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Hicks v. English

United States District Court, D. Kansas

June 7, 2017

MICHAEL HICKS, Petitioner,
v.
NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner, a prisoner in federal custody at USP-Leavenworth (“USPL”), proceeds pro se. Petitioner challenges his ineligibility to receive early release benefits for participation in the Residential Drug Abuse Program (“RDAP”) while incarcerated at USPL. The Court issued an Order to Show Cause (Doc. 8), Respondent filed an Answer and Return (Doc. 11), and Petitioner filed a Traverse (Doc. 12). 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. 14), 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.

         I. Background

         Petitioner is currently incarcerated with the Federal Bureau of Prisons (“BOP”) at USPL. In September 2015, Petitioner was convicted in the United States District Court for the Northern District of Iowa under 18 U.S.C. §§ 922(g)(3) and 924(a)(2) for Unlawful User of Controlled Substances in Possession of a Firearm, and sentenced to 61 months in prison. (Doc. 11-3, at 2- 3.) Petitioner has a projected release date of December 26, 2017, via good conduct time. (Doc. 11-2, at 2.)

         On February 8, 2016, 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 Unlawful User of Controlled Substances in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). (Doc. 11-7, at 2-3.) While this review indicates that Petitioner was also precluded under 28 C.F.R. § 550.55(b)(6), this section is no longer applicable to Petitioner based on the Change Notice effective May 2016. (Doc. 11-1, at 6.)

         On June 6, 2016, DSCC legal staff re-reviewed Petitioner's § 3621(e) early release eligibility based on his April 2016 request, issued a superseding BP-942, and determined that Petitioner still remained precluded based on his current offense. (Doc. 11-8, at 2-3.)

         Petitioner alleges in his Petition that his due process and equal protection rights are violated by the disparity in early release eligibility under the RDAP regarding offenses involving firearm violations. 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. 11, at 4.)

         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. 10-1, at 4.) To successfully complete RDAP, inmates must ...


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