Petitioner is a federal prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2241. He alleges that the federal Bureau of Prisons (BOP) has refused to consider him for its substance abuse/early release program solely because of his commitment offense, which he argues is arbitrary and capricious. Respondent has filed a motion to dismiss, alleging that the action is not ripe and that petitioner lacks standing. Both parties have consented to magistrate judge jurisdiction.
In 2003, petitioner was convicted of conspiring to possess methamphetamine, cocaine and ecstasy with the intent to distribute and/or manufacture and to distribute the drugs, in violation of 21 U.S.C. §§ 846 & 841(a)(1), and of using a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). He was sentenced to a total term of 180 months. Motion to Dismiss (MTD), Ex. 1; United States v. Kevin Corbett McClure, 1:02CR00079-02 (District of Idaho), Docket No. 844 (judgment).*fn1 His projected release date is April 21, 2015. MTD, Ex. 1.*fn2
On April 14, 2008, petitioner submitted an "Inmate Request To Staff," asking for "re-assessment of my eligibility for early release for successful completion of RDAP [Residential Drug Abuse Program]." Pet. at 14.*fn3 BOP personnel replied that his request to participate in RDAP would be forwarded to the Drug Treatment Specialist and that the "application will include a file review consistent with the standards for early release eligibility outlined in Arrington."*fn4 Id. At the bottom of the form, the "DTS" [Drug Treatment Specialist] wrote "please reapply for RDAP when you become 36 months from your release date." Id. Petitioner alleges, however, that he was told he would not be eligible for early release because of his firearm conviction. Id. at 6.
Petitioner pursued administrative remedies. On June 13, 2008, respondent replied:
According to Program Statement 5162.04, Categorization of Offenses, Page 3, "Other policies or programs, such as early release pursuant to 18 U.S.C. 3621(e), indicate that an inmate could be denied the benefits of such program if he or she was convicted of an offense listed in either Section 6 or 7." Arrington invalidated one of the Bureau's federal regulations prescribing the criteria for the RDAP early release eligibility, specifically 28 CFR 550.58 (a)( vi) (B) (2000). That regulation requires that inmates whose current offense 'involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives" not be eligible for RDAP early release. The violation of 18 USC 924(c), is included in Section 6 on page 4 of Program Statement 5162.04, as a crime of violence in all cases. Staff decision-making per Program Statement 5162.04, Section 6, was not addressed in Arrington and remains unchanged. As a result, an inmate who is denied RDAP early release eligibility under Section 6 remains ineligible for reasons unrelated to Arrington.
Petitioner appealed this determination. The Regional Director of BOP responded, in pertinent part:
In order to be considered for an 18 U.S.C. § 3621(e) early release, you must first be determined as qualified for the RDAP. That decision has not yet been made. Thus, at this time any official determination of your provisional eligibility for 18 U.S.C. § 3621(e) early release would be premature.
Bureau of Prisons staff have suggested that you would not be eligible for 18 U.S.C. § 3621(e) early release consideration pending successful completion of the RDAP, based on your instant offense. However, this determination cannot be considered official until completion of the Eligibility Interview.
Under 18 U.S.C. § 3621(b), BOP "shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Under § 3621(e)(1)(C), BOP must provide residential substance abuse treatment for prisoners "based on an eligible prisoner's proximity to release date." To encourage inmates to enroll in drug treatment, the statute also provides that "[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the ...