Opinion
CV-22-0260-TUC-SHR (EJM)
08-15-2023
Andrew J. Johnston, Petitioner, v. D. Colbert, Warden, Respondent.
REPORT AND RECOMMENDATION
Eric J. Malkovich, United States Magistrate Judge.
Currently pending before the Court is Petitioner Andrew J. Johnson's First Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Amended Petition”) (Doc. 42). Respondent has filed a Return and Answer (“Answer”) (Doc. 24), and Petitioner replied (Doc. 25). The Amended Petition is ripe for adjudication. Also pending before the Court is Petitioner's Motion for Immediate Injunctive and/or Declaratory Relief (Doc. 29).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Amended Petition (Doc. 42) and the Motion for Immediate Injunctive and/or Declaratory Relief (Doc. 29).
I. BACKGROUND
At the time Petitioner filed his Petition (Doc. 1), Petitioner was an inmate incarcerated at the United States Penitentiary in Tucson, Arizona (“USP-Tucson”). See Petition (Doc. 1). Currently, Petitioner is incarcerated at the Federal Correctional Institution in Tucson Arizona (“FCI Tucson”). See Fed. Bureau of Prisons (“BOP”) Inmate Locater, https://www.bop.gov/inmateloc/ (last visited August 4, 2023). Petitioner is serving a 168-month sentence for bank robbery in violation 18 U.S.C. § 2113. See Response (Doc. 24), Hubbard Decl. (Exh. “A”), Inmate Data (Attach. “1”) at 13; Response (Doc. 24), Hubbard Decl. (Exh “A”), United States v. Johnston, No. 1:17-CR-00517(1), Judgment in a Criminal Case (Attach. “2”) at 20-21. Petitioner's projected release date is April 15, 2028. See Fed. BOP Inmate Locater, https://www.bop.gov/inmateloc/ (last visited August 4, 2023). On December 27, 2021, Petitioner filed a First Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody. See Amended Petition (Doc. 42). Petitioner challenges the BOP's Program Statement 7310.04 asserting that barring him from receiving placement in a Community Corrections Center (“CCC”) or Residential Reentry Center (“RRC”) “until 11-19 months prior to the projected release date and/or home confinement 6 months prior to the projected release date” violates 18 U.S.C. §§ 3621(b) & 3634(d)(4)(A). Id. at 5. Petitioner further alleges that 28 C.F.R. § 523.44(b)(2) and BOP Program Statement 5410.01 improperly require “a second layer of ‘eligibility to apply' time credits that is contingent upon petitioner having a low or minimum recidivism risk score” in contradiction “to the plain language of § 3634(d)(4)(A).” Id. at 6. Petitioner requests this Court issue an order invalidating Program Statement 7310.04 § 8, 28 C.F.R. § 523.44(b)(2), § 3624(c)(1)-(2), and Program Statement 5410.01, as well as “vacating Respondent's designation of Petitioner as ‘ineligible to apply.'” Id. at 9.
Unless otherwise noted, page citations refer to the Case Management/Electronic Case Files (“CM/ECF”) page number for ease of reference.
II. THE INSTANT HABEAS
A. Jurisdiction-In General
“Federal courts are always ‘under an independent obligation to examine their own jurisdiction,' . . . and a federal court may not entertain an action over which it has no jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). “Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court.” Id. at 864. Therefore, before proceeding to any other issue a court must establish whether a habeas petition is filed pursuant to § 2241 or § 2255 to determine whether jurisdiction is proper. Id. at 865.
Here, Petitioner does not claim that the sentencing court imposed an illegal sentence; rather he seeks relief with respect to the application of First Step Act time credits. As such, Petitioner is challenging the manner, location, or condition of the execution of his sentence. See e.g., Rogers v. United States, 180 F.3d 349 (1st Cir. 1999) (Section 2241 petition is appropriate vehicle to challenge the correctness of a jail-time credit determination, once administrative remedies have been exhausted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc), (“[c]hallenges to the validity of any confinement or to the particulars affecting its duration are the province of habeas corpus[.]” (quoting Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004)); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (a prisoner's challenge to the “manner in which his sentence was executed . . . [is] maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”). Such a challenge must be brought pursuant to § 2241 in the custodial court. At the time of filing the Petition, Petitioner was incarcerated at USP-Tucson in Arizona. Accordingly, this Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990).
B. Exhaustion
1. In General
The Ninth Circuit Court of Appeals has stated:
[28 U.S.C. § 2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. [Footnote omitted.] However, we require, as a prudential matter, that habeas petitioners exhaust
available judicial and administrative remedies before seeking relief under § 2241.Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). “The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement.” Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55, 115 S.Ct. 2021, 2023-24, 132 L.Ed.2d 46 (1995). “Nevertheless, ‘[p]rudential limits like jurisdictional limits and limits on venue, are ordinarily not optional.'” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (alterations in original) (quoting Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006)).
“Courts may require prudential exhaustion if ‘(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.'” Id. (quoting Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). “When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (citations omitted). Exhaustion may be excused if pursuing an administrative remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993).
If a prisoner is unable to obtain an administrative remedy because of his failure to appeal in a timely manner, then the petitioner has procedurally defaulted his habeas corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis, Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)). If a claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647-48, 91 L.Ed.2d 397 (1986) (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906-08 (9th Cir. 1986) (cause and prejudice test applied to pro se litigants).
2. Exhaustion in the Instant Case
Here, Respondent did not comment regarding Petitioner's exhaustion of his administrative remedies. Petitioner urges that “no administrative remedies can be exhausted because PS 7310.04 § 8, PS 5410.01, page 14-15, 28 CFR § 523.44(b)(2) are official BOP policy statements subject to the futility exception. Amended Petition (Doc. 42) at 4. The Ninth Circuit Court of Appeals has recognized that:
the requirement of exhaustion of remedies [is to] aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings.Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). In this case, the factual record is adequately developed, and nothing in the record suggests that further administrative review would aid judicial review. The Court will consider the Amended Petition (Doc. 42) despite Petitioner's failure to exhaust.
C. Ground One: Futility Exception
Petitioner asserts that “[u]nder Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) and Carr v. Saul, 209 LED 2d 376, 386 (2021), no administrative remedies can be exhausted because PS 7310.04 § 8, PS 5410.01, Page 14-15, 28 CFR § 523.44(b)(2) are official BOP policy statements subject to the futility exception.” Amended Petition (Doc. 42) at 4. This claim does not challenge the manner, location, or condition of the execution of Petitioner's sentence. See Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc), (“[c]hallenges to the validity of any confinement or to the particulars affecting its duration are the province of habeas corpus[.]” (quoting Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004)). Rather it argues against administrative exhaustion in this case. As such, it is non-cognizable in this habeas proceeding and should be dismissed.
D. Ground Two: Invalidation of Program Statement 7310.04 § 8 and 18 U.S.C. §3624(c)(1)-(2)
Petitioner asserts that “[u]nder Rodriguez v. Smith, 541 F.3d 1180, 1187 (9th Cir. 2008), PS 7310.04 § 8 should be invalidated as it exceeds the plain language of 18 U.S.C. § 3621(b) and § 3632(d)(4)(A), and § 3624(c)(1)-(2) should be invalidated per § 3632(d)(4)(A)'s plain language.” Amended Petition (Doc. 42) at 5. Petitioner urges that “[b]oth PS 7310.04 § 8 and § 3624(c)(1)-(2) place an ultra vires ceiling on time credits in violation of § 3621(g) and § 3632(d)(4)(A)'s plain language.” Amended Petition (Doc. 42) at 5.
1. Relevant Law and Policies
a. Housing Designations and the Second Chance Act
Congress has delegated the “authority to designate the place of an inmate's imprisonment” to the Bureau of Prisons. Rodriguez v. Smith, 541 F.3d 1180, 1182 (9th Cir. 2008); 18 U.S.C. § 3621(b). Section 3621(b), Title 18, United States Code, provides:
The Bureau of Prisons shall designate the place of the prisoner's imprisonment, and shall, subject to bed availability, the prisoner's security designation, the prisoner's programmatic needs, the prisoner's mental and medical health needs, any request made by the prisoner related to faithbased needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner's primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence. The Bureau shall, subject to consideration of the factors described in the preceding sentence and the prisoner's preference for staying at his or her current facility or being transferred, transfer prisoners to facilities that are
closer to the prisoner's primary residence even if the prisoner is already in a facility with in 500 driving miles of that residence. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence-
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. The Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse. Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the Bureau under this section to determine or change the place of imprisonment of that person. Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.18 U.S.C. § 3621(b). “In the context of [residential re-entry centers (“RRCs”)], this section governs the BOP's authority in cases where a prisoner who has more than a year left to serve of his or her prison sentence requests a transfer to such a facility.” Sacora v. Thomas, 628 F.3d 1059, 1062 (9th Cir. 2010).
“Congress also charged the BOP with preparing prisoners for reentry to the community during the final months of their terms of imprisonment.” Id. (citing 18 U.S.C. § 3624(c)). The Second Chance Act of 2007 (“SCA”), Pub.L. No. 110-199, 122 Stat. 657 (2008) (codified at 42 U.S.C. §§ 17501-17555) amended Section 3624(c). Congress's purpose in enacting the SCA includes “assist[ing] offenders reentering the community from incarceration to establish a self-sustaining and law-abiding life by providing sufficient transitional services for as short of a period as practicable, not to exceed one year, unless a longer period is specifically determined to be necessary by a medical or other appropriate treatment professional[.]” 42 U.S.C. § 17501(a)(5) (emphasis added). As amended, Section 3624(c), Title 18, United States Code, provides:
(c) Prerelease custody .
(1) In general.-The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility.
(2) Home confinement authority.-The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.
(3) Assistance.-The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during prerelease custody under this subsection.
(4) No limitations.-Nothing in this subsection shall be construed to limit or restrict the authority of the Director of the Bureau of Prisons under section 3621.
(5) Reporting.-Not later than 1 year after the date of the enactment of the Second Chance Act of 2007 (and every year thereafter), the Director of the Bureau of Prisons shall transmit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report describing the Bureau's utilization of community corrections facilities. Each report under this paragraph shall
set forth the number and percentage of Federal prisoners placed in community corrections facilities during the preceding year, the average length of such placements, trends in such utilization, the reasons some prisoners are not placed in community corrections facilities, and number of prisoners not being placed in community corrections facilities for each reason set forth, and any other information that may be useful to the committees in determining if the Bureau is utilizing community corrections facilities in an effective manner.
(6) Issuance of regulations.-The Director of the Bureau of Prisons shall issue regulations pursuant to this subsection not later than 90 days after the date of the enactment of the Second Chance Act of 2007, which shall ensure that placement in a community correctional facility by the Bureau of Prisons is-
(A) conducted in a manner consistent with section 3621(b) of this title;
(B) determined on an individual basis; and
(C) of sufficient duration to provide the greatest likelihood of successful reintegration into the community.18 U.S.C. § 3624(c). “Accordingly, after enactment of the SCA, § 3624 governs the designation of prisoners to RRCs for the final months of their sentences.” Sacora, 628 F.3d at 1062.
“On April 14, 2008, five days after the SCA went into effect, BOP officials issued a memorandum . . . explaining the changes to the law and setting forth guidance to BOP staff about how to administer the new law.” Id. at 1063. “The April 14 Memorandum details the relevant statutory changes made by the SCA, explains how BOP staff should make placement decisions in light of the statutory changes, and provides a redline of 18 U.S.C. §§ 3621 and 3624(c) demonstrating those changes.” Id. “The memorandum advises that ‘[w]ith minor adjustments[,] . . . staff should make inmates' pre-release RRC placement decisions on an individual basis using current bureau policy, Program Statement No. 7310.04 ....” Sacora, 628 F.3d at 1063 (alterations in original). “The memorandum goes on to note that because the SCA has increased the maximum allowable pre-release community corrections placement period to 12 months, BOP staff must review inmates for pre-release community corrections placements earlier than before, 17-19 months prior to their projected release dates.” Id. “Further, it reminds staff that inmates must be individually considered for pre-release placements in community corrections facilities and that this individual consideration must be based on the criteria set forth in § 3621(b).” Id.
b. Program Statement 7310.04
Program Statement 7310.04 relates to Community Corrections Center (“CCC”) Utilization and Transfer Procedure. Program Statement 7310.04, available at https://www.bop.gov/policy/progstat/7310004.pdf (last visited August 8, 2023). Its purpose is “[t]o provide guidelines to staff regarding the effective use of Community Corrections Centers[.]” Id. Section 8 is titled “RELEASE PLAN.” Id. at § 8. This section directs that “[s]taff shall begin release planning at an inmate's first team meeting, normally the initial classification, and shall continue throughout the inmate's confinement.” Id. “Planning early in an inmate's period of confinement is necessary to ensure release preparation needs are identified and appropriate release preparation programs are recommended.” Id. at § 8(a). Furthermore, “[p]reliminary decisions regarding eligibility for CC Programs are to be made well in advance of the last year of confinement.” Id. at § 8(b). Program Statement 7310.04 directs that “a final and specific release preparation plan, including a decision as to CCC referral, is normally established at a team meeting no later than 11 to 13 months before an inmate's projected release date.” Id. at § 8(c). As noted in Section II.D.1.a., supra, the April 14, 2008, memorandum following enactment of the SCA directs the “BOP staff must review inmates for pre-release community corrections placements earlier than before, 17-19 months prior to their projected release dates.” Sacora v. Thomas, 628 F.3d 1059, 1064 (9th Cir. 2010). “Further, it reminds staff that inmates must be individually considered for pre-release placements in community corrections facilities and that this individual consideration must be based on the criteria set forth in § 3621(b).” Id. Accordingly, the memorandum instructs that “the Bureau's categorical timeframe limitations 28 C.F.R. §§ 570.20 and 570.21, are no longer applicable, and must no longer be followed.” Answer (Doc. 24), Mem. for CEOs 4/14/2008 (Exh. “B”) (Doc. 24-2) at 3 (emphasis in original).
CCCs and Residential Re-entry Centers (“RRCs”) are commonly known as “halfway houses.” See Rodriguez v. Smith, 541 F.3d 1180, 1181 n.1 (9th Cir. 2008). The current term is RRC. See Fed. BOP, Completing the Transition, available at https://www.bop.gov/about/facilities/residentialreentrymanagementcenters.jsp (last visited August 8, 2023).
c. First Step Act of 2018
On December 21, 2018, the First Step Act of 2018 (“FSA”) was enacted into law. Pub. L. No. 115-391, 132 Stat. 5194. “The act was the culmination of a bipartisan effort to improve criminal justice outcomes, as well as to reduce the size of the federal prison population while also creating mechanisms to maintain public safety.” Fed. BOP, An Overview of the First Step Act, available at https://www.bop.gov/inmates/fsa/overview.jsp (last visited August 10, 2023). “As part of the FSA, Congress directed the BOP to implement reentry initiatives, including programming and programming incentives, good-time credit, and compassionate release opportunities.” Mars v. Heisner, 2023 WL 4977335 (D. Ariz. June 26, 2023). Congress further directed the Attorney General to develop a risk and needs assessment system, to be used to determine the recidivism risk of each prison at intake, assess and determine a prisoner's risk of violent or serious misconduct, determine the type and amount of evidence-based recidivism reduction program appropriate for each prisoner, perform periodic recidivism risk reassessment of each prisoner, reassign prisoners to the appropriate evidence-based recidivism reduction programs or productive activities, determine when to provide incentives and rewards for participation in evidence-based recidivism reduction programs or productive activities, determine when a prisoner is ready to transfer into prerelease custody or supervised release in accordance with section 3624, and determine the appropriate use of audio technology for program course materials. 18 U.S.C. § 3632(a). “Any inmate sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense[,] [except those serving a term of imprisonment for an offense specified in 18 U.S.C. § 3632(d)(4)(D),] or any person in the custody of the Bureau, is eligible to earn FSA Time Credits[.]” 28 C.F.R. § 523.41(d).
An eligible prisoner “shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities[,]” and can earn additional 5 days of time credits per every 30 days if they have been determined by the BOP to be at a minimum or low risk for recidivating. 18 U.S.C. § 3632(d)(4) (emphasis added). “Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release[,] [and] [t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). Section 3624(g) defines an “eligible prisoner” as one who (A) has earned time credits under the risk and needs assessment system; (B) “has shown through the periodic risk assessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment”; (C) “has had the remainder of the prisoner's imposed term of imprisonment computed under applicable law”; and (D) has either (I) “been determined under the System to be a minimum or low risk to recidivate pursuant to the last 2 reassessments”; or (II) “has had a petition to be transferred to prerelease custody or supervised release approved by the warden of the prison,” if the warden determined that (aa) the prisoner would not be a danger to society if transferred to prerelease custody; (bb) the prisoner had made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities; and (cc) the prisoner is unlikely to recidivate. 18 U.S.C. § 3624(g)(1)(A)-(D).
The BOP may apply FSA Time Credits toward prerelease custody or early transfer to supervised release only if an eligible inmate has: (1) “Earned FSA Time Credits in an amount that is equal to the remainder of the inmate's imposed term of imprisonment”; (2) “Shown through the periodic risk reassessments a demonstrated recidivism risk reduction or maintained a minimum or low recidivism risk, during the term of imprisonment”; and (3) Had the remainder of his or her imposed term of imprisonment computed under applicable law.” 28 C.F.R. § 523.44(b). In addition to satisfying these criteria, an inmate must (1) have maintained a minimum or low recidivism risk through his last two risk and needs assessments; or (2) had a petition to be transferred to prerelease custody or supervised release approved by the Warden before the BOP may apply earned FSA Time Credits toward the inmate's prerelease custody. 28 C.F.R. § 523.44(c). Prior to approving an inmate's petition to transfer, the Warden must find that the prisoner (i) would not be a danger to society if transferred to prerelease custody or supervised release; (ii) has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities; and (iii) is unlikely to recidivate. 28 C.F.R. § 523.44(c)(2). Under the FSA, eligible inmates who have earned enough credits to apply to prelease custody to an RRC are not limited to the 12-month maximum RRC term set out in the SCA. 18 U.S.C. § 3624(g)(10).
2. Jurisdiction and Applicability of Rodriguez v. Smith
Congress has delegated to the BOP the responsibility of “the management and regulation of all Federal penal and correctional institutions.” 18 U.S.C. § 4042(a)(1). The Administrative Procedure Act (“APA”) “provides a cause of action for persons ‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,' 5 U.S.C. § 702, but withdraws that cause of action to the extent that the relevant statute ‘preclude[s] judicial review' or the ‘agency action is committed to agency discretion by law,' [5 U.S.C.] § 701(a).” Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) (alterations in original). In Section 3625, Title 18, United States Code, Congress has specified that “[t]he provisions of sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making of any determination, decision, or order under this subchapter.” 18 U.S.C. § 3625. Thus, “[t]he plain language of this statute specifies that the judicial review provisions of the APA, 5 U.S.C. §§ 701-706 do not apply to ‘any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624.” Reeb, 636 F.3d at 1227.
“To find that prisoners can bring habeas petitions under 28 U.S.C. § 2241 to challenge the BOP's discretionary determinations made pursuant to 18 U.S.C. § 3621 would be inconsistent with the language of 18 U.S.C. § 3625. Reeb, 636 F.3d at 1227. “[S]ubstantive decision[s] by the BOP . . . to grant or deny a sentence reduction for completion of the program[] [are] not reviewable by the district court.” Id. “[T]he federal courts[,] [however,] always retain jurisdiction to review colorable constitutional claims, even where Congress has otherwise foreclosed judicial review.” Lyle v. Sivley, 805 F.Supp. 755, 759 (D. Ariz. 1992).
Here, Petitioner relies on the Ninth Circuit Court of Appeals' decision in Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008) to assert that Program Statement 73104.04 § 8 and 18 U.S.C. § 3624(c)(1)-(2) should be invalidated. Petitioner's argument is without merit. In Rodriguez, the court of appeals considered whether “the BOP's categorical exercise of discretion as promulgated in 28 C.F.R. §§ 570.20 and 570.21 violate[d] Congress's intention regarding the statutory inmate placement and transfer considerations the BOP must undertake.” Rodriguez, 541 F.3d at 1181. In early 2005, these rules were promulgated based upon the BOP's recognition that “it generally has discretion under § 3621(b) to place an inmate in an RRC at any time[,] . . . [but] elected to exercise its discretion categorically to limit inmates' community confinement to the last ten percent of the prison sentence being served, not to exceed six months.” Rodriguez, 541 F.3d at 1183 (internal quotations and citations omitted). The court of appeals observed that “18 U.S.C. § 3621(b) . . . gives the agency discretion . . . This delegation of discretion, however, is cabined by further mandatory direction . . . to consider the five factors enumerated in the statute[.]” Rodriguez, 541 F.3d at 1186 (alterations in original, except last) (citations omitted). The court of appeals held that “[w]hile the BOP may exercise considerable discretion, it must do so using the factors the Congress has specifically enumerated.” Id. at 1187 (internal quotations and citations omitted).
As discussed in Section II.D.1.a., supra, the April 14, 2008 memorandum following enactment of the SCA “reminds staff that inmates must be individually considered for pre-release placements in community corrections facilities and that this individual consideration must be based on the criteria set forth in § 3621(b).” Sacora v. Thomas, 628 F.3d 1059, 1064 (9th Cir. 2010). As such, the memorandum further instructs that “the Bureau's categorical timeframe limitations 28 C.F.R. §§ 570.20 and 570.21, are no longer applicable, and must no longer be followed.” Answer (Doc. 24), Mem. for CEOs 4/14/2008 (Exh. “B”) (Doc. 24-2) at 3 (emphasis in original). These instructions correct the problem recognized in Rodriguez. The current procedures require an individualized determination regarding a prisoner's placement in an RRC. See id.
Petitioner's argument that 18 U.S.C. § 3624(c)(1)-(2) are invalidated by the plain language of 18 U.S.C. § 3632(d)(4)(A) similarly fails. The FSA allows prisoners who successfully complete evidence-based recidivism reduction programming or productive activities to earn time credits; however, time credits are only applied to eligible prisoners as defined in 18 U.S.C. § 3624(g). 18 U.S.C. § 3632(d)(4)(A)-(C). An eligible prisoner must have “shown through the periodic risk reassessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment.” 18 U.S.C. § 3624(g)(1)(B). In Section 3624(c)(1), Title 18, United States Code, Congress directed the Director of the Bureau of Prisons, “to the extent practicable, ensure that a prisoner serving a term or imprisonment spends a portion of the final moths of that term (not to exceed 12 months), under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.” 18 U.S.C. § 3624(c)(1). Congress further instructed that “[t]he authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.” 18 U.S.C. § 3624(c)(2). Congress's grant of authority to the Director of the BOP to place prisoners near the end of their term in RRCs does not conflict with a prisoner's ability to earn time credits under the FSA or to have them applied if he meets the eligibility requirements.
To the extent that Petitioner is challenging a substantive decision of BOP regarding placement in an RRC, this Court lacks jurisdiction to review the decision. Reeb, 636 F.3d at 1227. To the extent that Petition is attempting a constitutional claim, such a claim is without merit and shall be denied.
E. Ground Three: Application of Time Credits
Petitioner asserts that “[u]nder Rodriguez v. Smith, 541 F.3d 1180, 1187 (9th Cir. 2008), PS 5410.01, Page 14-15 and 28 CFR § 523.44(b)(2) should be invalidated as it exceeds the plain language of § 3632(d)(4)(A).” Amended Petition (Doc. 42) at 6. Petitioner further alleges that 28 C.F.R. § 523.44(b)(2) and BOP Program Statement 5410.01 improperly require “a second layer of ‘eligibility to apply' time credits that is contingent upon petitioner having a low or minimum recidivism risk score” in contradiction “to the plain language of § 3634(d)(4)(A).” Id. Petitioner's argument is without merit and shall be denied.
As explained in Section II.D.2., supra, Rodriguez v. Smith is not applicable here. Furthermore, Petitioner relies only on the portion of the FSA entitled “In general” regarding the earning of time credits, but fails to acknowledge that in the application of time credits toward prelease custody or supervised release, Congress directs the Director of BOP to transfer eligible prisoners as determined under 3624(g). 18 U.S.C. § 3632(d)(4)(C). The Bureau regulation that Petitioner seeks to invalidate mirrors the language set forth by Congress in 18 U.S.C. § 3624(g)(1)(A)-(C). As such, there is no conflict. Congress mandated any “second layer of eligibility” that Petitioner complains about. Further, to the extent that Petitioner believes that he should be entitled to the application of time credit, such an argument is also without merit. Petitioner has a high risk of recidivism at the time of his last assessment. See Answer (Doc. 24), Stangl Decl. (Exh. “C”), Petr.'s Individualized Needs Plan - Program Review 11/14/2022 (Attach. “1”). Accordingly, he does not meet the criteria of an eligible inmate. See 18 U.S.C. § 3624(g)(1)(B). Petitioner's claim shall be denied.
III. INJUNCTIVE RELIEF
Petitioner seeks injunctive relief to prohibit Respondent from allegedly “retaliating against petitioner in the form [of] transferring petitioner to a non-protective custody medium security prison[.]” Motion for Immediate Injunctive and/or Declaratory Relief (Doc. 29) at 1. Petitioner's habeas petition seeks relief with respect to the application of First Step Act time credits. As such, Petitioner is challenging the manner, location, or condition of the execution of his sentence. See e.g., Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc), (“[c]hallenges to the validity of any confinement or to the particulars affecting its duration are the province of habeas corpus[.]” (quoting Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004)). Petitioner's motion for injunctive relief (Doc. 29) is unrelated to his habeas petition and does not challenge either the duration or validity of his conviction or sentence, but rather asks the Court to intervene because, in his opinion, Respondent is changing where he is housed in retaliation for the filing of the instant habeas. This is a challenge to the conditions of his confinement which may only be raised in a § 1983 complaint. As such, Petitioner's motion (Doc. 29) will be denied.
VI. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Petitioner's First Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Amended Petition”) (Doc. 42) and DENYING Petitioner's Motion for Immediate Injunctive and/or Declaratory Relief (Doc. 29).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-22-0260-TUC-SHR.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.