United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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.
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.
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.(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
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.
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.)
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
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.
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.
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. Respondent alleges that Petitioner's
transfer was completed in accordance with the provisions of
P.S. 5100.08. (Doc. 16-1, at 2.)
Motion for Stay Pending Transfer to Another Jurisdiction and
on Notice Request to Transfer 28 U.S.C. § 2241 Petition
asks the Court to stay this case due to his transfer to
another prison,  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.
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
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.
Motion for Evidentiary Hearing and Request for Production of
Documents (Doc. 13)
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.
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)).
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).
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.)
Standard of Review
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.
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.)
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 ...