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Lewis v. English

United States District Court, D. Kansas

June 7, 2017

NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent.



         This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner, a prisoner in federal custody at FCI-Bennettsville, proceeds pro se. Petitioner challenges his ineligibility to receive early release benefits for participation in the Residential Drug Abuse Program (“RDAP”) while incarcerated at USP-Leavenworth (“USPL”). The Court issued an Order to Show Cause (Doc. 10), Respondent filed an Answer and Return (Doc. 16), and Petitioner failed to file a Traverse within the allowed time.[1] The Court ordered Respondent to supplement the Answer by May 2, 2017, and gave Petitioner until May 30, 2017, to file a supplemental Traverse. Respondent has filed the supplement to the Answer (Doc. 18), and the deadline for Petitioner to file a supplement has passed. The matter is fully briefed and ready for resolution. The Court finds that Petitioner does not allege facts establishing a federal constitutional violation and denies relief.

         1. Background

         In September 2006, Petitioner was convicted in the United States District Court for the Northern District of Indiana for Felon in Possession of a Firearm under 18 U.S.C. § 922(g)(1), and sentenced to 180 months in prison. (Doc. 16-4, at 2-3.) Petitioner was incarcerated at USPL from September 10, 2014 to November 17, 2016. (Doc. 16-1, at 2; Doc. 16-3, at 2.) Petitioner has a projected release date of November 29, 2018, via good conduct time. (Doc. 16- 2, at 2.)

         On December 15, 2015, the Designation and Sentence Computation Center (“DSCC”) legal staff completed an offense review for Petitioner and determined that Petitioner was precluded from receiving early release pursuant to 18 U.S.C. § 3621(e) due to his current conviction for Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1), and his prior convictions for Robbery, in violation of Ill. Rev. Stat. (1989), ch. 38, par. 18-1 (date of conviction May 3, 1989), and Armed Robbery, in violation of Ill. Rev. Stat. (1990), ch. 38, par. 18-2 (date of conviction Sept. 24, 1990). (Doc. 16-1, at 6; Doc. 16-4, at 2; Doc. 16-8, at 2-3.)

         On June 2, 2016, DSCC legal staff re-reviewed Petitioner's early release eligibility under § 3621(e) based on his April 2016 request. (Doc. 16-1, at 6-7; Doc. 16-9, at 2-3.) Although Petitioner was previously precluded based on two prior convictions for offenses deemed precluding under 28 C.F.R. § 550.55(b)(4)(iii) (“Robbery”), those offenses were no longer precluding in light of the Change Notice that became effective on May 26, 2016. (Doc. 16-1, at 7; Doc. 16-7, at 2.) The Change Notice limits ineligibility for certain types of prior convictions to those “within the ten years prior to the date of sentencing for their current commitment.” (Doc. 16-7, at 2.) The DSCC determined that although Petitioner was no longer precluded based on his two prior robbery convictions, he remained precluded based on his current offense. (Doc. 16-9, at 2-3.)

         Petitioner alleges in his Petition that his due process and equal protection rights are being violated by the federal policy that prevents inmates with felon-in-possession convictions from being eligible for early release under the RDAP. Petitioner alleges that non-white inmates are being denied sentence reductions under 18 U.S.C. § 3621(e), while similarly situated white inmates are receiving the reduction. More specifically, Petitioner argues that A.F., a white inmate, received the reduction while Petitioner and other African American inmates were denied.

         II. Standards

         1. Exhaustion

         Generally, a federal prisoner must exhaust available administrative remedies before commencing a habeas corpus petition under 28 U.S.C. § 2241. Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). The BOP's four-part administrative remedy program is codified at 28 C.F.R. § 542. Respondent acknowledges that Petitioner has exhausted his administrative remedies regarding his early release eligibility under 18 U.S.C. § 3621(e). (Doc. 16 at 5.)

         2. Standard of Review

         To obtain habeas corpus relief, an inmate must demonstrate that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

         III. Discussion

         The BOP is required 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). The BOP offers the RDAP for inmates who volunteer for treatment and have a diagnosable and verifiable substance abuse disorder, as determined by BOP clinical staff. (Doc. 16-1, at 4.) To successfully complete RDAP, inmates must complete a unit-based component (minimum 500 hours), follow-up services, and a transitional drug abuse treatment component. Id.

         Federal inmates who were convicted of a nonviolent offense and who successfully complete a drug abuse program are eligible for a reduction of their sentence of up to one year. 18 U.S.C. § 3621(e)(2)(B). Because the statute does not define “nonviolent offense, ” the BOP published an implementing rule and regulations, which provided that prisoners would not be eligible for early release if convicted of a “crime of violence as defined in 18 U.S.C. § 924(c)(3).” Licon v. Ledezma, 638 F.3d 1303, 1306 (10th Cir. 2011). Subsequently, the BOP issued a Program Statement declaring that “crimes of violence” included drug trafficking convictions under 21 ...

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