October 31, 2013
TIMOTHY WAYNE ARNETT, Petitioner,
CHARLES WILLIAMS, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On July 18, 2013, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in Federal Custody (28 U.S.C. § 2241), " accompanied by a "Memorandum of Points and Authorities in Support of Writ of Habeas Corpus" ("Pet. Mem."). Petitioner is a federal prisoner serving a 300-month sentence in the custody of the United States Bureau of Prisons ("BOP") (Petition, p. 2). Petitioner originally was found guilty of armed bank robbery and the use of a firearm during a crime of violence (Petition, p. 2). In 2003, the United States Court of Appeals for the Ninth Circuit reversed Petitioner's conviction for using a firearm, but otherwise affirmed the judgment. See United States v. Arnett , 353 F.3d 765 (9th Cir. 2003), cert. denied, 541 U.S. 1091 (2004).
Petitioner contends the BOP wrongfully denied Petitioner "early release eligibility under 18 U.S.C. § 3621(e)(2)(B)" by refusing to allow Petitioner to participate in the BOP's "Residential Drug Abuse Program" ("RDAP") (Petition, p. 3; Pet. Mem., p. 2). On August 15, 2013, Respondent filed a Return, asserting that the Court lacks subject matter jurisdiction over the Petition. On September 25, 2013, Petitioner filed a Reply, accompanied by Petitioner's Declaration and exhibits.
As explained by the Ninth Circuit:
Congress has outlined the terms of federal imprisonment in 18 U.S.C. § 3621. In 1990, the statute was amended to direct the Bureau to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Pub.L. 101-647, § 2903, 104 Stat. 4789, 4913 (1990) (codified at 18 U.S.C. § 3621(b)).
The Violent Crime Control and Law Enforcement Act of 1994 also partially amended 18 U.S.C. § 3621. Under this revision, eligible prisoners are able to participate in substance abuse programming and treatment available while incarcerated in federal institutions. Pub.L. No. 103-322, § 32001, 108 Stat. 1796, 1896-97 (1994) (codified at 18 U.S.C. § 3621(b)(5), (e)). An inmate may be "eligible" for a program such as the RDAP if he is (1) "determined by the Bureau of Prisons to have a substance abuse problem, " and (2) "willing to participate in a residential substance abuse treatment program." 18 U.S.C. § 3621(e)(5)(B). As "an incentive... to draw into treatment many inmates who may otherwise not be willing to undergo a difficult and painful treatment program, " Congress allowed for a potential one-year sentence reduction upon successful completion of the RDAP. H.R.Rep. No. 103-320, at 5 (1993); 18 U.S.C. § 3621(e)(2)(A), (B).
Mora-Meraz v. Thomas , 601 F.3d 933, 935-36 (9th Cir. 2010) (footnote omitted).
To complete the RDAP successfully, an inmate must fulfill three program components: (1) a "unit-based" component consisting of a course of activities prescribed by the Drug Abuse Program Coordinator ("DAPC") and drug abuse treatment specialists in a separate treatment unit, which must last at least six months; (2) follow-up services if time permits; and (3) transitional drug abuse treatment in a community based program. 28 C.F.R. § 550.53(a). To be eligible for admission to the RDAP, an inmate must: (1) have a verifiable substance abuse disorder; (2) sign an agreement acknowledging program responsibility; and (3) at the time of commencement of the program, be able to meet all three components of the program. 28 C.F.R. § 550.53(b). Unit or drug treatment staff identifies an inmate for referral and evaluation for RDAP. 28 C.F.R. § 550.53(d); see also BOP Program Statement 5330.11, § 2.5.8(d)(1). Additionally, an inmate may apply for admission to the RDAP by submitting a request to a staff member, normally the DAPC. 28 C.F.R. § 550.53(c); BOP Program Statement 5330.11, § 2.5.8(d)(1). A drug treatment specialist conducts a screening to determine, among other things, whether there is adequate documentation to verify the inmate's pattern of substance abuse or dependence. BOP Program Statement 5330.11, § 2.5.8(d)(2). Following screening, the DAPC conducts a personal interview of the inmate. BOP Program Statement 5330.11, § 2.5.9. Interviews are conducted "based on the inmate's proximity to release, ordinarily no less than 24 months from release." Id . The DAPC determines whether to admit the inmate to the RDAP. 28 C.F.R. § 550.53(d); BOP Program Statement 5330.11, § 2.5.9.
Certain inmates who complete the RDAP may qualify for early release under 18 U.S.C. section 3621(e)(2). 28 C.F.R. § 550.55(a). However, the BOP categorically excludes certain inmates from early release. See 28 C.F.R. § 550.55(b). On February 20, 2008, the Ninth Circuit decided Arrington v. Daniels , 516 F.3d 1106 (9th Cir. 2008) ("Arrington"). The Arrington decision invalidated a BOP regulation categorically excluding from eligibility for early release prisoners convicted of offenses involving the carrying, possession or use of a firearm. Arrington at 1114. This invalidation resulted from the BOP's previous failure to have set forth a rationale for the regulation in the administrative record, in violation of the Administrative Procedures Act, 5 U.S.C. section 706 ("APA"). Id . Thereafter, the BOP enacted an identical regulation, 28 C.F.R. section 550.55, effective March 16, 2009, while setting forth a rationale for the regulation in the administrative record. In Peck v. Thomas , 697 F.3d 767 (9th Cir. 2012), cert. denied, 133 S.Ct. 1289 (2013), the Ninth Circuit held that this 2009 regulation was valid under the APA.
In 2000 and 2002, Petitioner's case manager allegedly advised Petitioner that Petitioner was eligible for participation in the BOP's "Challenge, Opportunity, Discipline and Ethics" ("CODE") Program (Pet. Mem., pp. 1-1, 6). Although Petitioner allegedly signed an agreement to participate in the CODE Program, the institution at which Petitioner then was incarcerated assertedly did not offer a CODE Program (id., p. 3; Declaration of Timothy Wayne Arnett attached to Reply ["Petitioner's Dec."], ¶ 3 & Ex. I).
From 1998 through 2003, Petitioner allegedly was pursuing his appeal pro se (Pet. Mem., p. 3). During this period of time, Petitioner assertedly did not want to transfer to a prison offering a CODE Program (Petitioner's Dec., ¶ 2). Following the Ninth Circuit's decision in United States v. Arnett, supra , Petitioner allegedly agreed to a reduced sentence, which led to his current placement at a low security level institution which offers an RDAP (Pet. Mem., p. 3). Petitioner's projected release date assertedly is August 1, 2017 (Pet. Mem., p. 7).
Prior to the Arrington decision, Petitioner's firearm use conviction and projected release date rendered Petitioner ineligible for RDAP placement and a one-year reduction in sentence (Pet. Mem., p. 4). After the Arrington decision, federal prisons in the Ninth Circuit allegedly posted a notice informing inmates that inmates could request reassessment for an RDAP placement if they: (1) had requested an RDAP interview prior to February 20, 2008 (the date of the Arrington decision); (2) were currently housed in an institution in the Ninth Circuit; and (3) had been determined to meet the qualifications for RDAP participation (Pet. Mem., p. 4 & Ex. E). Petitioner contends his case manager's prior determinations in 2000 and 2002 that Petitioner assertedly was eligible for the CODE Program and Petitioner's alleged agreements to participate in the CODE Program were the "equivalent" of a pre-Arrington request to participate in an RDAP (id., pp. 2, 6).
On October 11, 2012, Petitioner asked the institution DAPC to submit a "Request for § 3621(e) Offense [Review] form" to the BOP Designation and Sentence Classification Center, to determine if Petitioner was eligible for a sentence reduction (id., pp. 6-7). Allegedly contrary to BOP policy, the DAPC assertedly refused the request on the ground that Petitioner was not within 24 months of release from prison (id., p. 7). Petitioner allegedly explained that he was presenting his request at that time because his argument was "a legal one of first impression" that could take time for a court to decide (id.). Petitioner allegedly asserted that waiting until he was within 24 months of release could deny him meaningful access to the courts (id.). The program coordinator allegedly still refused to cooperate (id.).
Petitioner's exhibits include the following:
1. A "Program Review Report, " dated May 4, 2000, and signed by Petitioner and his unit manager, describing Petitioner's "long term goals" as including enrollment in the CODE Program by May 2004 "to develop pro-social skills and behavior"; and
2. A "Program Review Report, " signed by Petitioner and his unit manager on November 8, 2002, stating that the team recommended, among other things, that Petitioner enroll in the CODE Program by September of 2003 "to address/modify negative behaviors, " and describing Petitioner's "long terms goals" as including completion of the CODE Program by February 2004 "to address/modify negative behaviors"
(Pet. Mem., Exs. C, D).
PETITIONER'S ADMINISTRATIVE APPEAL
On October 27, 2012, Petitioner submitted a "Request for Administrative Remedy, " claiming that he qualified for admission to the RDAP, and arguing that because the CODE Program assertedly was the "functional equivalent" of the RDAP Program, Petitioner's prior recommendation for and acquiescence in a CODE Program placement allegedly should be considered as a request for RDAP placement (Exhibit D to Declaration of Sarah Schuh attached to Return, first and second pages). On November 21, 2012, the Warden denied the request, stating that the CODE Program was not the equivalent of the RDAP Program, and that therefore a request for a CODE Program placement was not the same as a request for an RDAP placement (Exhibit D to Declaration of Sarah Schuh attached to Return, third page). The Warden also advised Petitioner that requests for RDAP evaluations were prioritized by proximity to release within 24 months, and that Petitioner's request would be processed in accordance with policy (id.).
The BOP Regional Director rejected Petitioner's appeal on January 2, 2013, stating that, because Petitioner's request for RDAP placement (on November 16, 2009) occurred after March 16, 2009, the Arrington decision did not apply to Petitioner (Exhibit D to Declaration of Sarah Schuh attached to Return, fifth and sixth pages). The Regional Director also stated that the 2000 and 2002 CODE Program recommendations did not refer to any substance abuse problems and hence did not document any request to participate in RDAP (id.). The Regional Director further denied Petitioner's request for a "legal review" as premature, because Petitioner had not yet received an RDAP eligibility interview or a determination that Petitioner was qualified to participate in the RDAP (id.). The Regional Director advised Petitioner that, to initiate the eligibility review process, Petitioner should submit an "Inmate Request to a Staff Member" to the DAPC at his institution (id.). The BOP Office of General Counsel received Petitioner's final appeal on January 22, 2013 (Schuh Dec., ¶ 6). That appeal, which is not in the record, reportedly is still pending (Schuh Dec., ¶ 6).
Petitioner contends that the BOP erred by refusing to equate Petitioner's 2000 and 2002 CODE Program recommendations and agreements with a proper request to participate in the RDAP Program (Pet. Mem., pp. 7-8). Petitioner further contends that the BOP's alleged refusal to declare Petitioner's future eligibility for early release upon successful completion of the RDAP Program was "arbitrary, capricious and discriminatory" (id.). Petitioner requests habeas relief in the form of an order deeming Petitioner eligible for early release "in the event he successfully completes RDAP" (id., p. 8).
A federal habeas court lacks jurisdiction to review the BOP's individualized RDAP determinations. See Reeb v. Thomas , 636 F.3d 1224, 1227-28 (9th Cir. 2011). The BOP's determination that Petitioner's 2000 and 2002 CODE Program recommendations and agreements did not equate to a proper request to participate in the RDAP Program constitutes the sort of individualized RDAP determination over which this Court lacks jurisdiction. See id. ("[the petitioner's] claim that he was wrongfully expelled from RDAP, as well as his request for reinstatement and for a twelve-month reduction in his sentence, are matters properly left to the BOP's discretion.") (citation omitted). Any contention that the BOP misapplied its own Program Statements is unavailing, for "[a] habeas claim cannot be sustained based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law." Id .; see also Sun v. Ashcroft , 370 F.3d 932, 937 (9th Cir. 2004) ("[t]he general habeas statute, 28 U.S.C. § 2241, limits claims to those that allege violations of the constitution, federal statute, or treaties") (citation and internal quotations omitted); Alvarez v. Sanders, 2013 WL 511038, at *3 (C.D. Cal. Jan. 7, 2013), adopted, 2013 WL 511036 (C.D. Cal. Feb. 8, 2013) (under Reeb v. Thomas , federal habeas lacked jurisdiction to review BOP's decision that inmate who had completed RDAP program was ineligible for early release, and also lacked jurisdiction to review BOP's decision not to make an exception for petitioner).
Furthermore, this Court lacks jurisdiction to grant the prospective, conditional relief requested by Petitioner. "The Constitution limits the jurisdiction of the federal courts to live cases and controversies, and as such, federal courts may not issue advisory opinions." Kittel v. Thomas , 620 F.3d 949, 951 (9th Cir. 2010) (citations omitted). "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States , 523 U.S. 296, 300 (1998) (citations and internal quotations omitted). Because the BOP has not yet determined Petitioner's eligibility for RDAP, much less his eligibility for early release, there is no "live controversy" over which this Court could take jurisdiction. See Kittel v. Thomas , 620 F.3d at 951 (declining to issue "protective ruling" regarding the applicability of Arrington to support inmate's future application for a reduction in his term of supervised release); Steffensen v. Ives, 2011 WL 4710798, at *2 (E.D. Cal. Oct. 4, 2011) (where BOP had not refused inmate entry into RDAP, inmate's challenge to anticipated future BOP decision unripe); see also Quan v. U.S. Bureau of Prisons, 402 Fed.App'x 181, 183 (9th Cir. 2010) (claim that BOP was required to consider placing inmate in halfway house for last 10% of his sentence presented no justiciable controversy, where inmate was not yet serving the last 10% of his sentence); McClure v. Ives, 2010 WL 716193, at *4 (E.D. Cal. Feb. 26, 2010) (where RDAP eligibility determination had not yet occurred and would not occur until closer to petitioner's release date, claim that petitioner was entitled to early release was unripe); Pomar v. Warden, Federal Satellite Low, 2009 WL 3781039, at *2 (S.D. Ga. Nov. 10, 2009) (where BOP had provisionally determined that petitioner was ineligible for early release, but petitioner had not yet completed RDAP, claim was not ripe; petitioner was "in a position identical to every other inmate participating in the RDAP in that a final decision as to his eligibility for early release will be determined if and when he completes the program") (original emphasis).
For the reasons discussed below, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.