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Turner v. Fox

United States District Court, C.D. California

June 15, 2015

ROBERT TURNER, Petitioner,
JACK FOX, Warden, Respondent.


KENLY KIYA KATO, District Judge.

On March 17, 2015, Petitioner Robert Turner ("Petitioner"), a federal prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody ("Petition") in this Court, pursuant to 28 U.S.C. § 2241. In the Petition, Petitioner appears to challenge the federal Bureau of Prisons' ("BOP") designation of the place of his imprisonment. Respondent Jack Fox has filed a Response to the Petition, requesting it be dismissed for lack of jurisdiction. For the reasons set forth below, the Court dismisses the Petition with leave to amend.



On March 17, 2015, Petitioner filed the instant Petition. (ECF Docket No. ("dkt.") 1). According to the Petition, Petitioner was convicted of conspiracy to distribute a controlled substance and was sentenced to 135 months in prison in May 2011. Pet. at 2.[1] While not entirely clear, the Petition appears to challenge the BOP's designation of Petitioner's place of imprisonment. Id. at 3-4. The Petition claims the BOP has exceeded its statutory authority when designating the place of his imprisonment under 18 U.S.C. § 3621(b)(2), on two grounds. Id . First, Petitioner claims the BOP has not properly considered the nature and circumstances of Petitioner's offense and has misapplied the scoring system by which it classifies the severity of an inmate's offense.[2] Id. at 3. Second, the Petition claims the BOP "is failing to review all documents ([i.e.] PSI, U.S. Sentencing Guidelines Manual and BOP Policy Statement)[, ] which [are] necessary to make the appropriate and suitable considerations for placement of" Petitioner." Id . The BOP's failure to review these documents, Petitioner claims, is "inconsistent with the statutory authority in 18 U.S.C. § 3621(b)(2)." Id.

On May 4, 2015, Respondent filed a Response to the Petition, requesting the Petition be dismissed because this Court lacks jurisdiction over the Petition's claims. (Dkt. 5). Petitioner has failed to file a timely Reply to Respondent's Response. The matter thus stands submitted and ready for decision.



A. The BOP's Inmate Placement System

The BOP has the authority to designate the location of an inmate's imprisonment. Specifically, under 18 U.S.C. § 3621(b), the BOP has discretion to place an inmate in an available penal or correctional facility and to direct the transfer of an inmate "at any time." Rodriguez v. Smith, 541 F.3d 1180, 1182, 1185 (9th Cir. 2008). When determining which facility is suitable, the BOP must consider the following five factors: (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence-(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28. 18 U.S.C. § 3621(b). In other words, Section 3621(b) mandates that the BOP make an individualized assessment under the five statutory criteria when making transfer or placement determinations. Rodriguez, 541 F.3d at 1188.

The BOP has created a comprehensive scoring system for classifying and designating inmates, pursuant to 18 U.S.C. § 3621(b). This system is set forth in BOP Program Statement 5100.08, Inmate Security Designation and Custody Classification (2006) ("Program Statement 5100.08"). Under this system, the BOP assigns each inmate a security score. Id., Ch. 1 at 2. The security score determines the security level of the facility in which the inmate will be placed. Id . Factors included in the point system include whether the inmate voluntarily surrendered, criminal history, history of violence, escape history, detainer status, age, education level, drug and alcohol abuse, and the severity of the conviction offense. Id., Ch. 4 at 6-15. With respect to determining the points to be assessed for the severity of the conviction offense, the BOP assigns a score ranging from 0 (lowest) to 7 (greatest) using an "Offense Severity Scale." Id., Ch. 4 at 7 (citing Appendix A of Program Statement 5100.08).

B. Federal Habeas Jurisdiction Over BOP Determinations

Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that his custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). A federal prisoner challenging the manner, location, or conditions of the execution of a sentence, as Petitioner does here, must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000); see also Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008).

The Ninth Circuit has explicitly held federal district courts lack jurisdiction over Section 2241 habeas petitions challenging individualized determinations within the discretion of the BOP. In Reeb v. Thomas, 636 F.3d 1224 (9th Cir. 2010), a federal prisoner brought a claim pursuant to 28 U.S.C. § 2241 alleging the BOP had abused its discretion in expelling him from a residential drug abuse program ("RDAP"). Reeb, 636 F.3d at 1226. The petitioner sought re-admission into the RDAP and a twelve-month reduction in his sentence upon successful completion of the program. Id . The Court held that 18 U.S.C. § 3625 precludes judicial review of discretionary, individualized RDAP determinations made by the BOP pursuant to 18 U.S.C. § 3621, which provides the BOP discretion to determine RDAP eligibility and entitlement to sentence reductions for program participation. Id. at 1225. The Court based its decision on provisions of the Administrative Procedure Act ("APA") that provided a cause of action for persons suffering legal wrong or adverse effect from agency action, but which withdrew the cause of action to the extent that the pertinent statute "preclude[s] judicial review." Id. at 1226; see also 5 U.S.C. §§ 702, 701(a). The Court noted "[t]he plain language of [18 U.S.C. § 3625] specifies that the judicial review provisions of the APA, 5 U.S.C. §§ 701-706, do not apply to any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624." Id. at 1227 (quoting 18 U.S.C. § 3625). Hence, the Court ...

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