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Thompson v. Loftness

United States District Court, Tenth Circuit

June 7, 2013

KENNETH L. THOMPSON, Petitioner,
v.
JON D. LOFTNESS, Respondent.

MEMORANDUM AND ORDER

RICHARD D. ROGERS, U.S. Senior District Judge

This matter is a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner has been incarcerated at the United States Penitentiary, Leavenworth, Kansas, at the satellite camp facility at all relevant times.

The court has examined the entire record, including the proposed supplemental reply submitted by petitioner, and enters the following findings and order.

Background

The federal Bureau of Prisons (BOP) provides substance abuse treatment programs to offenders, including its Residential Drug Abuse Program (RDAP). Certain inmates who complete the RDAP are eligible for early release of up to one year. 18 U.S.C. § 3621(e). However, the BOP has categorically excluded from such early release those prisoners who have been given a prior sentence reduction under that statute.

Petitioner previously was incarcerated under a federal sentence of 120 months for Possession with Intent to Distribute Methamphetamine in violation of 21 U.S.C. § 841(a)(1) imposed in the District of Kansas. He was released on December 24, 2003, under early release pursuant to 18 U.S.C. § 3621(e).

Petitioner presently is serving a 72-month sentence imposed in February 2010[1] in the U.S. District Court for the Western District of Missouri for Conspiracy to Distribute Fifty (50) Grams or More of Methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841 (b)(1)(A). The sentencing court recommended that he receive “the opportunity to participate in the 500 hour residential substance abuse treatment program.” (Doc. 9, Attach. 1, Exs. A & B.) He came back into federal custody on March 24, 2010, and he began to participate in RDAP for the second time on December 1, 2011.

Discussion

A federal court may issue the writ of habeas corpus only where the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The regulatory framework

In 1990, Congress directed the BOP to provide residential substance abuse treatment to prisoners found to have a treatable condition of substance addiction or abuse. See Crime Control Act of 1990, Pub.L.No. 101-647, § 2903, 104 Stat. 4789, 4913 (codified at 18 U.S.C. § 3621(b)).

In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act (VCCLEA), which added an incentive for participation in this treatment by allowing the BOP the discretion to reduce the sentence of an inmate who successfully completes treatment by up to one year, provided the inmate was convicted of a nonviolent offense.

See 18 U.S.C. § 3621(e)(2)(B).

The statute did not set eligibility criteria for early release, and in May 1995, the BOP published an interim rule, effective in June 1995, that categorically excluded several groups of prisoners who would not be considered for early release. 60 Fed. Reg. 27695 (May 25, 1995).

In December 2000, following notice and comment, the 1997 version of the interim rule was finalized. 65 Fed. Reg. 80749. The rule ...


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