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Lugo v. Wilson

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

November 15, 2018

ANDRES LUGO, Petitioner,
v.
ERIC D. WILSON, Respondent.

          REPORT AND RECOMMENDATION

          Roderick C. Young United States Magistrate Judge.

         Andres Lugo, a former[1] federal inmate proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2241 ("§ 2241 Petition," ECF No. 1). In Lugo's § 2241 Petition, he raises the following claim for relief:[2]

Claim One: The Bureau of Prisons' ("BOP") "statutory interpretation of 18 U.S.C.[] § 3621(e)(2)(B)[3] is in error as a matter of law." (§ 2241 Pet. 6.)

         Respondent has filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment ("Motion for Summary Judgment," ECF No. 5), [4] asserting, inter alia, that Lugo's claim lacks merit. Lugo has responded. (ECF No. 8.) For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment be GRANTED and the § 2241 Petition be DENIED because Lugo's claim regarding the BOP's statutory interpretation of 18 U.S.C. § 3621(e)(2)(B) is without merit.

         A. Summary Judgment Standard

         Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). It is the responsibility of the party seeking summary judgment to inform the Court of the basis for the motion and to identify the parts of the record that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c) and 56(e) (1986)).

         In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed." Id. (quoting Munson, 81 U.S. at 448). Additionally, "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skolak v. Tenneco Resins, Inc., 953 F.2d 909, 915, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials----").

         In support of his Motion for Summary Judgment, Respondent submits: (1) the Declaration of Sandra K. Long, a Paralegal Specialist at the BOP's Designation and Sentence Computation Center in Grand Prairie, Texas ("Long Decl.," ECF No. 6-1); (2) a copy of a Change Notice to BOP Program Statement 5331.02, Early Release Procedures Under 18 U.S.C. § 3621(e), with an effective date of May 26, 2016 (id. Attach. 1, ECF No. 6-2, at 2); (3) a copy of BOP Program Statement 5331.02, Early Release Procedures Under 18 U.S.C. § 3621(e), with an effective date of March 16, 2009 (id. Attach. 1, ECF No. 6-2, at 3-15); (4) a copy of BOP Program Statement 5162.05, dated March 16, 2009 (id Attach. 2, ECF No. 6-3); and, (5) a copy of Lugo's Request for § 3621(e) Offense Review form, dated July 27, 2016 (id Attach. 3, ECF No. 6-4).

         Lugo signed his § 2241 Petition under penalty of perjury. (§ 2241 Pet. 9.) Lugo also submitted exhibits with his § 2241 Petition. (ECF No. 1-1, at 1-10.) The Court will consider these submissions in determining the propriety of the Motion for Summary Judgment. See Fed. R. Civ. P. 56(c). Additionally, Lugo submitted a Response in Opposition, responding to Respondent's motion, and the Court will consider Lugo's arguments in support of his position. (ECF No. 8.)

         However, the Court notes that in Lugo's Response in Opposition, in addition to responding to Respondent's motion, it appears that Lugo seeks to add a vague, new "counter cross-claim," regarding alleged "selective enforcement of regulations and [Residential Drug Abuse Program ("RDAP")] directives." (Id. at 7.) To the extent that Lugo seeks to add vague, new claims in his Response in Opposition, the Court notes that Lugo cannot add new claims by a passing reference in this submission. 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 Lugo seeks to add any new claims in his Response in Opposition, [5] the new claims will receive no further consideration in this action.

         In light of the foregoing principles and submissions, the following facts are established for purposes of the Motion for Summary Judgment. The Court draws all permissible inferences in favor of Lugo.

         B. Summary of Pertinent Facts

         When Lugo filed his § 2241 Petition, he was "serving a 46-month sentence imposed by the United States District Court for the Southern District of Florida due to his conviction for Conspiracy to Violate the RICO [Racketeer Influenced and Corrupt Organizations] Act, in violation of 18 U.S.C. § 1962(d)." (Long Decl. ¶ 2.) In her Declaration, Ms. Long states,

In this case, the offense of conviction is a conspiracy, and the underlying offense is Robbery, in violation of 18 U.S.C. § 1951(a)....
... [T]he United States Probation Officer recommended a five-level SOC [Specific Offense Characteristic] enhancement . . . because a firearm was brandished or possessed. Moreover, in the Judg[]ment and Commitment Order's Statement of Reasons, the sentencing court adopted the PSR [Pre-Sentence Report] "without change," thereby affirming and adopting the recommended five-level SOC enhancement.

(Id.¶¶ 12-13.)

         While Lugo was serving his sentence at FCI Petersburg, the Drug Abuse Program Coordinator ("DAPC") requested that Lugo receive an offense review pursuant to 18 U.S.C. § 3621 (e) to determine whether Lugo was eligible for early release should he successfully complete the BOP's RDAP. (See Id. Attach. 3, ECF No. 6-4, at 2.) To complete the offense review, Lugo's offense records were submitted to the BOP's Designation and Sentence Computation Center ("DSCC"). (Id. ¶¶ 1, 4, 9.) In completing the offense review,

the DSCC Legal Department determines whether an inmate is precluded from receiving early release after reviewing the inmate's DSCC-maintained electronic sentence computation file, which includes the Judgment and Commitment Order[, ] ... Statement of Reasons[, ] .. . Pre-Sentence Investigation Report[, ] .. . and any other relevant sentencing documentation. The final decision ...

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