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Oden v. Wilson

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

January 10, 2018

CHRISTOPHER WILLIAM ODEN, Petitioner,
v.
ERIC WILSON, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young United States Magistrate Judge

         Christopher 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."[1] (§2241 Pet. 7.)
Claim Two: Oden has been denied the ability to participate in a voluntary, nonresidential sex offender treatment program "after release."[2] (Id. at 8.)

         Respondent 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[3] action, he fails to state a claim upon which relief can be granted.

         I. NON-DISPOSITIVE MOTIONS

         In 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 DENIED.

         In his 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.

         To the 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, [4] the new claims will receive no further consideration in this action.

         After 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.

         Oden 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.

         In his 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.

         II. PERTINENT PROCEDURAL HISTORY

         On 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.

         Oden 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.)

         In 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.[5] (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.)

         In 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 ...


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