. [D.E. 14-1].

On January 17, 2017, the court granted in part and denied in part Giovanetti's motions to amend [D.E. 17]. The court construed the claim to implicate the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551, et seq., allowed the claim to proceed, and held that Giovanetti could not recharacterize the action as a habeas petition. See id. 2.

On March 23, 2017, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted [D.E. 24] and filed a memorandum in support [D.E. 25]. On April 12, 2017, Giovanetti responded in opposition [D.E. 27]. As discussed below, the court grants defendants' motion to dismiss and dismisses the action.

I.

On May 12, 2008, the United States District Court for the Middle District of Florida sentenced Giovanetti to 135 months' imprisonment after he was convicted of 23 counts of wire fraud, bank fraud, and conspiracy. See Pl.'s Mot. to Am. Attach. [D.E. 14-1] 3. Giovanetti's projected release date is June 25, 2018. See BOP Inmate Locator, http://www.bop.gov/inmateloc/ (search by inmate name) (last visited Feb. 28, 2018).

Pursuant to BOP Program Statement 5110.17 (May 16, 2014) ("BOP Program Statement"), the BOP classified Giovanetti as a "violent offender" because his criminal history includes a conviction for a "crime of violence" in Florida in 1974. See Compl. [D.E. 1] at 3-9; BOP Program Statement § 3(b). BOP Program Statement § 3(b) states:

Procedures in this Program Statement also apply to any prisoner in Bureau custody:

• Who is releasing to supervised release, probation, or parole.

• Whose current offense of conviction is a "drug trafficking crime" or a "crime of violence" as defined in Sections 2.b, or

• Whose criminal history as determined by staff, in the exercise of professional judgment includes a conviction for "drug trafficking" or a "crime of violence" as defined in sections 2.b. For "drug trafficking crimes," staff consider only Federal convictions as a basis for notification. For "crimes of violence," staff consider both state and federal convictions as a basis for notification.

BOP Program Statement § 2(b) states:

A Crime of Violence is defined under Title 18 U.S.C. § 924(c)(3) as an offense that is a felony and:

• Has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

• That by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Giovanetti seeks to prevent the BOP from notifying state and local law enforcement officials that he is about to be released from federal prison, has a term of federal supervised release, and has a criminal history that includes a conviction for a crime of violence. See Compl. at 1.

The BOP determined that Giovanetti has a "crime of violence" in his criminal history due to a 1974 Florida conviction. On January 10, 1974, Giovanetti and two co-defendants, while displaying a pistol, allegedly robbed an individual of currency valued at more than $ 100 that was the property of Food Fair, Inc., doing business as Pantry Pride. See [D.E. 14-2] 23. Florida charged Giovanetti with robbery and use of a firearm in commission of a felony. See id. On March 11, 1974, Giovanetti pleaded guilty to the lesser offense of attempted robbery. [D.E. 14-2] 24. On June 5, 1974, the Florida sentencing judge withheld adjudication and placed Giovanetti on probation for seven years. [D.E. 14-2] 25. On January 1, 1978, Giovanetti absconded from probation. On August 30, 1978, Giovanetti was arrested for violating probation. [D.E. 14-2] 20. On September 11, 1978, Giovanetti pleaded guilty to violating probation. Id. On January 15, 1979, Florida reinstated Giovanetti's probation. Id. On June 5, 1981, Florida terminated Giovanetti's probation. Id.

Giovanetti makes three arguments. First, Giovanetti argues that the notification requirement in the BOP Program Statement misconstrues 18 U.S.C. § 4042(b), exceeds the BOP's authority under 18 U.S.C. § 4042(b), and is arbitrary and capricious. See Compl. [D.E. 1] 6-7; Pl.'s Mot. to Am. Attach. [D.E. 14-1] 3. Second, Giovanetti argues that he was not convicted of a "crime of violence" within the meaning of the BOP Program Statement or 18 U.S.C. § 924(c)(3), because he pleaded guilty to attempted robbery. See Pl.'s Mot. to Am. Attach. [D.E. 14-1] at 21-27. Finally, Giovanetti argues that, because he was placed on probation and adjudication was withheld after his 1974 guilty plea to attempted robbery, he was not "convicted" within the meaning of the BOP Program Statement or 18 U.S.C. § 4042(b)(3)(B). See Pl.'s Resp. [D.E. 27] at 5.

II.

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted" tests a claim's legal and factual sufficiency. Fed. R. Civ. P. 12(b)(6) : see Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-63, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) ; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) ; accord Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a pleading's legal conclusions. See, e.g., Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677-79, 129 S.Ct. 1937. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g., Fed. R. Evid. 201 ; Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). As for Giovanetti's argument that the BOP Program Statement misconstrues 18 U.S.C. § 4042(b), exceeds BOP's authority under 18 U.S.C. § 4042(b), and is arbitrary and capricious, the BOP must provide a notice of release for certain prisoners. See 18 U.S.C. § 4042(a)(5) ("The Bureau of Prisons, under the direction of the Attorney General, shall provide notice of release of prisoners in accordance with subsections (b) and (c)."). Section 4042(b) states:

(1) At least 5 days prior to the date on which a prisoner described in paragraph (3) is to be released on supervised release, or, in the case of a prisoner on supervised release, at least 5 days prior to the date on which the prisoner changes residence to a new jurisdiction, written notice of the release or change of residence shall be provided to the chief law enforcement officers of each State, tribal, and local jurisdiction in which the prisoner will reside. Notice prior to release shall be provided by the Director of the Bureau of Prisons. Notice concerning a change of residence following release shall be provided by the probation officer responsible for the supervision of the released prisoner, or in a manner specified by the Director of the Administrative Office of the United States Courts. The notice requirements under this subsection do not apply in relation to a prisoner being protected under chapter 224.

(2) A notice under paragraph (1) shall disclose--

(A the prisoner's name;

(B) the prisoner's criminal history, including a description of the offense of which the prisoner was convicted; and

(C) any restrictions on conduct or other conditions to the release of the prisoner that are imposed by law, the sentencing court, or the Bureau of Prisons or any other Federal agency.

(3) A prisoner is described in this paragraph if the prisoner was convicted of—

(A) a drug trafficking crime, as that term is defined in section 924(c)(2) ; or

(B) a crime of violence (as defined in section 924(c)(3) ).

18 U.S.C. § 4042(b).

Section 924(c)(3) defines a "crime of violence" as:

an offense that is a felony and-

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). The BOP Program Statement implements BOP policy concerning 18 U.S.C. § 4042.

The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702....