United States District Court, D. Oregon
THOMAS J. HESTER, Assistant Federal Defender, Portland, OR, Attorney for Petitioner.
S. AMANDA MARSHALL, United States Attorney, NATALIE WIGHT, Assistant United States Attorney, District of Oregon, Portland, OR, Attorneys for Respondent.
OPINION AND ORDER
JOHN V. ACOSTA, Magistrate Judge.
Petitioner, an inmate at FCI Sheridan, brings this habeas corpus action pursuantto 28 U.S.C. § 2241. The parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with 28 U.S.C. § 636(c). For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus (#2).
On February 12, 2007, Petitioner was sentenced to 27 months of imprisonment for felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On November 10, 2007, Petitioner requested an interview for placement in the Bureau of Prisons' ("BOP") Residential Drug Abuse Program ("RDAP"). On January 24, 2008, however, Petitioner reached his good conduct date and was released to a term of supervised release.
While on supervised release, Petitioner committed a new crime. On September 13, 2010, Petitioner was sentenced to a 69-month term of imprisonment for possession with intent to distribute methamphetamine, in violation of 18 U.S.C. § 841(a)(1). The court also revoked Petitioner's supervised release from his 2007 conviction, and sentenced him to an additional 15-month term, to be served consecutively to the 2010 sentence.
On October 12, 2012, Petitioner was interviewed for participation in RDAP at FCI Sheridan. After the interview, a request was sent to the BOP Designation and Sentence Computation Center ("DSCC") to determine Petitioner's eligibility for early release pursuant to 28 U.S.C. § 3621(e). On October 5, 2012, DSCC legal staff determined that both of Petitioner's current offenses precluded early release eligibility because they "involved the carrying, possession, or use of a firearm or other dangerous weapon" under 28 C.F.R. § 550.55(b)(5)(ii), and each offense "by its nature or conduct, presents a serious potential risk of physical force against the person or property of another" under 28 C.F.R. § 550.55(b)(5)(iii).
Petitioner filed a Request for Administrative Remedy challenging his early release eligibility determination, which was denied. Petitioner's Administrative Remedy Appeal to the Regional level was also denied. Petitioner's Administrative Remedy Appeal remains pending.
On July 30, 2013, Petitioner filed his pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this court. Petitioner alleges four grounds for relief:
Ground One: The respondent has violated the Administrative Procedures Act Title 5 U.S.C. § 706 (2)(A) et seq., which provides that a reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, [capricious] and abuse of discretion or otherwise not in accordance with law. The respondent, and F.B.O.P. are arbitrarily applying 28 C.F.R. § 550.58(a)(vi)(B) and F.B.O.P. PS-5162.04, sec. 7.d.
Ground Two: The respondent is capricious when applying its own internal policy under PS-5162.04, Sec 7.d by declaring petitioner ineligible for Early Release. A clear error in judgment has been made in determining petitioner's Early Release eligibility pursuant to 18 U.S.C. § 3621(e)(2)(B).
Ground Three: Petitioner is being denied Early Release Eligibility pursuant to 18 U.S.C. § 3621 (e)(2)(B) in violation of the Equal Protection Clause of the 14th Amendment.
Ground Four: The respondent is denying petitioner Early Release Eligibility in violation of the U.S.C.A. for the Ninth Circuit's holding in Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) that the B.O.P. must consider for Early Release as non-violent offenders those convictions under 21 U.S.C. § 841, ...