Paydon v. Hawk, Civil Action No. 96-1926.

• Decision Date: 09 April 1997
• Docket Number: Civil Action No. 96-1926.
• Citation: 960 F.Supp. 867
• Parties: Donald E. PAYDON, Petitioner, v. Kathleen HAWK, Director, Bureau of Prisons, Respondent.
• Court: U.S. District Court — District of New Jersey

960 F.Supp. 867

Donald E. PAYDON, Petitioner, v. Kathleen HAWK, Director, Bureau of Prisons, Respondent.

Civil Action No. 96-1926.

United States District Court, D. New Jersey.

April 9, 1997.

Donald E. Paydon, Fort Dix, NJ, pro se.

Faith S. Hochberg, United States Attorney, James B. Clark, III, Assistant United States Attorney, Trenton, NJ, Darrin Howard, Attorney Advisor, Fort Dix, NJ, for Respondent.¹

OPINION

ORLOFSKY, District Judge:

Pro se Petitioner, Donald E. Paydon, has filed an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241,² alleging that the United States Bureau of Prisons ("BOP"), in classifying his offense of possession of a firearm by a convicted felon, pursuant to 18 U.S.C. § 922(g)(1), a "crime of violence" within the meaning of 18 U.S.C. § 924(c)(3), improperly denied him eligibility for a reduction in sentence pursuant to 18 U.S.C. § 3621(e)(2)(B), and denied him his right to due process of law and equal protection.

The issue presented by Petitioner's application is whether the BOP's determination that the offense of which he was convicted, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), is a "crime of violence," within the meaning of § 924(c)(3), and therefore not a "nonviolent offense" under § 3621(e)(2)(B), is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." See 5 U.S.C. § 706(2)(a). For the reasons that follow, this Court finds that the BOP acted within its discretion in classifying the offense of possession of a firearm by a convicted felon a "crime of violence," and that the Petitioner does not have a federally or constitutionally protected right to eligibility for early release upon completion of a drug treatment program. Accordingly, Petitioner's application for a writ of habeas corpus will be denied.

I. Facts and Procedural History

Petitioner is currently serving a fifty-one month sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), at the Federal Correctional Institution ("FCI"), Fort Dix, New Jersey. His projected release date is July 17, 1998, based upon the receipt of "good time" credit pursuant to 18 U.S.C. § 3624(b). The BOP has determined that Petitioner's offense of possession of a firearm by a convicted felon does not qualify as a "nonviolent offense" under 18 U.S.C. § 3621, which, inter alia, permits the BOP to reduce the period of custody for an inmate who completes a qualifying drug abuse treatment program.

On April 24, 1996, Petitioner commenced this action by filing a complaint pursuant to 28 U.S.C. §§ 1331, 1343, alleging that the Respondent's failure to classify his offense as a nonviolent offense under § 3621(e)(2)(B) violated his rights under federal law and the United States Constitution.³ By order dated June 26, 1996, this Court ordered that Petitioner's complaint be construed as an application for a writ of habeas corpus.

II. Discussion

Habeas relief under 28 U.S.C. § 2241 is reserved for prisoners who are in custody in violation of the laws or the Constitution of the United States. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Barden v. Keohane, 921 F.2d 476, 481-82 (3d Cir.1990). Petitioner argues that he is entitled to such relief because the BOP's classification of his offense, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), as a crime of violence violates federal law and the United States Constitution.

Pursuant to the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"), Congress vested the BOP with the authority to reduce "the period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program ... but such reduction may not be more than one year from the term the prisoner must otherwise serve." 18 U.S.C. § 3621(e)(2)(B). While the statute, itself, does not define which offenses qualify as "nonviolent" offenses, the BOP regulations promulgated thereunder adopt the definition of "crime of violence" contained in 18 U.S.C. § 924(c)(3),⁴ for the purpose of determining which offenses do not qualify as "nonviolent" offenses under § 3621(e)(2)(B). See 28 C.F.R. § 550.58.⁵ In addition, Program Statement 5162.02 of the Bureau of Prisons lists numerous offenses and categorizes them as either crimes of violence in all cases or crimes of violence depending on the facts in a particular case for purposes of § 3621. See Respondent's Brief, Ex.E. The BOP's Program Statement lists a violation of § 922(g)(1) as a crime of violence in all cases. Id. Petitioner contends that the BOP improperly considers the offense of which he was convicted, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), a "crime of violence," within the meaning of § 924(c)(3), and therefore not a "nonviolent offense" under § 3621(e)(2)(B).

This Court does not review BOP decisions de novo. Indeed, pursuant to the Administrative Procedure Act ("APA"), this Court's review of such BOP classification decisions is limited to whether the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(a); Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).

Thus, only if the BOP's decisions to employ the definition of "crime of violence" contained in § 924(c)(3), for the purpose of determining whether a prisoner has been "convicted of a nonviolent offense" under § 3621(e)(2)(B), and to classify the Petitioner's offense of possession of a firearm by a convicted felon as a "crime of violence" under § 924(c)(3), are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," see 5 U.S.C. § 706(2)(a), may this Court interfere with the BOP's classification.

As a threshold matter, it is clear that the BOP's decision to employ the definition of "crime of violence" contained in § 924(c)(3) for the purpose of determining whether a prisoner has been "convicted of a nonviolent offense" under § 3621(e)(2)(B) is not arbitrary. Moreover, I find that "it is reasonable for the BOP to define a nonviolent offender as someone who has not committed a crime of violence." See Crooker v. Morris, No. 95-2820, 1996 WL 608553, *2 (D.N.J. Oct.17, 1996). Indeed, the validity of 28 C.F.R. § 550.58, the BOP's regulation prescribing the use of the definition of "crime of violence" contained in § 924(c)(3), for the purpose of determining whether a prisoner has been "convicted of a nonviolent offense" under § 3621(e)(2)(B), has been upheld by each of the courts to consider the issue. See, e.g., Davis v. Crabtree, 109 F.3d 566 (9th Cir. 1997); Downey v. Crabtree, 100 F.3d 662 (9th Cir.1996); Fonner v. Thompson, 955 F.Supp. 638 (N.D.W.Va.1997); Piccolo v. Lansing, 939 F.Supp. 319 (D.N.J.1996); Crooker, 1996 WL 608553; Litman v. Morris, No. 96-1207 (D.N.J. July 31, 1996), aff'd 107 F.3d 7 (3d Cir.1997); Fernandez v. Lansing, No. 96-6000 (D.N.J. July 31, 1996), aff'd 107 F.3d 7 (3d Cir.1997); Sesler v. Pitzer, 926 F.Supp. 130 (D.Minn.1996).

Having concluded that it is proper for the BOP to use the definition of "crime of violence" contained in § 924(c)(3) for the purpose of determining whether a prisoner has been "convicted of a nonviolent offense" under § 3621(e)(2)(B), this Court must now consider whether the BOP's determination that a violation of § 922(g)(1) is a "crime of violence" within the meaning of § 924(c)(3), is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." See 5 U.S.C. § 706(2)(a).

All of the district courts within this Circuit which have considered this precise issue have concluded that the BOP neither acts in an arbitrary or capricious manner, nor abuses its discretion, nor violates any federal law by classifying a violation of § 922(g)(1) as a crime of violence within the meaning of § 924(c)(3). See Piccolo, 939 F.Supp. 319; Crooker, 1996 WL 608553; Litman, No. 96-1207 (D.N.J. July 31, 1996). In each of these cases, the court concluded that, in light of the fact that "[t]he Third Circuit has not decided whether possession of a weapon by a felon is a crime of violence under 18 U.S.C § 924(c)(3)," a BOP "determination that felon in possession of a weapon is not a `nonviolent offense' under 18 U.S.C. § 3621(e)(2)(B) is within the discretion Congress gave the Bureau for the administration of the residential treatment program." Piccolo, 939 F.Supp. at 320-21.

The Ninth Circuit's decisions to the contrary in Davis, 109 F.3d 566, and Downey, 100 F.3d 662, are not controlling in the instant case. In both of these cases, the court concluded that, although the BOP "has broad discretion to adopt any reasonable definition of `nonviolent offense' under § 3621(e)(2)(B)," Downey, 100 F.3d at 666, once the BOP adopts § 924(c)(3)'s definition of crime of violence in determining whether an offense is a "nonviolent offense" under 18 U.S.C. § 3621(e)(2)(B), the BOP is bound by that Circuit's interpretation of § 924(c)(3). Accordingly, the Davis and Downey courts concluded that, because the Ninth Circuit had explicitly held "that possession of a firearm by a felon is not a `crime of violence' under § 924(c)," see United States v. Canon, 993 F.2d 1439 (9th Cir.1993), the BOP's determination that the possession of a firearm by a convicted felon in violation of § 922(g)(1) was a crime of violence under § 924(c) was contrary to the "well-established" law of that Circuit. Davis, 109 F.3d 566, 568-69; Downey, 100 F.3d at 667.

In contrast, because the "Third Circuit has not decided whether possession of a weapon by a felon is a crime of violence under 18 U.S.C. § 924(c)(3)," see Piccolo, 939 F.Supp. at 320, a determination by the BOP that a violation of § 922(g)(1) is a crime of violence under § 924(c) is not...