Ward v. Booker

• Decision Date: 12 February 1999
• Docket Number: No. 98-3274-RDR.,98-3274-RDR.
• Citation: 38 F.Supp.2d 1258
• Parties: James WARD, Petitioner, v. J.W. BOOKER, Respondent.
• Court: U.S. District Court — District of Kansas

38 F.Supp.2d 1258

James WARD, Petitioner, v. J.W. BOOKER, Respondent.

No. 98-3274-RDR.

United States District Court, D. Kansas.

February 12, 1999.

James Ward, Leavenworth, Leavenworth, KS, pro se.

Mary K. Ramirez, Office of United States Attorney, Topeka, KS, for J.W. Booker, Warden, respondent.

MEMORANDUM AND ORDER

ROGERS, Senior District Judge.

This is a petition for writ of habeas corpus, 28 U.S.C. § 2241, filed by an inmate of the Federal Prison Camp, Leavenworth, Kansas. The issue to be resolved is whether Ward, who was convicted of a nonviolent drug offense but had his sentence enhanced for possession of a firearm, was legally deemed by the Director of the Bureau of Prisons to be ineligible to receive the sentence reduction made available under 18 U.S.C. § 3621(e)(2)(B) to prisoners convicted of "nonviolent offenses."

An Order to Show Cause issued. Respondents filed a Motion to Dismiss alleging failure to exhaust administrative remedies, and petitioner filed a reply brief. Having considered all the pleadings and attachments filed, together with the relevant authorities, the court makes the following findings and order.

FACTS

The facts are not in dispute. Petitioner was sentenced to a term of seventy months imprisonment for possession with intent to distribute and distribution of heroin, violations of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the district court applied a two-level guideline enhancement of his offense. Ward alleges that the enhancement was based upon "constructive" weapons possession because accessible weapons were found in a safe during a search of his co-defendant's "personal sleeping room."

During his incarceration on April 2, 1998, Ward began participation in a "Comprehensive Drug Abuse Treatment Program" (DATP) and successfully completed the residential phase on December 14, 1998. Petitioner has repeatedly sought a one-year reduction in his sentence from the Bureau of Prisons (BOP). The BOP as early as 1996 found Ward "ineligible" for the reduction¹. A "Notification of Instant Offense Determination" setting forth whether or not Ward was eligible for early release and the rationale should have been issued in 1996 assuming the BOP complied with its own Program Statement 5330.10, paragraph 6.2.3. It appears from the program statement that completion of this document, [Attachment J to P.S. 5330.10, CN-01 (May 17, 1996) & CN-03 (October 9, 1997)], is required as to each inmate applying to participate in a drug rehabilitation program and is not generated only upon a request from the inmate. Paragraph 6.3.1 indicates that inmates on the waiting list to enter the drug program on the effective date of the amended program statements had their instant offense reviewed pursuant to the new "Categorization of Offenses" program statement.

In any case, petitioner's administrative relief requests submitted in 1996 as well as the agency's responses to those requests clearly indicate that Ward was denied the sentence reduction on the basis that his current offense was deemed a "crime of violence" pursuant to Program Statement 5162.02, Definition of Term, "Crimes of Violence". At the informal resolution level, Ward's administrative remedy request was denied by the correctional counselor on the basis that:

Pursuant to P.S. 5162.02 a person charged with 21-841(a)(1) with a 2 point enhancement for weapons is not eligible for the one year reduction.

His BP-9 was denied by the Warden who found him ineligible because his crime was:

considered a crime of violence by P.S. 5162.02, CN-01, Definition of Term, "Crimes of Violence". This determination is based on policy language contained in Section 9, pages 6 and 7.

* * * * * *

A review of your PSI reveals you received a two-level enhancement for possession of firearms.

Ward appealed the Warden's decision by way of a BP-10 and BP-11. His administrative appeals were denied for the general reason that under P.S. 5162.02, his offense was deemed to be a "crime of violence" due to the two-level sentencing enhancement for possession of firearms. Ward's mandatory release date is "March, 2000," and he alleges, albeit without stating supporting facts, that he would be entitled to immediate release if he were to receive the sentence reduction.

CLAIMS

Petitioner challenges the decision of the Bureau of Prisons as contrary to and in excess of the plain statutory language of 18 U.S.C. § 3621(e)(2)(B); and invalid under the recent opinion of the Tenth Circuit Court of Appeals in Fristoe v. Thompson, 144 F.3d 627 (1998) and other cases.

JUDICIAL REVIEW

A threshold consideration is whether or not this court has jurisdiction. The Administrative Procedure Act's provisions for judicial review of agency action are expressly made inapplicable by 18 U.S.C § 3625 to the BOP's decisions regarding sentence reduction under § 3621(e). See e.g., LaSorsa v. Spears, 2 F.Supp.2d 550, 558 (S.D.N.Y.1998); Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.1998); Davis v. Beeler, 966 F.Supp. 483, 489 (E.D.Ky. 1997). However, the Tenth Circuit has stated that while § 3625 may preclude the courts from reviewing the BOP's substantive decisions in these cases, it does not prevent the court from interpreting the statute to determine whether the BOP exceeded its statutory authority or violated the Constitution. See Fristoe, 144 F.3d at 630-31; Crawford v. Booker, 156 F.3d 1243, 1998 WL 567963, **1, FN3 (10th Cir.1998) (unpublished); see also Martin, 133 F.3d at 1076. Moreover, through habeas corpus this court may inquire into the legality under federal law of a prisoner's detention. See e.g., Downey v. Crabtree, 100 F.3d 662, 664 (9th Cir.1996); Roussos v. Menifee, 122 F.3d 159, 161, FN3 (3d Cir.1997) (district court jurisdiction under § 2241 and 28 U.S.C. § 1331); see also, Fuller v. Moore, 133 F.3d 914 (4th Cir. 1997, unpublished, per curiam, Table); Venegas v. Henman, 126 F.3d 760, 761 (5th Cir.1997), cert.denied, ___ U.S. ___, 118 S.Ct. 1679, 140 L.Ed.2d 817 (1998); Orr v. Hawk, 156 F.3d 651 (6th Cir.1998); Pearson v. Helman, 103 F.3d 133 (7th Cir.1996, unpublished); Sesler v. Pitzer, 110 F.3d 569 (8th Cir.) cert.denied, ___ U.S. ___, 118 S.Ct. 197, 139 L.Ed.2d 135 (1997); Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir.1998); LaSorsa, 2 F.Supp.2d at 559. In each of the cited cases the BOP's interpretation of eligibility for sentence reduction under § 3621 was reviewed in a habeas corpus context.

The issues presented are purely legal. Consequently, an evidentiary hearing is not necessary.

MOTION TO DISMISS — EXHAUSTION

Instead of filing an Answer and Return in response to the Order to Show Cause issued in this case, respondent filed a Motion to Dismiss asserting that this action should be dismissed on account of Ward's alleged failure to exhaust administrative remedies. The court finds that petitioner has fully exhausted administrative remedies by raising his claims of the wrongful denial of eligibility for early release under 18 U.S.C. § 3621(e)(2)(B) based upon sentence enhancements at each and every level of the BOP's administrative remedy process. The fact that the BOP denied his request citing P.S. 5162.02 and subsequently amended that program statement did not put a burden upon Ward to repeat the administrative process making the same claims but citing the amended program statement. This is so because the BOP did not change its policy as to sentence enhancements in its amended program statement. As will be more fully explained herein, the amended program statement contains the same paragraph and example as P.S. 5162.02 on which Ward's ineligibility was based, and this court has no doubt whatsoever that the BOP would reach the same result under the amended version. To require Ward to repeat the administrative process under such circumstances would be futile.

ENABLING STATUTE — VCCLEA

The court begins by considering the statute which petitioner claims entitles him to early release, 18 U.S.C. § 3621(e)(2). As part of the Crime Control Act of 1990, Congress required 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). A few years later, to provide a new incentive to federal prisoners to enroll in and complete the BOP's drug treatment programs, Congress authorized the Bureau under § 3621(e)(2)(B) of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), to reduce the sentences of eligible prisoners who completed a drug treatment program. The VCCLEA, promulgated in November, 1994, provides in pertinent part:

(2) Incentive for prisoners' successful completion of treatment program. —

(A) Generally. — Any prisoner who, in the judgment of the Director of the [BOP], has successfully completed a program of residential substance abuse treatment ..., shall remain in the custody of the [BOP] under such conditions as the [BOP] deems appropriate....

(B) Period of custody. — The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the [BOP], 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). On its face, the statute unambiguously precludes the early release of prisoners convicted of violent offenses and limits reduction to one year or less for other prisoners having completed a drug abuse treatment program. See LaSorsa, 2 F.Supp.2d at 554.

BOP REGULATIONS AND PROGRAM STATEMENTS

Congress defined several terms in § 3621(e), but did not define "nonviolent offense." Nor does the statute specify criteria for awarding a reduction. Byrd, 142 F.3d at 1396; see also Fristoe, 144 F.3d at 631; Martin, 133 F.3d at 1078. On account of these gaps in the statute, and because the legislative history² of the statute left to the Bureau of Prisons the discretion to implement the program, the...