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Lee v. English

United States District Court, D. Kansas

August 19, 2019

NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent.



         This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. At the time of filing, Petitioner was in federal custody at USP-Leavenworth (“USPL”). Petitioner proceeds pro se and in forma pauperis. Petitioner alleges that the Bureau of Prisons (“BOP”) denied him a “pre-parole/pre-release like setting” or a quantum change in custody in violation of federal law and due process, in retaliation, and based on false and inaccurate information in his Inmate Central File. (Doc. 10, at 5.) The Court denies the Petition and dismisses Petitioner's retaliation claim and any claim he asserts regarding his security classification.

         I. Factual Background

         Petitioner was sentenced in the Western District of Missouri on July 25, 2000, and November 2, 2000, and is serving an aggregated sentence of 327 months of incarceration, followed by five years of supervised release for Distribution and Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841(a)(1), Conspiracy to Distribute and Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 846, Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e), and False Statements in Acquisition of a Firearm, in violation of 18 U.S.C. §§ 922(a)(6) & 924(a)(1)(B). (Doc. 11-1, at 2, 13-14.) Petitioner's projected release date is January 17, 2024, via Good Conduct Time release. Id. at 2, 12.

         The BOP utilizes an inmate's Presentence Investigation Report (“PSR”) to review information related to the offender and to assist with various programming needs. Id. at 2. The inmate's PSR is maintained in the Inmate Central File. Id. While the PSR is maintained in the BOP's files, the BOP does not have the ability or discretion to change or alter the information contained within the PSR. Id. at 2-3. The BOP does not always rely solely on the information contained within the PSR and will frequently evaluate other information related to issues presented in the PSR, including reviewing information presented by the inmate himself. Id. at 3. As part of reviewing programming needs of an inmate, unit team members will evaluate Offense Conduct and Criminal History identified in the PSR or other documentation. Id.

         Initial designations for federal inmates are usually conducted by staff at the Designation and Sentence Computation Center (“DSCC”), who enter information about the inmate from the Sentencing Court, U.S. Marshals Service, U.S. Attorneys Office or other prosecuting authority and the U.S. Probation Office, into a computer database called SENTRY, to calculate a point score for the inmate which is then matched with a commensurate security-level institution- Minimum, Low, Medium, High, and Administrative, for male inmates. Id. at 4; see also BOP Program Statement 5100.08, Inmate Security Designation and Custody Classification (2006) (“P.S. 5100.08”), Ch.1, at 2.[1]

         As part of the base-point scoring system upon which an inmate's custody classification recommendation is based, staff evaluate, among other factors, the severity of the current offense. (Doc. 11-1, at 6.); P.S. 5100.08, Ch. 4, at 7-8, Ch. 6, at 2-5. In order to determine the severity of the current offense, staff at the DSCC for the initial classification or Unit Team for classification updates, review documents associated with the inmate's conviction, including the Statement of Reasons (“SOR”) and the PSR, and Staff enter the appropriate number of points that reflect the “most severe documented instant offense behavior” regardless of the conviction offense. Id. at 7; P.S. 5100.08, Ch. 2, at 2, Ch. 4, at 7-8, Ch. 6 at 2-5. Severity is determined by using the Offense Severity Scale and reviewing the SOR to ensure the information provided is appropriately used in classifying the inmate. Pursuant to the Offense Severity Scale, a score of Greatest Severity (7 points) should be assigned when the inmate's offense behavior includes, among other offenses, “brandishing or threatening use of a weapon.” Id. at 8; P.S. 5100.08, Appendix A, at 1.

         Criminal History Points, normally calculated by the U.S. Probation Office, reflect an assignment of a numerical value based on the inmate's entire criminal record of convictions. P.S. 5100.08, Ch. 2, at 1. They are used to calculate a Criminal History Score, which is one of the factors used to calculate the inmate's security point total. Id. at Ch. 2, at 1, Ch. 4, at 8.

         The inmate's “History of Violence” is also used to assess points “that reflect any history of violence, considering only those acts for which there are documented findings of guilt . . . [and] includes the individual's entire background of criminal violence, excluding the current term of confinement.” Id. at Ch. 4, at 9 (noting that institution disciplinary hearings finding a prohibited act was committed during the current term of confinement will be scored as a history item). The History of Violence points reflect a combination of both the seriousness and recency of prior violent incidents. Id. (i.e., Serious > 15 years). “Documented information from a juvenile, Youth Corrections Act (YCA) or District of Columbia Youth Rehabilitation Act (DCYRA) adjudication can be used unless the record has been expunged or vacated.” Id. Points are also assessed for “History of Escape or Attempts, ” again using a combination of both the seriousness and recency of the incident. Id. at Ch. 4, at 10.

         An inmate's security point score is not the only factor used, and the application of a Public Safety Factor (“PSF”) or a Management Variable (“MGTV”) could affect placement.[2](Doc. 11-1, at 4-5); P.S. 5100.08, Ch. 1, at 2. There are nine PSFs, which BOP staff apply to inmates who are not appropriate for placement at an institution which would permit inmate access to the community, i.e., Minimum security. Id. at Ch. 2, at 4. One of the PSFs is applied for receiving a Greatest Severity Offense classification (noted as Category C) for the inmate's current offense, which dictates the inmate be housed in at least a LOW security-level institution unless the PSF is waived. Id. at 5; P.S. 5100.08, at Ch. 2, at 4, Ch. 5, at 7. The application of a PSF overrides security point scores to ensure the appropriate security level is assigned to an inmate, based on his demonstrated current or prior behavior. Id.; P.S. 5100.08, Ch. 2, at 4. An MGTV, however, may be applied based on the professional judgment of BOP staff to ensure the inmate's placement in the most appropriate level institution. Id.; P.S. 5100.08, Ch. 2, at 3; Ch. 5, at 1 (MGTV's require review and approval by the DSCC Administrator).

         Transfers, also known as redesignations, are “considered in much the same manner using many of the same factors used at the time of initial designation. In addition, the inmate's institutional adjustment and program performance are also carefully reviewed when redesignation is considered.” P.S. 5100.08, Ch. 1, at 3.

         Petitioner has two PSRs. The first PSR, with a Final Report date of July 6, 2000, related to his sentence for multiple counts of Distribution & Possession with Intent to Distribute Cocaine Base, pursuant to 21 U.S.C. § 841(a)(1) (“PSR 1”). The second PSR, with a Final Report date of October 6, 2000, related to his sentence for Felon in Possession of a Firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e), and his sentence for False Statements in Acquisition of a Firearm pursuant to §§ 18 U.S.C. 922(a)(6) and 924(a)(1)(B) (“PSR 2”). (Doc. 11-1, at 3.)

         The BOP maintains that Petitioner's PSR 2 contains information pertaining to his criminal charges and convictions, and indicates that Petitioner returned shots from a vehicle he was driving, inadvertently shot his own vehicle, and displayed a receipt for a gun he had obtained from the Callaway Pawn and Gun Shop. Id. at 9. The BOP also maintains that PSR 2 includes an Addendum to the Presentence Report with the Defendant's objections also dated October 6, 2000, and a Sentencing Addendum to the Presentence Report dated November 2, 2000, in which defendant's objections were overruled. Id. The BOP further alleges that the SOR indicates that the Court adopted the factual findings and Guideline application in PSR 2, and no other documentation was provided to the BOP indicating that Petitioner's sentencing court made any other determinations on any objections proffered by Petitioner. Id. at 9-10. Based on these documents, the BOP scored Petitioner's current offense as Greatest Severity, finding that the offense conduct clearly describes behavior that meets the Weapons category (“brandishing or threatening use of a weapon”) under the Greatest Severity category of the Offense Severity Scale as outlined in Appendix A of P.S. 5100.08. Id. at 10; P.S. 5100.08, at Appendix A, at 1.

         PSR 2 also contains the Defendant's criminal history including a Juvenile Adjudication for Aggravated Robbery. Id. As described in PSR 2, Petitioner was involved with two (2) robberies at gunpoint, and identical information is contained in PSR 1. Id. Despite non-specific objections to criminal history in PSR 1 and PSR 2, the district court judge made no changes to Petitioner's juvenile adjudication for Aggravated Robbery as included in both PSRs. Id. Per P.S. 5100.08, documented information from juvenile or YCA adjudications can be used to assess the Severity of an inmate's History of Violence unless the record has been expunged or vacated. Id.; P.S. 5100.08, Ch. 4, at 9. Ch. 6, at 7. The BOP found that Petitioner's juvenile adjudication for Aggravated Robbery meets the definition of conduct described as a Serious History of Violence. Id.

         At the time of filing, Petitioner's current Custody Classification Form reflected a score of Greatest Severity based on his instant offense behavior as reflected in PSR 2 and following a review of his SOR, and did not reflect an MGTV. Id. at 9, 54. It also reflected a score of >15 Years Serious for Petitioner's History and Severity of Violence, based on his Criminal History found in his PSR 1 and PSR 2. Id. at 9. The BOP determined Petitioner was properly housed at USPL, finding that his total point allotment, including the seven points allotted for being scored at Greatest Severity for his current offense, equals eighteen (18) points, which scores him as a MEDIUM security level inmate with IN custody. Id. Due to his classification as Greatest Severity for his current offense, a PSF was automatically applied, pursuant to Bureau policy. Id. at 10, 54; P.S. 5100.08, Ch. 5, at 7. Petitioner did not have an MGTV at that time. Id. at 54.

         However, after he filed his Petition, and as of May 30, 2019, Petitioner's classification remained at 18 points, which are Medium Level points, but he now has a MGTV for Lesser Security placing him at a Low Security Level. (Doc. 19-1, at 5.); see Doc. 24-1, at 5 (May 17, 2019 Request for Transfer applying Lesser Security MGTV and correcting discrepancies in BP-337/BP-338). Petitioner was transferred to Forrest City-FCI-Low around the beginning of July 2019.[3] Respondent alleges that Petitioner's transfer was completed in accordance with the provisions of P.S. 5100.08. (Doc. 16-1, at 2.)

         II. Motion for Stay Pending Transfer to Another Jurisdiction and on Notice Request to Transfer 28 U.S.C. § 2241 Petition (Doc. 14)

         Petitioner asks the Court to stay this case due to his transfer to another prison, [4] and to transfer his § 2241 Petition to another court within the jurisdiction of his new facility. On July 8, 2019, Petitioner filed a Notice of Address Change (Doc. 21) informing the Court that he is now incarcerated at FCI Forrest City-Low in Forrest City, Arkansas.

         The Court has examined the record but finds no basis to grant Petitioner's request to transfer this case. The Court noted in its previous Order (Doc. 15) that a transfer and accompanying custodial change does not defeat initial jurisdiction. See Pinson v. Berkebile, 604 Fed.Appx. 649, 652-52 (10th Cir. 2015); Griffin v. Ebbert, 751 F.3d 288, 290-91 (10th Cir. 2014) (“Jurisdiction attached on that initial filing for habeas corpus relief, and it was not destroyed by the transfer of petitioner and accompanying custodial change”) (citations omitted); Santillanes v. U.S. Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985) (citations omitted) (“It is well established that jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.”).

         Petitioner's transfer does not divest this court of jurisdiction over his petition, and the transfer he seeks is unnecessary. This matter is fully briefed, and the Court finds that a hearing is unnecessary for the Court to rule on the merits. Petitioner acknowledges that a transfer is unnecessary as long as the Court is able to order his new custodian to comply with the Court's orders. (Doc. 19, at 7.) The U.S. Attorney, on behalf of the BOP, and the current Respondent would be responsible for implementing the directives of the Court. See Atkins v. Garcia, 816 F.Supp.2d 1108, 1117 (D. Colo. 2011) (finding that jurisdiction attached at the initial filing and was not destroyed by a transfer and stating that “[s]ince Respondent has not sought substitution of party, the U.S. Attorney, on behalf of the BOP, and the currently named Respondent in this action, who agreed to the transfer of Applicant . . . are responsible for implementing the directives in this Order.”). However, because the Court is denying relief on the Petition, such a concern is moot. Accordingly, the motion for stay and transfer is denied.

         III. Motion for Evidentiary Hearing and Request for Production of Documents (Doc. 13)

         Petitioner seeks an evidentiary hearing to receive testimony from BOP staff regarding the process of considering the statutory factors under 18 U.S.C. §§ 3624(c) and 3621(b), including how information is processed when corrected information is submitted to be placed in files, and testimony regarding how placement considerations are made. Petitioner also seeks to receive documents from State and Federal Courts which are contained in his Central File.[5]

         The Court finds that an evidentiary hearing is not necessary in light of the Court's rulings. The information Petitioner seeks through testimony is addressed in the BOP's Program Statements that are discussed in this Memorandum and Order. “District courts are not required to hold evidentiary hearings in collateral attacks without a firm idea of what the testimony will encompass and how it will support a movant's claim.” Pittman v. Fox, 766 Fed.Appx. 705, 723 (10th Cir. 2019) (quoting United States v. Cervini, 379 F.3d 987, 994 (10th Cir. 2004)). The Court finds there is nothing in the record indicating Petitioner is entitled to relief. See Stouffer v. Workman, 348 Fed.Appx. 401, 405 (10th Cir. 2009) (unpublished) (citing United States v. Lopez, 100 F.3d 113, 119 (10th Cir.1996) (“In response to a [28 U.S.C.] § 2255 motion, the district court must hold an evidentiary hearing on the prisoner's claims unless the motion and files and records in the case conclusively show that the prisoner is entitled to no relief.”) (quotations omitted); Wilson v. Okla., 335 Fed.Appx. 783, 784 (10th Cir. 2009) (unpublished) (applying this principle to a § 2241 petition)).

         The Court likewise finds that discovery is unnecessary. “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Curtis v. Chester, 626 F.3d 540, 549 (10th Cir. 2010) (quoting Bracy v. Gramley, 520 U.S. 899, 904 (1997)). The Court, in its discretion, may apply Rule 6 of the Rules Governing Habeas Corpus Cases, foll. 28 U.S.C. § 2254, to habeas petitions filed under § 2241. See Rule 1(b), Rules Governing Habeas Corpus Cases. The Court may permit discovery under Habeas Rule 6 if the Petitioner provides “reasons” for the request and the Court finds “good cause” to allow discovery. Id. at Rules 6(a) and 6(b); Smith v. Gibson, 197 F.3d 454, 459 (10th Cir. 1999) (petitioner entitled to discovery “if, and to the extent that, the [district court] judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.”). Petitioner has not shown good cause for discovery. He has not “set forth good reason to believe he may be able to demonstrate he is entitled to relief.” Curtis, 626 F.3d at 549 (citing Bracy, 520 U.S. at 908-09).

         IV. Discussion

         Petitioner acknowledges that the Court cannot order the BOP to place him in a Residential Reentry Center (“RRC”) or a Community Correction Center (“CCC”), but asks the Court to order the BOP to make corrections to his Central File and to follow the statutory mandate in determining his eligibility. (Doc. 10, at 10.) Petitioner claims that the issues in this case are:

I. Whether Petitioner is entitled to Immediate consideration for “Pre-Parole like” setting or “Quantum change” in custody transfer to a [RRC or CCC] without consideration of BOP Policy or regulations that categorically denies petitioner consideration for placement until 17 - 19 months from his release date, without explicit consideration of the factors set by Congress in 18 U.S.C. § 3624(c) and 18 U.S.C. § 3621(b), in violation of the Constitution and laws of the United States?
II. Whether Fabricated facts and Inaccurate Information in the BOP's file in violation of 5 U.S.C. § 552a, relied on in a retaliatory manner undermines the process for RRC/CCC review, where there is a probabilistic impact on the duration of petitioner's custody?
III. Whether the BOP's interpretation of 18 U.S.C. § 3621(b)(2), (3), and (5), in the implementation of Program Statement § 5100.8, that is in direct contravention of well established law?

(Doc. 12-1, at 2-3.)

         1. 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).

         2. Retaliation

         Petitioner claims that he filed multiple challenges through the Administrative Remedy Program which resulted in remands due to inaccuracies in his file. Petitioner alleges that on February 6, 2018, during his Unit Team in Springfield, Missouri, he notified Unit Management of his 10% Community Corrections/Pre-Release eligibility date, after the correction of the inaccurate information, and his Case Manager, Beth Cupp, stated that because of Petitioner's repeated administrative grievances against staff, Petitioner would not be considered for PreRelease/Community Corrections “although Petitioner is within 19 months of his 10% date.” (Doc. 10, at 8.) Petitioner alleges that his Offense Severity was then inappropriately increased to “Greatest Severity” despite it being scored as “Moderate” from his original classification in 2000 through 2017. Id. Petitioner attempted to correct his file at USPL, but was told that he would not be considered for RRC consideration because of what was written in his file, and that he didn't make any friends at Federal Medical Center Springfield. (Doc. 2, at 2.)

         A petition under 28 U.S.C. § 2241 provides the remedy to challenge the execution of a sentence. Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011). Thus, a petitioner may challenge the fact or duration of his confinement and may seek release or a shorter period of confinement. See Palma-Salazar v. Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012). However, claims challenging a prisoner's conditions of confinement do not arise under § 2241. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997) (contrasting suits under Section 2241 and conditions of confinement claims). Therefore, Petitioner may not ...

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