United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young United States Magistrate Judge
William Oden, a federal inmate proceeding pro se,
brings this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 ("§ 2241 Petition, " ECF
No. 1), challenging the execution of his federal sentence. In
his § 2241 Petition, Oden argues entitlement to relief
based upon the following grounds:
Claim One: "Incorrect past criminal custody level points
for violence places Petitioner at USP [United States
Penitentiary] points. This violates Petitioner's
constitutional rights and puts his life at a greater safety
risk for a disabled inmate." (§2241 Pet. 7.)
Claim Two: Oden has been denied the ability to participate in
a voluntary, nonresidential sex offender treatment program
"after release." (Id. at 8.)
has moved to dismiss ("Motion to Dismiss, " ECF No.
11) Oden's § 2241 Petition, arguing that, inter
alia, Oden fails to establish that he is in custody in
violation of the Constitution or laws of the United States,
as required under 28 U.S.C. § 2241. Respondent also
analyzes Oden's § 2241 Petition as a civil rights
action, arguing that Oden fails to show that either of his
claims implicate protected liberty interests that rise to the
level necessary to invoke Due Process protections. (Mem.
Supp. Mot. Dismiss at 6-10, ECF No. 12.) For the reasons set
forth below, Respondent's Motion to Dismiss (ECF No. 11)
will be GRANTED. Oden's § 2241 Petition will be
DENIED because Oden's claims are not cognizable under 28
U.S.C. § 2241 and, alternatively, construing his §
2241 Petition as a Bivens action, he fails to state a
claim upon which relief can be granted.
addition to filing his § 2241 Petition, Oden filed a
Motion to Supplement ("Motion to Supplement, " ECF
No. 17), Motion for Equitable Tolling of Time ("Motion
for Equitable Tolling, " ECF No. 18), Motion for
Appointment of Counsel ("Motion for Appointment of
Counsel, " ECF No. 19), and Motion for Joinder of Party
("Motion for Joinder of Party, " ECF No. 22). For
the reasons set forth below, the Motion to Supplement and the
Motion for Equitable Tolling will be DENIED AS MOOT, the
Motion for Appointment of Counsel will be DENIED WITHOUT
PREJUDICE, and the Motion for Joinder of Party will be
Motion to Supplement, Oden states that he "brings before
this court a supplement to his motion, " and
"includes his defective Indictment that is a
constitutional violation that affects his sentence."
(Mot. Suppl. 1.) Oden did not attach an indictment to his
Motion to Supplement; however, Oden attached a Traverse
("Traverse, " ECF No. 17-2), responding to
Respondent's Motion to Dismiss. The Court construes
Oden's Traverse as his response in opposition to
Respondent's Motion to Dismiss and, as such, Oden timely
filed his Traverse. Accordingly, Oden's Motion to
Supplement (ECF No. 17) will be DENIED AS MOOT, and the Court
will consider Oden's Traverse as his response in
opposition to Respondent's Motion to Dismiss.
extent Oden seeks to add vague new claims in his Motion to
Supplement or Traverse, the Court notes that Oden cannot add
new claims by a passing reference in these submissions.
See Snyder v. United States, 263 Fed.Appx. 778,
779-80 (11th Cir. 2008) (refusing to consider
petitioner's statement in a reply brief as an attempt to
amend his § 2255 motion to add a new claim); E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 847
F.Supp.2d 843, 851 n.9 (E.D. Va. 2012); Equity in
Athletics, Inc. v. Dep't of Educ, 504 F.Supp.2d 88,
111 (W.D. Va. 2007) (citations omitted) (explaining that
"new legal theories must be added by way of amended
pleadings, not by arguments asserted in legal briefs").
Therefore, to the extent that Oden seeks to add any new
claims in his Motion to Supplement and Traverse,
new claims will receive no further consideration in this
filing his Motion to Supplement, Oden filed a Motion for
Equitable Tolling, requesting "equitable tolling of the
time for acceptance of his Traverse Motion." (Mot.
Equitable Tolling 1.) As discussed above, the Court construes
Oden's Traverse as his timely filed response in
opposition to Respondent's Motion to Dismiss. Oden
therefore does not need leave of Court to file his Traverse.
Accordingly, Oden's Motion for Equitable Tolling (ECF No.
18) will be DENIED AS MOOT.
also moves for the appointment of counsel. (Mot. Appointment
Counsel 1.) No. constitutional right to have appointed
counsel in post-conviction proceedings exists. Mackall v.
Angelom, 131 F.3d 442, 449 (4th Cir. 1997). The Court,
however, may appoint counsel to a financially eligible person
if justice so requires. See 18 U.S.C. §
3OO6A(a)(2)(B). Oden fails to demonstrate that the interests
of justice warrant the appointment of counsel at this
juncture. Accordingly, Oden's Motion for Appointment of
Counsel (ECF No. 19) will be DENIED WITHOUT PREJUDICE.
Motion for Joinder of Party, Oden seeks to add "Jeff
Sessions, Attorney General, " and "Mark Inch, FBOP
Director, " as Defendants in this matter. (Mot. Joinder
Party 1.) The Court notes that Oden filed his instant action
as a § 2241 Petition. "The federal habeas statute
straightforwardly provides that the proper respondent to a
habeas petition is 'the person who has custody over [the
petitioner]."' Rumsfeld v. Padilla, 542
U.S. 426, 434 (2004) (quoting 28 U.S.C. § 2242). As
such, "the default rule is that the proper respondent is
the warden of the facility where the prisoner is being held,
not the Attorney General or some other remote supervisory
official." Id. at 435 (citations omitted).
Therefore, Attorney General Jeff Sessions and FBOP Director
Mark Inch are not proper parties to Oden's § 2241
Petition. Furthermore, as set forth below, the Court
concludes that, if Oden's § 2241 Petition is
construed as a Bivens action, he fails to state a
claim upon which relief can be granted because he is unable
to show that he has a constitutionally protected liberty
interest in either his custody classification or
participation in a specific sex offender treatment program.
The addition of Jeff Sessions and Mark Inch as Defendants
would not cure the deficiencies of Oden's Bivens
action. Accordingly, Oden's Motion for Joinder of Party
(ECF No. 22) will be DENIED.
PERTINENT PROCEDURAL HISTORY
November 1, 2011, in the United States District Court for the
Northern District of West Virginia ("Sentencing
Court"), Oden pled guilty to possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
See Oden v. United States, Nos. 3:13-CV-93,
3:11-CR-56, 2014 WL 2462993, at *2-3 (N.D. W.Va. June 2,
2014). On June 2, 2014, the Sentencing Court denied a 28
U.S.C. § 2255 Motion filed by Oden. Id.
then filed a petition pursuant to 28 U.S.C. § 2241
("First § 2241 Petition") in this Court.
Oden v. Wilson, No. 3;I5CVI96, 2016 WL 183469, at *
1-2 (E.D. Va. Jan. 11, 2016). In his First § 2241
Petition, Oden raised four claims in an attempt to challenge
his conviction and sentence. See Id. at *2 (setting
forth Oden's four claims for relief in his First §
2241 Petition). By Memorandum Opinion entered on January 11,
2016, the Court dismissed Oden's First § 2241
Petition for lack of jurisdiction, explaining that "it
is plain under the precedent in the United States Court of
Appeals for the Fourth Circuit that Oden may not utilize 28
U.S.C. § 2241 to challenge his conviction or
sentence." Id. at *2; see Id. at *6.
Oden now seeks to challenge the execution of his sentence and
has filed another § 2241 Petition in this Court. (§
2241 Pet. 2-10.)
Oden's instant § 2241 Petition, he asserts that he
is challenging "the way his sentence is being carried
out [which] directly [a]ffects Petitioner while
incarcerated." (Id. at 6.) Specifically, Oden
alleges that the Federal Bureau of Prisons ("BOP")
improperly increased his custody points for past
violence. (Id. at 3, 7-8.) Oden states that
a "[n]ewly appointed case manager changed [his] custody
points for past violence that was a 0 to [a] 6."
(Id. at 8.) Oden alleges that this increase in his
custody points for past violence was contrary to "the
Statement of Reasons ("SOR") and the judicial
findings showing a non-aggressive offense in his previous
North Carolina conviction." (Id.) As relief,
Oden requests that the Court "order the Bureau to remove
the 6 points that [were] incorrectly added that [a]ffects the
way Petitioner's sentence is being carried out and allow
him to take a non-residential (SOMP) program."
(Id. at 9.)
support of his § 2241 Petition, Oden attached the
response from the National Inmate Appeals Administrator dated
January 18, 2017 ("January Administrative Appeal
Response, " ECF No. 1-1), denying his appeal regarding
his custody classification score. The January Administrative
Appeal Response discusses ...