Moon v. Thomas

• Decision Date: 01 April 2011
• Docket Number: No. CV. 10–1154–MO.,CV. 10–1154–MO.
• Citation: 787 F.Supp.2d 1154
• Parties: Louis D. MOON, Petitioner,v.Jeffrey THOMAS, Warden, Respondent.
• Court: U.S. District Court — District of Oregon

787 F.Supp.2d 1154

Louis D. MOON, Petitioner,

v.Jeffrey THOMAS, Warden, Respondent.

No. CV. 10–1154–MO.

United States District Court, D. Oregon.

April 1, 2011.

OPINION TEXT STARTS HEREWest CodenotesPrior Version Recognized as Invalid28 C.F.R. § 550.55

Stephen R. Sady, Office of the Federal Public Defender, Portland, OR, for Petitioner.Dwight C. Holton, United States Attorney, Ronald K. Silver, Assistant United States Attorney, Portland, OR, for Respondent.

OPINION AND ORDER

MOSMAN, District Judge.

Petitioner, an inmate at the Federal Correctional Institution, Sheridan, Oregon (“FCI Sheridan”), brings this habeas corpus action pursuant to 28 U.S.C. § 2241. He alleges the Bureau of Prisons' (“BOP”) regulations that categorically disqualify (1) inmates with a current felony conviction for an offense involving the carrying, possession, or use of a firearm or other dangerous weapon or explosives, and (2) inmates with certain prior felony or misdemeanor convictions from the early release incentive associated with the Residential Drug Abuse Treatment Program (“RDAP”), codified at 28 C.F.R. §§ 550.55(b)(5) and 550.55(b)(4)(2009) respectively, are procedurally invalid under § 706(2)(A) of the APA. Petitioner asks that the Court find the 2009 regulations invalid and order the BOP to designate him eligible for the early release incentive upon his successful completion of RDAP. While the Court finds 28 C.F.R. §§ 550.55(b)(5) and 550.55(b)(4) (2009) to be valid under the APA, an associated internal agency guideline used for eligibility determinations, Program Statement P5162.05, sec. 3, is unlawful under Ninth Circuit law to the extent it categorizes a § 922(g) conviction, Felon in Possession of Firearm, as a disqualifying crime of violence. Because Petitioner's ineligibility determination stands without the application of P5162.05, sec. 3, Respondent's Motion to Dismiss (# 17) is granted, and the Petition for Writ of Habeas Corpus (# 1) is denied.

BACKGROUND

I. Statutory Background.

In 18 U.S.C. §§ 3621–3625, Congress vested the BOP with broad authority to manage the imprisonment of a convicted person, and specified “[t]he Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” 18 U.S.C. § 3621(b). In § 3621(e), Congress articulated a specific statutory mandate for residential substance abuse treatment programs for eligible prisoners. The program the BOP created to satisfy this mandate is the Residential Drub Abuse Program (“RDAP”).

In 1994, Congress enacted the Violent Crime Control Law Enforcement Act of 1994 (“VCCLEA”), which amended 18 U.S.C. § 3621 to include a discretionary early release incentive for inmates convicted of non-violent offenses who successfully completed RDAP. 18 U.S.C. § 3621(e)(2).¹ The statute does not define “non-violent offenses.”

Beginning in 1995, exercising its broad discretion under the statute, the BOP promulgated a series of implementing regulations and internal agency guidelines for administering the early release incentive under 3621(e)(2). The regulations and guidelines have excluded inmates with a current felony conviction for an offense involving the carrying, possession, or use of a firearm or other dangerous weapon or explosives, as well as inmates with certain prior felony or misdemeanor convictions from early release eligibility. See 28 C.F.R. § 550.55(b)(2009). The substantive and procedural validity of these categorical exclusions have been challenged in court repeatedly.

The Ninth Circuit upheld the substantive validity of the BOP's exclusion based on conviction for the carrying, possession, or use of a firearm in Bowen v. Hood, 202 F.3d 1211 (2000) (upholding 28 C.F.R. § 550.58(a)(1)(vi)(B)).² The circuit court held the categorical exclusion of certain inmates from early release eligibility was a proper exercise of the BOP's discretion under the statute, and stated: “we see nothing unreasonable in the Bureau's making the common-sense decision that there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in their felonious employment, even if they wound up committing a nonviolent offense this time.” Id. at 1119.

The Supreme Court upheld the substantive validity of the BOP's categorical exclusion of inmates from early release eligibility in Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). Finding 28 C.F.R. § 550.58(a)(1)(vi)(B) was a proper exercise of the Bureau's discretion under the statute, the Court stated:

[T]he Bureau need not blind itself to pre-conviction conduct that the agency reasonably views as jeopardizing life and limb.

* * * * *

[T]he statute's restriction of early release eligibility to nonviolent offenders does not cut short the considerations that may guide the Bureau. [T]he Bureau may consider aspects of the conduct of conviction, even though the conviction is a criterion of statutory eligibility.

Id. at 243–244, 121 S.Ct. 714 (emphasis added). The Court also held the “Bureau reasonably concluded than an inmate's prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision.” Id.

In Lopez, the Supreme Court did not address the procedural validity of the categorical exclusions under the APA. Id. at 244 n. 6, 121 S.Ct. 714. The Ninth Circuit, however, has invalidated the BOP's regulations implementing the early release incentive under both § 553 and § 706(2)(A) of the APA. Section 553 specifies notice and comment requirements.³ Section 706(2)(A) specifies a “reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

II. Ninth Circuit Litigation.A. 1995 Rule—28 C.F.R. § 550.58(a) (1995).

In promulgating § 550.58 and the accompanying internal agency guidelines, the BOP interpreted the statutory term “convicted of non-violent offenses” and defined which inmates had convictions for “crimes of violence” that would make them ineligible for early release.⁴ “Felon firearm possession” was categorized as a crime of violence rendering inmates ineligible for early release. In Davis v. Crabtree, 109 F.3d 566, 568–70 (9th Cir.1997), the Ninth Circuit found the BOP's statutory interpretation of “nonviolent offenses” contrary to circuit law and held the regulation invalid. The Ninth Circuit stated: “the BOP may not interpret the term “nonviolent offense” to exclude the offense of felon in possession of a firearm. We are bound by Downey [ v. Crabtree, 100 F.3d 662 (9th Cir.1996)(crime of violence does not encompass felon firearm possession under Ninth Circuit law) (citing cases) ].” Davis, 109 F.3d at 568–70.

B. 1991 Interim Rule.

Responding to a Circuit split on the question of the substantive validity of the 1995 regulations, the BOP promulgated new interim rules. Rather than rely on its interpretation of the statutory language “convicted of non-violent offenses” and defining “crimes of violence” as it had previously, the BOP relied on the Director's discretion under the statute to categorically exclude inmates convicted of certain offenses from early release eligibility, including those involving the possession of firearms. 28 C.F.R. § 550.58(a)(1)(vi)(B) (1997). In Paulsen v. Daniels, 413 F.3d 999, 1005 (9th Cir.2005), the Ninth Circuit invalidated the 1997 interim rule, finding the BOP violated the notice and comment requirements of the APA because (1) the interim regulation was made effective prior to its publication in the Federal Register; and (2) although the BOP solicited comments, the comments were not taken into account prior to the regulation being made effective.

C. 2000 Final Rule.

In December 2000, respecting the notice and comment requirement under § 553 of the APA, the BOP promulgated a final regulation that was identical to the 1997 interim rule. In Arrington v. Daniels, 516 F.3d 1106 (9th Cir.2008), the Ninth Circuit invalidated 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000) under § 706(2)(A) of the APA. The circuit court found the first rationale identified by the district court as a basis for categorical exclusion—the increased risk that offenders with conviction involving firearms might pose to the public—was “entirely absent from the administrative record.” Arrington, 516 F.3d at 1113. The Ninth Circuit noted,

the Bureau articulated this rationale in its brief to the Supreme Court in Lopez ... and is precisely the type of post-hoc rationalization ... that the [court is forbidden] to consider in conducting review under the APA.

Because no public safety rationale is present in the administrative record, the district court erred in relying on this explanation as a basis for its conclusion that the final rule withstands arbitrary and capricious review.

Id. The Ninth Circuit also found the second rationale proffered by the BOP—need for uniformity—did not justify a categorical exclusion of prisoners with non-violent convictions involving firearms instead of a categorical inclusion of prisoners with nonviolent convictions involving firearms. Id. at 1114. The court found the BOP had not explained why, in seeking uniformity, it chose to exclude prisoners rather than include them. Id.

In a separate challenge to the 2000 Final Rule, this time contesting the BOP's consideration of prior convictions in eligibility determinations without regard to how long ago they occurred, codified at 28 C.F.R. § 550.58(a)(1)(iv), the Ninth Circuit again invalidated the rule under § 706(2)(A).⁵ Crickon v. Thomas, 579 F.3d 978, 985–87 (9th Cir.2009). The court found:

Despite issuing three interim rules and receiving comments relating to the use of prior convictions in response to at least two of these three rules, the BOP never identified,...