The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT [Doc. 1]
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.
In the instant petition, Petitioner contends that the Bureau of Prisons (BOP) staff arbitrarily and capriciously abused its discretion by forcing him to identify a release residence which he claims prevented him from being considered for designation to a Residential Re-entry Center (RRC) for a period of twelve months. He also claims that he was denied skills development programming pursuant to the Second Chance Act and he was never considered for RRC placement. Petitioner also raises various challenges regarding his ability to participate in programming within the BOP.
Respondent filed an answer on December 17, 2009. (Court Doc. 15.) Petitioner did not file a traverse. On March 8, 2010, Respondent submitted a supplement to the answer. (Court Doc. 19.)
I. Subject Matter Jurisdiction and Venue
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Whether the Court has subject matter to hear Petitioner's claims pursuant to 28 U.S.C. § 2241 will be discussed below. In addition, pursuant to § 2241, venue is proper in this case because Petitioner was confined at the United States Penitentiary in Atwater, California, at the time he filed the instant petition. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.2000).
Petitioner first argues that the BOP has abused its discretion by forcing him to use a relocation address for release which prevents him from being considered for RRC placement for twelve months. Petitioner further contends that he has never been considered for RRC placement. On April 9, 2008, the President signed into law the "Second Chance Act of 2007," which required the BOP to modify 28 C.F.R. section 570.21 of the regulations (see 18 U.S.C. § 3624(c)(6), to ensure that the determination as to placement in an RRC be conducted in accordance with 18 U.S.C. 3621(b) and it be determined on an individual basis,. Pub.L. 110-199, 122 Stat. 657 (2007).
In Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008), the Ninth Circuit held that the former 28 C.F.R. section 570.21 was invalid as inconsistent with 18 U.S.C. section 3621(b). The regulations were later amended and now state, "Inmates may be designated to community confinement as a condition of pre-release custody and programming during the final months of the inmate's term of imprisonment, not to exceed twelve months." Inmates are considered for pre-release community confinement "in a manner consistent with 18 U.S.C. section 3621(b), determined on an individual basis, and of sufficient duration to provide the greatest likelihood of successful reintegration into the community, within the time frames set forth in this part." 18 C.F.R. § 570.22.
In sum, the BOP has discretionary authority to transfer an inmate to an RRC at any time, after considering the factors set forth in 18 U.S.C. section 3621(b), and has a separate and distinct obligation to consider an inmate for transfer to an RRC for up to twelve months prior to the inmate's release date, after considering the factors set forth in section 3621(b). Rodriguez v. Smith, 541 F.3d at 1184-1185.
The response by Harrell Watts, Administrator National Inmate Appeals (dated April 28, 2009), to Petitioner's administrative grievance recognizes the amendments to the regulations set forth in the Second Change Act of 2007. (Petition, at 17*fn1 .) Mr. Watts sets forth the applicable law regarding placement in an RRC, and states "[i]nmates are ordinarily considered for RRC placement between 17 and 19 months prior to release. Your [Petitioner] projected release date is December 25, 2010, and you will be reviewed for RRC placement within the next few months." (Id.)
Petitioner contends his rights were violated under section 3621(b) because he "has never been considered for RRC placement, throughout his term of imprisonment." (Petition, at 3.) There is no entitlement to an immediate consideration for placement to an RRC, as it within the discretion of the BOP. To this end, Petitioner attaches a response by Correctional Counselor Blackwell indicates that it has been determined that 180 days is sufficient time to accommodate Petitioner's release needs, and he will be further evaluated 17 to 19 months prior to his release date. Respondent has submitted evidence that Petitioner was again evaluated for RRC placement on January 29, 2010, and Petitioner was ...