Santiago–lebron v. Fla. Parole Comm'n

• Decision Date: 23 February 2011
• Docket Number: Case No. 10–22291–CIV.
• Citation: 767 F.Supp.2d 1340
• Parties: Jose SANTIAGO–LEBRON, Petitioner,v.FLORIDA PAROLE COMMISSION, Respondent.
• Court: U.S. District Court — Southern District of Florida

767 F.Supp.2d 1340

Jose SANTIAGO–LEBRON, Petitioner,

v.FLORIDA PAROLE COMMISSION, Respondent.

Case No. 10–22291–CIV.

United States District Court, S.D. Florida.

Feb. 23, 2011.

Jose Santiago–Lebron, Miami, FL, pro se.Christopher Macchiaroli, U.S. Attorney's Office, Miami, FL, for Defendants.

ORDER AFFIRMING AND ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION

PATRICIA A. SEITZ, District Judge.

THIS MATTER is before the Court upon the Report of Magistrate Judge [DE–14] issued by the Honorable Patrick A. White, United States Magistrate Judge, recommending that Jose Santiago–Lebron's petition for writ of habeas corpus be denied on the merits. In summary, Magistrate White determined that the Bureau of Prisons' decision to cancel a Residential Drug and Alcohol Program for Spanish-speaking inmates did not violate Petitioner's constitutional rights. Having carefully reviewed, de novo, Magistrate Judge White's comprehensive Report and the record, the Court fully agrees with Magistrate White's thorough and well-reasoned analysis of the issues. Based on the legal analysis set forth in the Report, and noting that no objections have been filed, it is hereby

ORDERED that:

(1) Magistrate White's Report [DE–14] is AFFIRMED and ADOPTED, and incorporated by reference into this Court's Order;

(2) Petitioner Jose Santiago–Lebron's Petition for Writ of Habeas Corpus [DE–1] is DISMISSED; and

(3) This case is CLOSED.

REPORT OF MAGISTRATE JUDGE

P.A. WHITE, United States Magistrate Judge.

I. Introduction

Jose Santiago–Lebron, who is presently confined at the Federal Correctional Institution at Miami, Florida, has filed a pro se petition for writ of habeas corpus under Title 28, Section 2241,¹ attacking the cancellation of a Residential Drug and Alcohol Program (“RDAP”) for Spanish-speaking inmates.

This cause has been referred to the undersigned for consideration and report pursuant to Title 28, Section 636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.

The Court has for its consideration the petition (DE# 1), the Government's response to an order to show cause (DE# 12), and the Petitioner's reply (DE # 13).

Construing the pro se Petitioner's arguments liberally, he appears to raise the following claims in his Section 2241 petition (renumbered):

1. The Bureau of Prisons (“BOP”) violated the Ex Post Facto Clause by cancelling the Spanish RDAP because: (a) BOP applied Program Statement (“PS”) 5330.11 retroactively; and (b) the Petitioner had a “settled expectation” of participating in a Spanish RDAP and a potentially receiving a sentence reduction;

2. The BOP violated Equal Protection by cancelling the Spanish RDAP because: (a) the Petitioner is similarly situated to English-speaking inmates who took the English RDAP at same time Petitioner was deemed eligible for the Spanish RDAP under PS 5530.10, and who were allowed to participate in RDAP, graduate as scheduled, and receive sentence reductions; and (b) cancellation of the Spanish RDAP and its replacement with an English RDAP had no rational basis;

3. The BOP violated the Due Process Clause by cancelling the Spanish RDAP and making him ineligible for early release after he had started participating in the program;

4. The BOP violated the Administrative Procedure Act (“APA”) by: (a) arbitrarily and capriciously concluding the Petitioner was ineligible for RDAP; and (b) cancelling the Spanish RDAP without adhering to the “announce and comment” requirement; and

5. The BOP violated its own rules and procedures by: (a) enacting PS 5330.11 contrary to Congress' intent; (b) applying PS 5330.11 in a discriminatory manner contrary to it's non-discrimination policy, PS 1040.04; and (c) applying PS 5330.11 to benefit an “influential” inmate contrary to its employee code of conduct, PS 3420.09.

(DE# 1).

He seeks declaratory judgment, early release credit as though had he successfully graduated from a RDAP program, and immediate release based on that credit.

II. Procedural History

The pertinent procedural history of this case is as follows. In the United States District Court for the District of Puerto Rico, case 07–0121, Santiago–Lebron entered a guilty plea to conspiracy to possess with intent to distribute at least 100 but less than 400 grams of heroin within 1,000 feet of public housing, a public elementary school or park. A second count was dismissed. (DE# 1 at 16). The Court imposed sixty months imprisonment with the recommendations that he be afforded educational and vocational training and be designated to serve his sentence in Florida.

On August 26, 2008, the Petitioner had an eligibility interview for RDAP. (DE # 12–1 at 2). On October 1, 2008, RDAP staff determined that the Petitioner was eligible for a Spanish RDAP program and placed him on a waiting list on November 4, 2008. (DE# 12–1 at 2). In February, 2009, a notice was posted informing inmates that the Spanish RDAP program would be phased out. (DE# 12–1 at 2). On March 16, 2009, the regulation and policy governing RDAPs was amended. See 28 C.F.R. 550.53; PS 5330.11. Specifically, PS 5330.11 amended the eligibility standards for an inmate's participation in RDAP to require proficient communication in English. Staff at FCI–Miami thought they could proceed with a Spanish RDAP program scheduled to begin on June 3, 2009, and ending on March 19, 2010. (DE# 12–1 at 3). An undated posting by the RDAP coordinator indicates the Petitioner was accepted into the Spanish RDAP. (DE# 1 at 35). On June 3, 2009, the Petitioner began attending the Spanish RDAP. (DE # 12–1 at 3). On June 19, 2009, the South Eastern Regional Office instructed FCI–Miami staff to discontinue the June 3 Spanish RDAP to bring it into compliance with PS 5330.11. (DE# 12–1 at 3); (DE# 12–2 at 3). FCI–Miami canceled the Spanish RDAP that same day and interviewed the Petitioner to determine his English proficiency. (DE# 12–1 at 3–4). The Petitioner was found to be “unqualified” for RDAP under PS 5330.11 because he was unable to understand or communicate in English well enough to participate. (DE# 12–1 at 4).

On June 28, 2009, Santiago–Lebron filed an informal administrative grievance alleging the Spanish RDAP's cancellation deprived him of the benefit of early release. (DE# 1 at 20). He argued he was not being permitted to take part in the program like his English-speaking counterparts in violation of equal protection and BOP's Program Statement 3420.09, which prohibits discrimination, and that a BOP policy was being applied retroactively in violation of the Ex Post Facto clause. Warden Atkinson denied the request for administrative remedy on August 3, 2009, because the RDAP program is unavailable for inmates who have problems understanding English and encouraged the Petitioner to enroll in the Education department for testing. (DE# 1 at 23).

Santiago–Lebron filed an appeal on August 17, 2009, from Atkinson's response. (DE# 1 at 28); see also (DE# 1 at 24) (an apparently duplicative undated and unsigned appeal form). The Regional Director responded on October 7, 2005. (DE# 1 at 27). He denied the appeal because Santiago–Lebron was not being excluded from the RDAP based on nationality or race. Rather, he did not qualify for the program because he could not understand English. He encouraged the Petitioner to pursue an English as a Second Language (“ESL”) program and apply for RDAP when he is able to satisfy the admission criteria.

Santiago–Lebron appealed from the Regional Director's response on December 15, 2009. (DE# 1 at 32). The National Inmate Appeals administrator denied the appeal on April 20, 2010, because the Warden and Regional Director had adequately addressed Santiago–Lebron's concerns. (DE# 1 at 31).

Santiago–Lebron filed the instant petition on June 27, 2010.

III. Statutory, Regulatory, and Policy Background

The Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA) requires the BOP to “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). To carry out this requirement, the BOP must provide residential substance abuse treatment for all eligible prisoners, “subject to the availability of appropriations....” 18 U.S.C. § 3621(e)(1). An “eligible prisoner” is one who is “determined by the Bureau of Prisons to have a substance abuse problem,” and who is “willing to participate in a residential substance abuse treatment program.” 18 U.S.C. § 3621(e)(5)(B)(i) and (ii). As an incentive for the successful completion of the residential treatment program, the BOP may, in its discretion, reduce an inmate's sentence by up to one year. 18 U.S.C. § 3621(e)(2); Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001).

As a corollary, BOP's post-sentence administration statute, Title 18, Section 3624(f), contains a mandatory functional literacy requirement for all mentally capable inmates to reach eighth-grade literacy. As part of this provision, non-English speaking inmates are required to participate in an English–As–A–Second–Language program until they function at the equivalence of the eighth grade on a nationally recognized educational achievement test. 18 U.S.C. § 3624(f)(4).

BOP's regulations implementing these statutes provide that, in order to be admitted into RDAP, inmates must: (1) have a verifiable substance use disorder; (2) sign an agreement acknowledging program responsibility; and (3) when beginning the program, be able to complete all three components of the program. 28 C.F.R. 550.53(b)(1)-(3). The Drug Abuse Program Coordinator “decides whether to place inmates in RDAP based on the criteria set forth in paragraph (b)....” 28 C.F.R. § 550.53(e).

BOP's policies applying the regulations, in turn, are set forth in BOP's Program Statements (“PS”). See http:// www. bop. gov/ Data Source/ execute/ ds Policy Loc. The BOP policy at issue in the instant...