United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
Anthony J. Trenga United States District Judge
Goodwin, a federal inmate proceeding pro se, has filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2241, challenging the Bureau of Prison's
("BOP's") definition of a "crime of
violence" as defined in 28 C.F.R. § 550.55 and
Program Statement 5162.05. On May 18, 2017, respondent filed
a Motion to Dismiss for Lack of Jurisdiction, along with a
supporting memorandum with exhibits. Dkt. Nos. 4-5.
Petitioner was given the Notice required by Local Rule 7(K)
and the opportunity to file responsive materials pursuant to
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975),
however, he has filed no reply. This matter is now ripe for
disposition. For the reasons that follow, respondent's
Motion to Dismiss will be granted.
purposes of the Motion to Dismiss, the record establishes the
following as true. The BOP's Residential Drug Treatment
Program ("RDAP") was established after the passage
of 18 U.S.C. § 3621(b) which states that the BOP
"shall make available appropriate substance abuse
treatment for each prisoner the [BOP] determines has a
treatable condition of substance addiction or abuse." In
order to incentivize participation in RDAP, "[t]he
period a prisoner convicted of a nonviolent offense remains
in custody after successfully completing a treatment program
may be reduced by the [BOP], but such reduction may not be
more than one year from the term the prisoner must otherwise
serve." 18 U.S.C. § 3621 (e)(2)(B). Because the
term "nonviolent offense" was not defined, BOP
promulgated regulations defining the term and, among other
things, categorically excluding from eligibility for early
release "[i]nmates who have a current felony conviction
for ... [a]n offense that involved the carrying, possession,
or use of a firearm or other dangerous weapon or explosives
..." or "[a]n offense that, by its nature or
conduct, presents a serious potential risk of physical force
against the person or property of another ...." 28
C.F.R. §§ 550.55(b)(5)(ii), (iii). BOP also issued
program statements, including Program Statement 5162.05,
which preludes inmates convicted pursuant to 18 U.S.C. §
922(g) from "receiving certain [BOP] program benefits,
" including early release.
August 26, 2011, petitioner was sentenced pursuant to a
conviction of possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g), in the United States
District Court of the District of Maryland. United States
v. Goodwin. 1:11 cr3 3 8. While incarcerated, petitioner
was determined to be eligible to participate in RDAP.
Accordingly, he was evaluated, first on October 27, 2015 and
again on June 22, 2016, to determine if he was eligible for
early release pursuant to 18 U.S.C. §
3621(e). John-Baptiste Aff. at ¶¶ 10-12.
Both times, petitioner was deemed ineligible for early
release based on the fact that he was incarcerated for
violating 18 U.S.C. § 922(g), a crime which involves the
"carrying, possession, or use of a firearm, " and
preludes inmates from "receiving certain [BOP] program
benefits, " including early release. Id.
now argues that he should be eligible for early release
because (1) BOP's definition of a nonviolent offense
exceeds the original scope of 18 U.S.C. § 3621 and (2)
the decision to categorically exclude inmates "who have
a current felony conviction for ... [a]n offense that
involved the carrying, possession, or use of a firearm or
other dangerous weapon or explosives" from early release
is arbitrary and capricious. Dkt. No. 1. Petitioner also
argues, in passing, that his right to "Due Process and
Equal Protection of Law" was violated because another
inmate who was incarcerated for violating 18 U.S.C. §
922(j) was determined to be eligible for early release
pursuant to 18 U.S.C. § 3621. Id.
Standard of Review
Rule of Civil Procedure 12(b)(6) allows a court to dismiss
those allegations which fail "to state a claim upon
which relief can be granted." A court may dismiss claims
based upon dispositive issues of law. Hishon v. King
& Spalding. 467 U.S. 69, 73 (1984). The alleged
facts are presumed true, and the complaint should be
dismissed only when "it is clear that no relief could be
granted under any set of facts that could be proved
consistent with the allegations." Hishon v. King
& Spalding. 467 U.S. 69, 73 (1984). To survive a
12(b)(6) motion, "a complaint must contain sufficient
factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft
v. Iqbal 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly 550 U.S. 544, 570 (2007)).
"A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. However,
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice" to meet this standard, id., and a plaintiffs
"[f]actual allegations must be enough to raise a right
to relief above the speculative level ...."
Twombly., 550 U.S. at 55.
other hand, where, as here, a complaint is filed by a
prisoner acting pro se, it must be construed liberally no
matter how unskillfully it is pleaded. Haines v.
Kerner. 404 U.S. 519 (1972). A pro se litigant thus is
not held to the strict pleading requirements demanded of
attorneys. Estelle v. Gamble. 429 U.S. 97, 106-07
(1976); Figgins v. Hudspeth. 584 F.2d 1345 (4th Cir.
1978), cert, denied. 441 U.S. 913 (1979). For these
reasons, a court's "power summarily to dismiss a
prisoner's pro se complaint is limited."
Figgins. 584 F.2d at 1347.
Challenges to 28 C.F.R. § 550.55 and Program Statement
5162.05 Petitioner's arguments that (1) 28 C.F.R. §
550.55 and Program Statement 5162.05 are contrary to the
language and intent of 18 U.S.C. § 3621(e), and (2)
there is no rational basis for the categorical exclusion of
inmates "who have a current felony conviction for ...
[a]n offense that involved the carrying, possession, or use
of a firearm or other dangerous weapon or explosives"
from early release are meritless, as several courts have
recognized. See Lopez v. Davis. 531 U.S. 230 (2001);
Whitaker v. Stansberry. No. 3:03cv662, 2009 WL
3762320, at *5 (E.D. Va. Nov. 9, 2009); Savage v.
Wilson. No. 3:13cv578, 2014 WL 1902709, at *1 (E.D. Va.
May 8, 2014). In Savage, the court determined that
"[§ 550.55] and its explanatory statement clearly
satisfied the BOP's obligation to provide a 'rational
connection between the facts found and the choice made.'
See Lopez. 531 U.S. at 240." There can be no
doubt there is a link between the potential for violent
conduct by persons convicted of possession of a firearm by a
felon and the risk to public safety. There is, therefore, a
clear rational connection between an inmate's
ineligibility for discretionary early release and an
inmate's record of the commission of a violent offense.
Thus, as the court in Savage noted,
"promulgation of the rule... [does not] violate the
APA." Savage. 2014 WL 1902709, at *5 (citing
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto
Ins. Co.. 463 U.S. 29, 43 (1983)). Put simply, there is
a thoroughly rational connection between the commission of a
violent offense and ineligibility for discretionary early
release. It follows that the BOP acted well within its
regulatory authority in promulgating § 550.55 and
Program Statement 5162.05.
extent petitioner raises a due process claim, his argument
fares no better. To establish a violation of the Due Process
Clause, a petitioner for habeas relief must first identify a
liberty or property interest protected by the Fifth
Amendment. Am. Mfrs. Mut. Ins. Co. v. Sullivan. 526
U.S. 40, 59 (1999). It is well established that a convicted
prisoner has no constitutionally-protected liberty interest
in early discretionary release. Sandin v. Conner.
515 U.S. 472, 484 (1995); Greenholtz v. Inmates of Neb.
Penal & Corr. Complex.442 U.S. 1, 7 (1979). Thus,
if a statute permitting early release places no
"substantive limitations on official discretion" in
granting such release, it implicates no liberty interest.
Olim v. Wakinekona. 461 U.S. 238, 249 (1983). Here,
the BOP is vested with virtually unfettered discretion to
reduce the sentence of a prisoner "convicted of a
nonviolent offense" by § 3621 (e). Thus, regardless
of whether petitioner had a conviction of a violent offense
or not, his access to the sentence reduction under RDAP still
would be left to the BOP's sole and unreviewable
discretion. Accordingly, as several courts have held, denial
of access to the RDAP program and its sentence reduction
opportunity is insufficient to trigger a liberty interest
subject to due process protection. Savage. 2014 WL
1902709, at *5; see also. Cook ...