Opinion
Civil No. 98-1098-HA
December 14, 2001
OPINION AND ORDER
Petitioner's original grant of relief by this court was reversed on appeal. See Bowen v. Hood, 202 F.3d 1211, 1217 (9th Cir. 2000). Presently before the court is the petitioner's motion to amend his 28 U.S.C. § 2241 petition for habeas corpus relief. Because the petitioner is no longer in the custody of the Bureau of Prisons (BOP), the court must first determine whether this petition must be dismissed as moot.
MOOTNESS
"A case becomes moot when it no longer satisfies the case-or-controversy requirement of Article III, Section 2, of the Constitution." United States v. Verdin, 243 F.3d 1174 (9th Cir. 2001). The case-or-controversy requirement demands that the parties "continue to have a personal stake in the outcome of the lawsuit" through all stages of the judicial proceedings. Spencer v. Kemna, 523 U.S. 1, 7 (1998). "This means that . . . the [petitioner] `must have suffered . . . an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision.'" Id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). "The question is not whether the precise relief sought at the time the application [for the writ] is still available. The question is whether there can be any effective relief." West v. Secretary of Dept. of Transportation, 206 F.3d 920, 925 (9th Cir. 2000).
The petitioner has challenged the BOP's denial of a 12 month prison sentence reduction provided for in 18 U.S.C. § 3621(e)(2)(B). However, the petitioner is no longer in the custody of the BOP, and no order that the court can enter in favor of the petitioner or against the BOP will have any effect on the length of the petitioner's prison sentence.
The petitioner contends that a favorable ruling could be used to persuade his original sentencing judge to reduce his term of post-prison supervision. See 18 U.S.C. § 3583(e); United States v. Johnson, 529 U.S. 53 (2000). In Johnson, the defendant was serving time in prison when two of his convictions were declared invalid. As a result, he had served too much prison time. The court ruled that the defendant was not entitled to a reduction in the term of his post-prison supervised release, but suggested that Johnson might seek relief under 18 U.S.C. § 3583. However, such relief is an exercise of discretion on the part of the sentencing judge, is not mandated by the statute, and is dependent on consideration of many factors. See 18 U.S.C. § 3583(e), 3553(a)(1), (a)(2)(B), a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6).
The petitioner here does not challenge his underlying conviction. Johnson, on the other hand, had been in custody for crimes for which he was not convicted.
Petitioner also relies on United States v. Verdin, supra. In Verdin, the mootness doctrine did not apply because the defendant was appealing his sentence, and a favorable ruling would necessarily have resulted in a resentencing that could have reduced his term of post-prison supervision. However, the sentencing court apparently could have imposed the same term of post-prison supervision that was originally imposed even had the defendant been successful on appeal.
After oral argument in this case, the Ninth Circuit decided the case of Gunderson v. Hood, 268 F.3d 1149 (9th Cir. 2001). Gunderson, like this case, challenged the BOP's denial of a sentence reduction. In that case, the petitioner was denied a sentence reduction and would "not complete the final phase of the early release program until his scheduled release date." Gunderson, 268 F.3d at 1153. However, the court ruled that his appeal was not moot because a favorable ruling could benefit Gunderson under 18 U.S.C. § 3583(e)(2). Section 3583(e) allows a sentencing court to change the term (duration) of supervised release by either "terminating a term of supervised release . . . at any time after the expiration of one year of supervised release," 18 U.S.C. § 3583(e)(1), "extend a term of supervised release if less than the maximum authorized term was previously imposed," 18 U.S.C. § 3583(e)(2), or "revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release." 18 U.S.C. § 3583(e)(3). "However, § 3583(e)(2) allows the court to modify or reduce the conditions of supervised release at any time." Gunderson, 268 F.3d at 1153. Based on Gunderson and Verdin, the petition in this case is not moot.
18 U.S.C. § 3583(e)(2), reads in relevant part: "The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6) — . . . (2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior t the expiration or termination of the term of supervised release."
BACKGROUND
The petitioner applied for admission to the Drug and Alcohol Program (DAP) pursuant to 18 U.S.C. § 3621. The BOP found petitioner eligible for the program, but denied his eligibility for a 12-month sentence reduction should he successfully complete the program. 18 U.S.C. § 3621(e)(2). The BOP denied the sentence reduction because petitioner had possessed a firearm or other dangerous weapon during the commission of the crime for which he is currently imprisoned.
The statute confers broad discretion on the BOP to decide which prisoners may receive the sentence reduction, stating that
(A) Generally. — Any prisoner who, in the judgment of the Director of the Bureau of Prisons, has successfully completed a program of residential substance abuse treatment provided under paragraph (1) of this subsection, shall remain in the custody of the Bureau under such conditions as the Bureau deems appropriate.
. . .
(B) Period of Custody. — The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.18 U.S.C. § 3621(e)(2).
Interpretation of this statute had been the subject of extensive litigation long before this petition was filed. Prior to 1997, the BOP simply defined a "violent offense" to include any offense which was accompanied by the possession of a firearm or other dangerous weapon. The Ninth Circuit found that the BOP "misinterpreted the meaning of `nonviolent offense' because it could not declare that possession of a firearm, either as the very offense of conviction or as an enhancement, was itself enough to make a crime one of violence." Bowen v. Hood, 202 F.3d 1211, 1217 (9th Cir. 2000) (summarizing the earlier holdings in Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997), and Downey v. Crabtree, 100 F.3d 662, 670 (9th Cir. 1996).
After the decisions in Davis and Downey, the BOP implemented two new program statements and a new interim rule which based the same denial of the sentence reduction on the BOP's discretion rather than the earlier definition of a nonviolent offense. Based on this permissible exercise of discretion, this petitioner and many others were denied the 12 month reduction in their prison sentences. Bowen, 202 F.3d at 1219; see also Grassi v. Hood, 251 F.3d 1218, amended 260 F.3d 1158 (9th Cir. 2001).
See 8 C.F.R. § 550.50 (Oct. 15, 1997); Change Notice-03, Program Statement 5330.10 (Oct. 9, 1997); Program Statement 5162.04 (Oct. 9, 1997).
The court specifically noted that the BOP's policy of denying early release for this group of offenders was consistent throughout the litigation, although the legal basis to support that policy evolved as a result of earlier court decisions. Bowen, 202 F.3d at 1219.
The petitioner now seeks to amend his petition based on the Ninth Circuit's declining to decide whether the 1997 interim rule and the program statements violated the notice and comment provisions of the Administrative Procedure Act.
DISCUSSION
Rule 15 of the Federal Rules of Civil Procedure governs amended pleadings. The petitioner argues that his proposed amendments should be allowed under either Rule 15(b) or, alternatively, under Rule 15(a).
1. Rule 15(b) Amendment
Rule 15(b) states that when
issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
Petitioner argues that his APA challenges to the BOP's 1997 interim rule and the program statements were fully developed in the earlier district court proceedings. Thus, although the district court ruled in favor of the petitioner on other grounds, he contends that the court must now conform the pleadings to the record.
The briefing for at least 53 petitioners, including this petitioner, was identical. See Bohner v. Hood, 99-1116-HA, Status Report, exhibit L (Grassi petition for rehearing), page 12, n3. Therefore, Grassi's brief seeking a rehearing in the Ninth Circuit is an accurate reference to this petitioner's briefing, and speaks directly to the issue before this court in this motion to amend.
Petitioner's argument fails because a careful review of the record does not show that the APA issues were developed by the parties in district court. This reading is confirmed by the Ninth Circuit's observation that the issues were not before that court. See Grassi v. Hood, 251 F.3d 1218 (9th Cir. 2001), amended 260 F.3d 1158 (9th Cir. 2001); Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000). Had the APA arguments been part of the record, the appellate court could have affirmed the district court on the petitioner's alternative grounds. Grassi, 251 F.3d at 1221; see also Mollnow v. Carlton, 716 F.2d 627, 628 n. 1 (9th Cir. 1983) cert. denied (1984); Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987). For these reasons, petitioner's motion to amend pursuant to Fed.R.Civ.P. 15(b) is denied.
2. Amendment pursuant to Rule 15(a)
The general policy under the federal rules is that leave to amend a pleading "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), and the policy is to be applied liberally. Morongo Band of Mission Indians v. Rose, 893 F.2d 1074 (9th Cir. 1990). Amendments "seeking to add claims are to be granted more freely than amendments adding parties", Union Pacific Railroad Co. v. Nevada Power Company, 950 F.2d 1429, 1432 (9th Cir. 1991), and the court's discretion to deny leave to amend is more broad where the plaintiff has previously filed an amended complaint. Simon v. Value Behavioral Health, Inc., 208 F.3d 1073 (9th Cir. 2000).
Over time, courts have identified the following factors that may, either alone or in combination, justify denying leave to amend a pleading. Those factors include (1) futility of amendment; (2) prejudice to the opposing party; (3) undue delay; (4) bad faith or dilatory motive; and (5) repeated failure to cure deficiencies by previous amendments. Price v. Pinnacle Brands, Inc., 138 F.3d 602, 608 (5th Cir. 1998); Moore v. Kayport Package Express, 885 F.2d 531 538 (9th Cir. 1989). The granting or denial of leave to amend rests in the sound discretion of the trial court. Swanson v. United States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996).
a. Futility of Amendment
Leave to amend may be denied if the proposed amendment is futile or would be subject to dismissal. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). In this case, it appears that the combined rulings in several recent cases leave little doubt that the 1997 interim rule and program statements which the petitioner challenges effected valid exercises of BOP discretion. Lopez v. Davis, 121 S.Ct. 714 (2001); Reno v. Koray, 515 U.S. 50 (1995); Grassi v. Hood, 251 F.3d 1218 (9th Cir. 2001), amended 260 F.3d 1158 (9th Cir. 2001); Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000); Christensen v. Harris County, 529 U.S. 576 (2000). The only challenge presented here is whether the rule and program statements comported with the "notice and comment" procedural requirements of the APA.
Because the petitioner's challenge is purely procedural, the first obstacle to petitioner's success on the merits is his own failure to exhaust his administrative remedies, in spite of his own view that pursuing administrative remedies would be futile. The Supreme Court has recently held that futility alone is not adequate to excuse a prisoner from exhausting administrative remedies. Booth v. Churner, 523 U.S. 731 (2001). Although that case addressed litigation under the Prison Litigation Reform Act (PLRA), it is important to note that the PLRA, together with the Antiterrorism and Effective Death Penalty Act (AEDPA), set forth a clear policy that prisoner litigants should, except in the rarest of circumstances, exhaust all administrative remedies prior to filing in federal court. Further, the PLRA and AEDPA evidence a strong policy preference for timely filing of claims by prisoner litigants. Although the PLRA and the AEDPA do not expressly apply to habeas corpus petitions filed pursuant to 28 U.S.C. § 2241, the clear policy supporting those laws would have to be considered in this case. "[H]abeas corpus is, at its core, an equitable remedy." Schlup v. Delo, 513 U.S. 298, 319 (1995). In this case, the petitioner would be asking the court to allow a procedural challenge by one who has wilfully ignored procedural requirements. This factor weighs against the petitioner.
b. Prejudice to the Opposing Party
This is by far the most common reason for denying leave to amend. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). In this case, the BOP deserves some finality after years of delay and success on its appeal. At oral argument, the BOP's attorney recited the lengthy procedural history of this and the other similar petitions which have challenged the BOP's ability to deny sentence reductions. The procedural history includes denial of relief by the Ninth Circuit. Granting this eleventh-hour attempt to add an APA claim that could have been developed long ago would substantially prejudice the respondent.
c. Undue Delay
While undue delay is not usually sufficient by itself to support denial of leave to amend, it was the only reason cited in Swanson v. United States, supra. Delay is equally important in this case, which has already been appealed and decided against the petitioner. A review of the arguments for rehearing in Grassi demonstrate that the issues which petitioner now raises could have been raised years ago. This factor strongly favors the respondent, and is enough in itself to deny petitioner's motion.
d. Bad Faith or Dilatory Motive
The court does not believe that the petitioner has acted in bad faith or with the intention of delaying these proceedings. This factor does not favor either the petitioner or the respondent.
e. Failure of Past Amendments
This factor does not apply, although the court does note that these APA issues could have been raised and developed much earlier in the case.
CONCLUSION
Review of all of the factors for determining whether to grant leave to amend shows that they weigh heavily in favor of the respondent. Therefore, petitioner's motion (#26) to amend his petition is denied.