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Horton v. Wilson

United States District Court, E.D. Virginia, Norfolk Division

November 8, 2017

LESIA ROSHAD HORTON, #56612-056 Petitioner,
v.
ERIC D. WILSON, Warden FCC Petersburg Medium Respondent.

          REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE

         In this petition for habeas relief under 28 U.S.C. § 2241, Petitioner Lesia Roshad Horton challenges a decision by the Bureau of Prisons ("BOP") which denied him access to a discretionary sentence reduction available to inmates who complete a residential drug treatment program. Because the BOP's decision is not subject to judicial review under the Administrative Procedures Act ("APA") and Horton's claims fail to plausibly allege a constitutional or legal defect in the BOP's enactment or application of the relevant regulations, this Report recommends Horton's petition be denied and dismissed.

         I. FACTUAL AND PROCEDURAL HISTORY

         Horton, a federal inmate, is serving a 92-month federal prison sentence following his conviction for being a felon in possession of a firearm. While serving his sentence at FCI Petersburg, Horton was interviewed by the facility's Drug Abuse Program Coordinator to determine whether he qualified for services in the prison's Residential Drug Abuse Prevention Program ("RDAP"). The BOP created RDAP pursuant to Congressional authority to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b)(5). The authorizing statute also mandated a residential program. Id, at § 3621(e). Participating in RDAP is voluntary and placement decisions are made by the facility's Treatment Coordinator. 28 C.F.R. § 550.56. To encourage participation, BOP offers a variety of incentives. At issue here is the Bureau's ability to grant up to a one year reduction in sentence for non-violent offenders who successfully complete the program. 18 U.S.C. § 3621(e); Lopez v. Davis, 531 U.S. 230, 233 (2001).

         Although Horton was qualified to participate in RDAP, his case was reviewed by BOP's Designation and Sentence Computation Center ("DSCC") to determine whether Horton would be eligible for a discretionary sentence reduction on completing the program. Relying on implementing regulations adopted by BOP, the legal staff at DSCC determined that Horton would not be eligible. As a result, BOP concluded that Horton was ineligible for any sentence reduction because his offense "involved the carrying, possession or use of a firearm" and "by its nature or conduct, presented a serious potential risk of physical force against the person or property of another." (Declaration of L. Cruz at ¶ 16 (ECF No. 9-2), (quoting 28 C.F.R. § 550.55(b)(5) and (6). Horton appealed the DSCC conclusion, and as the Government concedes, Horton has exhausted his administrative remedies.

         In his habeas petition in this court, Horton makes two arguments. First, he claims that the BOP's adoption of 28 C.F.R. § 550.55, relied upon to deny his participation in the sentence reduction incentive, violates the Administrative Procedures Act, 5 U.S.C. § 701 ("APA" or the "Act"). He claims the regulation is contrary to the language and intent of 18 U.S.C. § 3621(e), the statute it purports to implement. Horton also asserts a general denial of due process and equal protection in the BOP's administration of RDAP's sentence reduction incentive.[1]

         The Respondent filed a Rule 5 Answer and Motion to Dismiss arguing that judicial review of any individual decision to grant or deny admission into RDAP is not subject to review under the APA, and that the BOP's promulgation of 28 C.F.R. § 550.55 did not violate the act. Respondent also contends that Horton enjoys no due process liberty interest in this discretionary program of early release and Horton has not alleged a violation of equal protection. As a result, Respondent argues Horton is not being detained in violation of the constitution or laws of the United States and states no claim for habeas relief. This report analyzes Horton's APA argument as to both the individual decision denying his eligibility and the Bureau's enactment of the regulation and related program statement underlying its decision. It concludes that neither decision violates the terms of the APA. In addition, Horton's general claims that he was denied due process and equal protection fail to plausibly allege facts which would state a claim for habeas relief.

         II. ANALYSIS

         After considering Respondent's arguments and the claims set forth in the Petition, as well as the Reply, the undersigned concludes that Horton has not asserted a request for judicial review of the individual decision denying him admission to the Program. Nevertheless, to the extent such a claim can be read in his pleadings, it is expressly foreclosed by 18 U.S.C. § 3625. With regard to the claim Horton does assert, namely that the BOP's implementing regulation is contrary to Congressional intent, and thus violates the APA, the undersigned concludes that BOP's enactment of the challenged regulation was a valid exercise of its Congressionally-delegated discretion to implement RDAP in the Petersburg Facility. Horton's more general claim to have been denied due process and equal protection is contradicted by Supreme Court precedent that establishes no protected liberty interest arising from the BOP's admittedly discretionary program of early release and by Horton's failure to identify any similarly situated prisoner who was treated differently than he was. Because Horton alleges no other basis on which to conclude that he is being held in violation of federal law, his habeas claim should be dismissed.

         A. 18 U.S.C. § 3625 expressly precludes judicial review of individual decisions granting discretionary sentence reduction under $ 3621(e),

         Although Horton frames his challenge in the nature of a general attack on the enactment of regulations relied upon by the DSCC to deny him eligibility for discretionary release, to the extent they could be construed as a direct challenge to the individual decision made by BOP in his case, such matters are expressly precluded from judicial review by the language of 18 U.S.C.§ 3625. The decision to admit an inmate to RDAP (and the resulting possibility of an earned sentence reduction) is reserved to the discretion of the BOP under the language of 18 U.S.C. § 3629(e)(2)(B). Congress specifically excluded these subsections from judicial review under the APA by the express terms of § 3625 which provides in relevant part "the provisions of § 554 and § 555 and §§ 701-706 of Title V, United States Code, [the APA] do not apply to the making of any determination, decision, or order under this subchapter." 18 U.S.C. § 3625. As a result, BOP's individual decision to deny Horton's admission into RDAP and access to the related discretionary sentence reduction is not reviewable by this Court under the act. Whitaker v. Stansbury, No. 3:03cv662, 2009 WL 3762320, at *5 n.10 (E.D. Va. Nov. 9, 2009); Davis v. Beeler, 966 F.Supp. 483, 489 (E.D. Ky. 1997).

         B. The BOP's enactment of 28 CF.R. § 550.55 was a valid exercise of its regulatory authority and not manifestly contrary to congressional intent,

         Because Horton cannot challenge the individual decision which denied him eligibility, his primary argument is that the BOP's promulgation of 28 CF.R. § 550.55 exceeds the agency's rulemaking authority by "categorically considering sentencing factors, " and is therefore subject to review under the APA. Pet. at 3 (ECF No. 1). He claims the regulation conflicts with the express provisions of the statute which specifically allows early release to offenders "convicted of a nonviolent offense." 18 U.S.C. § 3621(e)(2)(B). Because Horton was convicted under § 924(g) for mere possession of a firearm by convicted felon, he argues his offense of conviction was nonviolent and he should be eligible for early release. This argument has already been rejected by this court, and after reviewing that analysis and the argument set forth in Horton's brief, the undersigned concludes again that BOP acted within its regulatory authority in promulgating the regulations which exclude Horton from RDAP's sentence reduction provisions. Savage v. Wilson, No. 2:13cv578, 2014 WL 1902709, at *5 (E.D. Va. May 8, 2014); Whitaker, 2009 WL 3762320, at *6.

         Agency rulemaking is subject to review under the APA, which requires courts to set aside rules that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(a). Even when vested with discretion, rulemaking agencies must still "examine the relevant data and articulate a satisfactory explanation for . . . action including a rational connection between the facts found and the choice made." F.C.C. v. Fox Television Stations. Inc,, 566 U.S. 502, 513 (2009). See also Md. Dep't of Health & Mental Hygiene v. Ctr. for Medicare and Medicaid Servs,, 542 F.3d 424, 428 (4th Cir. 2008) (describing the arbitrary and capricious analysis). But judicial review is ...


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