United States District Court, N.D. California
ORDER TO SHOW; DENYING REQUEST FOR JUDICIAL
JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE
a federal prisoner, filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2241. She has paid the filing fee.
Because the petition, when liberally construed, states a
claim that may warrant federal habeas relief, Respondent is
ordered to show cause why it should not be granted.
Standard of Review
district court may entertain a petition for a writ of habeas
corpus challenging the execution of a federal sentence only
on the ground that the sentence is being executed "in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2241(c)(3); United
States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984).
The Court should "award the writ or issue an order
directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto." 28 U.S.C. § 2243.
claims that she is entitled to placement in a halfway house
because she has completed the Federal Bureau of Prisons
Residential Drug Abuse Program (“RDAP”). The
Bureau of Prisons (“BOP”) is required to provide
every federal prisoner with a substance abuse problem the
opportunity to participate in a treatment program while in
custody. See 18 U.S.C. § 3621(b), (e). In order
to encourage prisoners to seek treatment, Congress provided
that the Bureau "may" reduce, by up to one year,
the sentence of "a prisoner convicted of a nonviolent
offense" who successfully completes the RDAP.
See 18 U.S.C. § 3621(e)(2)(B). Pursuant to
these provisions, the Bureau offers a 500-hour comprehensive
substance abuse treatment program. See Cort v.
Crabtree, 113 F.3d 1081, 1082 (9th Cir. 1997). The
deprivation of a prisoner's right to be released, or
considered for early release, pursuant to these provisions
states a cognizable claim under 28 U.S.C. § 2241.
See Id. at 1082-87.
courts lack jurisdiction to review BOP's individualized
residential drug abuse program determinations made pursuant
to 18 U.S.C. § 3621(e), such as whether to admit a
particular prisoner into RDAP, or to grant or deny a sentence
reduction for completion of the program. Reeb v.
Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011). But federal
judicial review remains available for allegations that BOP
action is contrary to established federal law, violates the
United States Constitution, or exceeds its statutory
authority. Id; but cf. Id. at 1228 n.4
(inmate cannot prevail on due process claim because inmates
do not have a protected liberty interest in either RDAP
participation or in the associated discretionary early
release benefit). Accordingly, the petition, when liberally
construed, warrants an answer from Respondent.
foregoing reasons and for good cause shown, 1.The Clerk shall
serve a Magistrate Judge jurisdiction consent form, a copy of
this Order, and the petition, and all attachments thereto, on
Respondent and Respondent's attorney, the United States
Attorney. The Clerk also shall serve a copy of this Order on
Respondent shall complete and file the Magistrate Judge
jurisdiction consent form in accordance with the deadline
provided on the form.
Respondent shall also file with the Court and serve on
Petitioner, within ninety-one (91) days of
the date this Order is issued, an answer showing cause why a
writ of habeas corpus should not be granted. Respondent shall
file with the answer and serve on Petitioner a copy of all
records that are relevant to a determination of the issues
presented by the petition. If Petitioner wishes to respond to
the answer, he shall do so by filing a traverse (a reply)
with the Court and serving it on Respondent within
twenty-eight (28) days of the date the
answer is filed.
Respondent may, within ninety-one (91) days
of the date this Order is issued, file a motion to dismiss on
procedural grounds in lieu of an answer. If Respondent files
such a motion, Petitioner shall file with the Court and serve
on Respondent an opposition or statement of non-opposition
within twenty-eight (28) days of the date
the motion is filed, and Respondent shall file with ...