Ryan v. Thomas

• Decision Date: 22 May 2012
• Docket Number: 3:11-cv-00448-MO
• Parties: TREVOR RYAN, Petitioner, v. JEFFERY THOMAS, Respondent.
• Court: U.S. District Court — District of Oregon

TREVOR RYAN, Petitioner,

v.JEFFERY THOMAS, Respondent.

3:11-cv-00448-MO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DATED: May 22, 2012

OPINION AND ORDER

TREVOR RYAN

#06754-090

Taft Federal Correctional Institution

Pro Se Petitioner

S. AMANDA MARSHALL

United States Attorney

RONALD K. SILVER

Assistant United States Attorney

Attorneys for Respondent

Mosman, District Judge.

Petitioner, an inmate at the Federal Correctional Institution, Sheridan, Oregon, at the time he filed his petition, brings this action pursuant to 28 U.S.C. § 2241. Petitioner is pro se and, accordingly, the Court construes his pleadings liberally. See Estelle v. Gamble, 429 U.S. 97, 106 (1976)(courts construe pro se pleadings liberally); Porter v. Ollison, 620 F.3d 952 (9th Cir. 2010)(prisoner pro se pleadings are given the benefit of being liberally construed).

Petitioner alleges he has unlawfully been denied eligibility for the early release incentive associated with the Bureau of Prisons ("BOP") Residential Drug Abuse Program ("RDAP"). He argues that the 2009 regulations governing RDAP have an impermissible retroactive effect and violate the Administrative Procedures Act ("APA"). Petitioner asks the Court to declare the BOP's RDAP early release incentive policies and his ineligibility designation unlawful, and grant habeas relief. Because the Court finds the regulations and internal agency guidelines under which Petitioner was denied early release are lawful and were lawfully applied, 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 substanceabuse 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 Drug Abuse Program ("RDAP").

When Congress enacted the Violent Crime Control Law Enforcement Act of 1994, 18 U.S.C. § 3621 was amended to include a discretionary early release incentive for inmates convicted of nonviolent offenses who successfully completed RDAP. See 18 U.S.C. § 3621(e)(2).¹ 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 exclude certain categories of inmates 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 substantive validity of theregulations -- that is, the BOP's authority under the statute to exclude categories of inmates from early release eligibility -- is now well established. See Lopez v. Davis, 531 U.S. 230 (2001)(the categorical exclusion of certain inmates from early release eligibility was a proper exercise of the BOP's discretion under the statute); Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000) (same, upholding 28 C.F.R. § 550.58(a)(1)(vi)(B));² Jacks v. Crabtree, 114 F.3d 983, 984-86 (9th Cir. 1997) (BOP has discretion under the statute to issue regulations categorically denying early release). The procedural validity of the regulations, however, continues to be challenged.³

Section 553 of the APA outlines notice and comment requirements for issuing agency regulations.⁴ Section 706(2)(A) of the APA 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 inaccordance with law." The Ninth Circuit has invalidated several versions of the BOP regulations implementing the early release incentive on a procedural basis under either § 553 or § 706(2)(A) of the APA. See Paulsen v. Daniels, 413 F.3d 999, 1005 (9th Cir. 2005) (1997 interim rule invalid because BOP violated notice and comment requirements of § 553); Arrington v. Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008) (invalidating 2000 regulation because "the administrative record contains no rationale explaining the [BOP's] decision to categorically exclude prisoners with convictions involving firearms").

The BOP issued the current regulations ("2009 regulations") effective March 16, 2009.⁵ In doing so, the BOP relied on the discretion of the Director under the governing statute, as recognized in Lopez, to exclude certain categories of inmates from early release eligibility. In challenges to the procedural validity of the current regulations under the APA, this Court has upheld the validity of the 2009 regulations. See e.g. Peck v. Thomas, 787 F.Supp.2d 1145 (D.Or., March 30, 2011)(upholding § 550.55 (b)(5)); Moon v. Thomas, 787 F.Supp.2d 1154 (D.Or., April 1, 2011)(upholding § 550.55 (b)(4)& (b)(5)); Ruby v. Thomas, 2011 WL 1549205 (D.Or., April 21, 2011)(upholding Program Statement rule that RDAP eligibility interviews are to be held ordinarily no lessthan 24 months from release); Fiscus v. Thomas, 2011 WL 2174025 (D.Or., May 31, 2011)(upholding sliding scale sentence reduction).

The BOP applies the 2009 regulations and accompanying Program Statements to inmates who were interviewed for RDAP and found eligible to participate -- by the BOP -- after March 16, 2009, the effective date of the regulations. See Mora-Meraz v. Thomas, 601 F.3d 933, 936 n.4 (9th Cir. 2010) (drug abuse program rules are prospective in nature, citing Bowen, 202 F.3d at 1220-21 and Cort v. Crabtree, 113 F.3d 1081, 1085 (9th Cir. 1997)).

II. Procedures for Participating in RDAP

The authority to administer RDAP and other treatment programs is delegated to the BOP. See 18 U.S.C. § 3621(b), (e), and (f). The BOP has plenary control, subject to statutory constraints, over inmate participation in treatment programs. Tapia v. United States, 131 S.Ct. 2382, 2391 ("A sentencing court can recommend ... but decision making authority rests with the BOP.")

The 2009 implementing regulations and the preceding regulations, promulgated in 2000, specify that to participate in RDAP an inmate: (1) may be referred by unit team or drug treatment staff, or (2) may apply for the program by submitting a request to staff, "ordinarily a member of the unit team or the Drug Abuse Program Coordinator." 28 C.F.R. § 550.53(c)(2009); 28 C.F.R. § 550.56(b)(2000). Both the 2000 and 2009 regulations also specify that it is the Drug Abuse Program Coordinator who makes the finaldetermination, based on admission criteria, regarding an inmate's participation in RDAP. See 28 C.F.R. § 550.53(e)(2009); § 550.56(b)(2000).

Internal agency guidelines specify that a staff referral for participation in RDAP, or an inmate's application for participation, leads to screening for documentation verifying a substance abuse problem. See Program Statement P5330.11, 2.5.8-RDAP Program Admission (2009). Inmates who pass screening are then referred for a clinical interview with the Drug Abuse Program Coordinator, who will make a determination as to whether the inmate is eligible to be placed in RDAP.⁶ Id. at 2.5.9.⁷

Pursuant to 18 U.S.C. § 3621(e)(2), the BOP may grant up to one year of early release incentive to inmates convicted of a nonviolent offense following the successful completion of RDAP. Criteria for early release and procedures to determine eligibility are outlined in Program Statement P5331.02 (3/16/2009). Early release eligibility determinations are made by legal staff at theBOP's centralized Designation and Sentence Computation Center ("DSCC") after inmates are designated eligible for RDAP and the Drug Abuse Program Coordinator submits a Request for § 3621(e) Review to the DSCC. Section 3621(e) review includes a review of both current conviction offense(s) and prior conviction offense(s). Program Statement P5331.02, pp. 1, 5-7.

II. Statement of the Case

In January 2008, the Drug Enforcement Agency ("DEA") and the State of California conducted a raid on the medical marijuana clinic Petitioner operated from his home in Southern California. (#1, Pet., Ex. 05 at 2.) Petitioner was not home at the time, but marijuana and eight firearms were seized. (Id.) On October 18, 2008, Petitioner was arrested in Wisconsin when he was found "with 147 pounds of Marijuana aboard a private twin-engine plane." (Id.) In December 2008, pursuant to a plea agreement, Petitioner pled guilty in U.S. District Court for the Western District of Wisconsin to one count of Possession with Intent to Distribute at Least 50 Kilograms of Marijuana, in violation of 21 U.S.C. §§ 841(a)(1). (#1, at 1 and Ex. 01, at 1.) On March 10, 2009, Petitioner was sentenced to 65 months imprisonment, which included a 2-point Specific Offense Characteristic enhancement for possession of firearms in connection with his offense. (#9, Attachs. 1 and 2.) The sentencing court recommended Petitioner be afforded substance abuse and mental health counseling during his incarceration, andthat pre-release placement be in a residential re-entry center with work privileges. (#1, Ex. 01 at 2.)

Petitioner was in custody from the time of his arrest. (#1, at 2.) BOP records show Petitioner was in holdover status or in transit from May 22, 2009, to June 4, 2009; and was formally designated to Taft Correctional Institution ("TCI") on June 4, 2009. (#9, at 3; Attach. 3.) On February 23, 2010, Petitioner was interviewed for RDAP by staff at TCI and found to be eligible, and he was placed on the waitlist. (Id.; #1, Ex. 05 at 3.) On March 19, 2010, legal staff at the DSCC completed the requisite Offense Review for the early release incentive pursuant to § 3621(e), and concluded Petitioner was ineligible. (#1, Ex. 03.) The offense review...