United States District Court, D. Oregon
BRYAN A. HAMPTON, Petitioner,
RICHARD IVES, WARDEN, Respondent.
FINDINGS AND RECOMMENDATION
Coffin United States Magistrate Judge.
an inmate at the Federal Correctional Institution (FCI) in
Sheridan, Oregon brings a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner argues that the
Bureau of Prisons (BOP) violated his statutory and due
process rights by denying him eligibility for early release.
For the reasons explained below, this Court lacks
jurisdiction to review the BOP's decision and the case
should be dismissed.
is currently incarcerated pursuant to a 190-month sentence
imposed after his convictions for attempted interference with
commerce by robbery and use of a firearm during a crime of
violence in violation of 18 U.S.C. § 1951 and §
924(c)(1)(A)(iii). Pet. at 1 (ECF No. 1). The sentencing
court recommended that petitioner participate in the
Residential Drug Abuse Program (RDAP). Generally,
participants who complete the RDAP may be eligible for a
sentence reduction of up to one year. 18 U.S.C. §
sentencing, petitioner alleges that he was mistakenly sent to
a Louisiana correctional facility and was not returned to
federal custody until August 2010. Pet. at 2. When petitioner
sought to enroll in RDAP, he was informed that he was
ineligible for a reduction in sentence because his conviction
qualified as a crime of violence under 28 C.F.R. §
55O.55(b)(5)(iii). Pet. at 2.
7, 2017, petitioner filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1).
Petitioner seeks judicial review of BOP's early release
determination and an order declaring him eligible for early
release upon successful completion of RDAP. Pet. at 6.
created the RDAP in response to a congressional directive
"to create programs to treat substance abuse among
inmates." Peck v. Thomas, 697 F.3d 767, 770
(9th Cir. 2012). "RDAP is an intensive drug treatment
program for federal inmates with documented substance abuse
problems... .Treatment is conducted in a unit set apart from
the general prison population and is followed by
institutional and/or community-based transitional
programs." Reeb v. Thomas, 636 F.3d 1224, 1225
(9th Cir. 2011) (citations omitted); see also 28
C.F.R. § 550.53 (describing components and criteria of
the RDAP). To encourage participation in substance abuse
programs such as the RDAP, a prisoner convicted of a
nonviolent offense "may be" eligible for a
reduction in sentence of up to one year after successfully
completing a treatment program. 18 U.S.C. §
3621(e)(2)(B); Peck, 697 F.3d at 770.
it is within BOP's discretion to determine eligibility
for RDAP and whether to "grant or deny eligible
prisoners sentence reductions upon successful
completion" of the RDAP. Reeb, 636 F.3d at
1226. Relevant BOP regulations provide that an inmate is
ineligible for early release under the RDAP if the inmate has
a "current felony conviction" for an "offense
that involved the carrying, possession, or use of a firearm
or other dangerous weapon" or an offense that presented
a "serious potential risk of physical force." 28
C.F.R. § 55O.55(b)(5)(ii), (iii).
to petitioner, the BOP found him ineligible for early release
under the RDAP because his offense of conviction was a crime
of violence. Petitioner contends that his offense -
"Hobbs Act robbery" - is not a crime of violence.
Pet. at 3. In other words, petitioner challenges the
BOP's individualized decision that he is not eligible for
early release. In Reeb, the Ninth Circuit held that
a district court lacked jurisdiction to review this exact
claim. It explained:
The BOP has authority to manage inmate drug treatment
programs, including RDAP, by virtue of 18 U.S.C. § 3621.
To find that prisoners can bring habeas petitions under 28
U.S.C. § 2241 to challenge the BOP's discretionary
determinations made pursuant to 18 U.S.C. § 3621 would
be inconsistent with the language of 18 U.S.C. § 3625.
Accordingly, any substantive decision by the BOP to admit
a particular prisoner into RDAP, or to grant or deny a
sentence reduction for completion of the program, is not
reviewable by the district court.
Reeb, 636 F.3d at 1227 (emphasis added).
"Although judicial review remains available for
allegations that BOP action is contrary to established
federal law, violates the United States Constitution, or
exceeds its statutory authority, " petitioner here
"alleges only that the BOP erred in his particular
case." Id. at 1228 (footnote omitted). As a
result, this Court lacks jurisdiction to review
petitioner's claim that the BOP erroneously deemed him
ineligible for early release.
nonetheless maintains that the Ninth Circuit's decision
in Arrington v. Daniels, 516 F.3d 1106 (9th Cir.
2008) supports his claim. In Arrington, the Ninth
Circuit invalidated former 28 C.F.R. § 55O.55(b)(5)(ii)
categorically excluding prisoners from early release if their
convictions involved firearms, finding that the BOP failed to
articulate a rational basis for the regulation. 516 F.3d at
1113-14. The BOP subsequently replaced the invalidated
regulation, and in Peck the Ninth Circuit upheld the
current version of 28 C.F.R. § 55O.55(b)(5)(ii).
Peck, 697 F.3d at 772-73. Consequently,
Arrington applies only to "inmates housed in
the Ninth Circuit and notified of their eligibility to
participate in RDAP prior to March 16, 2009, or to those who
had completed RDAP while housed in the Ninth Circuit prior to
March 16, 2009." Patton v. Feather, No.
3:13-cv-01308-AC, 2014 WL 3756132 at *3 (D. Or. July 29,
2014) (citation omitted).
own admission, petitioner was not housed in the Ninth Circuit
and did not become eligible for RDAP until after March 16,
2009. Petitioner maintains that he was mistakenly housed in a
Louisiana correctional facility until 2010 and unable to
obtain RDAP eligibility before March 16, 2009 through no
fault of his own, and BOP should find him eligible for RDAP.
However, the BOP considered this argument and declined to
make an exception to the deadlines requirement. Vickers Decl.
at Att. 2-3. Therefore, Arrington does not apply,
and this Court has no ...