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Arnett v. Williams

United States District Court, Ninth Circuit

October 31, 2013

TIMOTHY WAYNE ARNETT, Petitioner,
v.
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.

PROCEEDINGS

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.

BACKGROUND

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).[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.

PETITIONER'S ALLEGATIONS

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).[2] 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 ...


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