Opinion
98-CV-1845.
October 26, 1999
RICHARD BAGAROZY, Petitioner, Pro Se, F.C.I. Ray Brook, Ray Brook, New York.
CHARLES E. ROBERTS, Assistant United States Attorney, Syracuse, New York.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Frederick J. Scullin, Jr., United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
This habeas corpus petition, brought pursuant to 28 U.S.C. § 2241, was filed on November 30, 1998. On March 15, 1999, respondent filed a motion to dismiss the petition pursuant to Rule 12(b)(1) and a supporting memorandum of law. (Dkt. Nos. 5-6). Petitioner filed a traverse on March 22, 1999; an addendum to his "original motion and traverse" on August 30, 1999; and a "second addendum to [his] original motion and traverse" on September 14, 1999. (Dkt. Nos. 10, 16 and 17). Presently before the court is respondent's motion to dismiss.
When ruling on a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1), a court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings. Jones v. Newman, 1999 WL 493429, *5 (S.D.N.Y. June 30, 1999) (citing Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215 (1992)). Respondent has submitted affidavits by three individuals, each with attachments; one by Ann Gilbertson, Ph.D., Drug Program Coordinator at F.C.I. Ray Brook; one by William Dempsey, Inmate Classification Specialist; and one by Howard Losiewicz, Bureau of Prisons Paralegal Specialist. (Dkt. Nos. 7-9). In addition to his original petition, petitioner has submitted a traverse, an addendum and a second addendum.
Petitioner raises four grounds for habeas corpus relief. Petitioner claims that:
1) he is being denied access to the 500-hour drug program and accompanying one year sentence reduction on the grounds that his current conviction is a "crime of violence";
2) he is being denied access to the 500-hour drug program and the accompanying one year sentence reduction because his prior conviction included "violence";
3) the classification of his crime as a crime of violence for the purpose of program statement 5110.12 (notification of release to state and local law enforcement officials), is inconsistent with his crime not being classified as a crime of violence for purposes of the early release program; and,
4) his pre-commitment status was improperly classified and he is being denied a three point reduction in his classification point total.
Respondent submits that the action should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. Respondent further claims that petitioner did not exhaust available administrative remedies regarding Counts Two and Three; that Grounds One and Two must be denied as there has been no determination that petitioner is eligible to participate in the Residential Drug Treatment Program; and that the petitioner's fourth ground for relief should be denied because the Federal Bureau of Prisons appropriately used the petitioner's pre-sentence investigation report to make a classification decision as to his pre-trial status.
Subsequent to the filing of this habeas corpus petition, a determination was made by the Bureau of Prisons (hereinafter "B.O.P.") that the petitioner does not qualify for the Residential Drug Program because he does not have a drug problem. See Pet'r addendum, filed August 30, 1999. (Dkt. No. 16).
For the following reasons, this court recommends that respondent's motion to dismiss be granted.
1. Facts
On December 6, 1995, the petitioner was sentenced in the U.S. District Court for the District of New Jersey to an aggregate 121-month sentence for convictions of conspiracy ( 18 U.S.C. § 371), sexual exploitation of children ( 18 U.S.C. § 2251(a)), pornography ( 18 U.S.C. § 2252(a)(1)), receipt, distribution and reproduction of child pornography ( 18 U.S.C. § 2252(a)(2)), and possession of child pornography ( 18 U.S.C. § 2252(a)(4) (B)). Petitioner has a projected release date of September 25, 2002. See Respondent's Motion to Dismiss, at 3.
Petitioner transported across state lines a videotape depicting himself and two children under the age of 18 engaged in sexual activities and smoking marijuana. Petitioner was also convicted of transporting across state lines a set of sexually explicit slides of children. See Ex. Nos. 1-7.
On April 13, 1998, while incarcerated at F.C.I. Ray Brook, petitioner requested to enroll in the "drug program that allows an inmate to deduct one year from his sentence." See Ex. No. 14. Dr. Gilbertson replied that referrals for this program could only be made for inmates who were within 36 months of release, and who have a documented drug problem. Id. Dr. Gilbertson indicated that it was her belief that the petitioner's current offense and past convictions would render him ineligible for the sentence reduction.
Under 18 U.S.C. § 3621, the B.O.P. is authorized to offer an early release incentive to certain federal prisoners in order to encourage them to enroll in its voluntary drug abuse treatment program. The statute provides that the period a prisoner convicted of a non-violent 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)(B).
In his inmate request dated April 20, 1998, the petitioner acknowledged that he had to be within 36 months of release for the drug program, but sought to resolve "in advance" 1) whether he qualified for the program; and 2) whether he was eligible for early release. See Ex. No. 15. Dr. Gilbertson responded that interviews for eligibility are scheduled according to release dates and suggested that the petitioner ask his case manager whether he would qualify for a sentence reduction.
On May 13, 1998, the petitioner submitted an inmate request to the unit manager. Petitioner stated that he would apply for the drug program when he was within 36 months of his release date, and he inquired whether his current offense would disqualify him from receiving a sentence reduction. His unit manager responded that his case did not qualify for a sentence reduction. See Ex. No. 16. Petitioner filed an inmate request on May 20, 1998, challenging the unit manager's determination, which the petitioner assumed had been based on his crime being considered a crime of violence. See Ex. No. 17. Referring to Program Statement 5330.10, dated 10/9/97, and 6.1.1 (a.4), the case manager responded that the petitioner was not eligible for early release based on his 1985 conviction for sodomy.
Pursuant to 18 U.S.C. § 3621, the B.O.P. promulgated regulations regarding eligibility for the sentence reduction. 28 C.F.R. § 550.58 (amended October 9, 1997). Program Statement 5330.10 reiterates these rules and the relevant section provides as follows:
6.1 An inmate who was sentenced to a term of imprisonment pursuant to the provisions of 18 U.S.C. Chapter 227, Subchapter D for a non-violent offense, and who is determined to have a substance abuse problem, and successfully completes a residential drug abuse treatment program during his or her current commitment may be eligible, in accordance with paragraph (a) of this section, for early release by a period not to exceed 12 months.
6.1.1 (a) Additional early release criteria.
1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release:
[. . .]
(iv) inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses;
(v) inmates who are not eligible for participation in a community based program as determined by the Warden on the basis of his or her professional discretion;
(vi) inmates whose current offense is a felony;
(A) That has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or
(B) That involved the carrying, possession or use of a firearm or other dangerous weapon or explosives [. . .] or
(C) That by its nature or conduct, presents a serious potential risk of physical force against the person or property of another, or
(D) That by its nature or conduct involves sexual abuse offenses committed upon children.
In his request for an administrative remedy submitted on June 2, 1998, the petitioner pursued his request to participate in the Residential Drug Treatment Program. He challenged the validity of his case manager's ruling on the grounds that violence was never alleged in any of the crimes for which he was convicted, and he claimed that he did qualify for the program because the "videotape that was the subject of my federal conviction was made while I was high on marijuana." See Ex. Nos. 18-20.
The warden responded that the petitioner's projected release date was four years away, and that the screening process would begin 36 months prior to his release date. The warden reserved rendering a decision on eligibility for early release until that time, and he denied the petitioner's request to participate in the drug program. The warden noted that the petitioner's instant offense was properly classified as a crime of violence under the Violent Crime Control and Law Enforcement Act of 1994. See Ex. No. 21.
Petitioner appealed to the Regional Director, claiming that the warden denied his request to participate in the 500-hour drug program on the grounds that he was not within three years of release, and because his instant offense was classified as a crime of violence. See Ex. No. 22. The Regional Director denied the appeal on the grounds that the petitioner had not yet been screened for admission. The Regional Director informed the petitioner that "at the appropriate time, staff will consider your eligibility for early release by determining whether you have been convicted of a crime of violence or an offense identified in the Director's discretion sufficient to preclude you from receiving certain program benefits such as early release." See Ex. No. 24.
On September 9, 1998, the petitioner appealed claiming that the Regional Director had not addressed the merits of the argument, i.e. whether the warden erroneously found that his crime constituted a crime of violence. See Ex. No. 25. The Administrator of National Inmate Appeals denied the petitioner's appeal, reiterating that the petitioner had not been screened for eligibility and that no finding had been made that he was ineligible for a one year sentence reduction on the grounds that he was convicted of a "crime of violence." See Ex. No. 27. The Administrator clarified that the warden had not determined that the petitioner's crime was a crime of violence for purposes of early release, but had been correctly classified as a "crime of violence" for the purposes of Program Statement 5110.12 (Notification of Release to State and Local Law Enforcement Officials). The Administrator stated that such classification has no bearing on eligibility for early release pursuant to 18 U.S.C. § 3621(e)." Id.
2. Denial of Access to the 500-Hour Drug Program and the Accompanying One-Year Sentence Reduction
In Grounds One and Two of the petition, the petitioner claims that he is being denied access to the 500-hour drug program and the accompanying one year reduction of sentence because 1) his current conviction has been improperly classified as a crime of violence; and 2) his prior conviction is improperly being considered to have involved violence.
In order to be eligible for the Residential Drug Treatment Program, an inmate must have a verifiable documented drug abuse problem. 28 C.F.R. § 550.56(a)(1). At the time the petitioner filed the application for habeas corpus relief, the B.O.P. had not yet made this determination. Petitioner was repeatedly advised that he would be screened for eligibility for early release when he was within 36 months of his projected release date. As is evident from the petitioner's appeals, the B.O.P. reserved ruling on the petitioner's eligibility for a sentence reduction until he was eligible to apply for the drug program.
Subsequently, the B.O.P. determined that the petitioner was not eligible for participation in the drug program on the grounds that he did not have a documented drug problem. See Pet'r Addendum dated August 26, 1999. Since the petitioner does not qualify for participation in the drug program, Grounds One and Two of the petition have become moot. Therefore, respondent's motion to dismiss Grounds One and Two of the petition should be granted.
Petitioner claims he is eligible for the program because he was "high on marijuana" when he made the videotape. However, this court notes that the petitioner's custody classification form contains the following entry: "Drug/Alc Involv. (4) Never." See Ex. No. 30.
In his addendum, the petitioner asks this court to conclude that he has a documented drug problem and therefore, qualifies for participation in the Residential Drug Program. This claim was not raised in the initial petition but even had it been raised, it would fail. The Bureau of Prisons has full discretion for determining which inmates enter the drug treatment program. Under 18 U.S.C. § 3621(b) the Bureau "shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse". (emphasis added). See also, 18 U.S.C. § 3621(e)(5)(B)(i) (The term "eligible prisoner" means a prisoner who is determined by the Bureau of Prisons to have a substance abuse problem). Prisoners have no statutory or constitutional entitlement sufficient to invoke due process for prisoner classification and eligibility for rehabilitative programs in the federal system. Congress has given federal prison officials full discretion to control these conditions of confinement. Moody v. Daggett, 429 U.S. 78, 88, n. 9, 97 S.Ct. 274, 279, n. 9, 50 L.Ed.2d 236 (1976) (citing 18 U.S.C. § 4081); Pugliese v. Nelson, 617 F.2d 916, 923 (2d Cir. 1980).
Furthermore, 18 U.S.C. § 3625 expressly provides that those sections of the Administrative Procedure Act which govern judicial review of agency action do not apply to "any determination, decision, or order under this subchapter." (Subchapter c). Thus, the court would lack subject matter jurisdiction to review the B.O.P.'s determination that the petitioner was not eligible for the drug program because he does not have a documented drug problem.
3. Classification of Conviction as a Crime of Violence For Purposes of Program Statement 5110.12 (Notification of Release to State and Local Law Enforcement Officials)
In Ground Three, the petitioner claims that the National Appeals Administrator conceded that his crime was not a crime of violence for purposes of the residential treatment program, and that such determination is inconsistent with his crime being classified as a "crime of violence" for purposes of program statement 5110.12 (Notification of Release to State and Local Law Enforcement Officials). Petitioner asks this court to rule that his crimes are not crimes of violence for either purpose. Respondent interprets this ground as a claim that the Federal Bureau of Prisons must universally apply a violent offense classification to all program decisions. This court interprets the petitioner's claim as limited to his classification for early release and notification purposes.
As an initial matter, the petitioner has misinterpreted the Administrator's decision as a "concession" that his conviction does not preclude him from the drug treatment program. The National Appeals Administrator clearly stated that the petitioner's eligibility for early release pursuant to 18 U.S.C. § 3621(e) would be made when he was within 36 months of release. She then clarified that the warden's determination was not that the petitioner's crime was a "crime of violence" for purposes of early release, but had indicated that it had been classified as a "crime of violence" for purposes of program statement 5110.12 (Notification of Release to State and Local Law Enforcement).
Petitioner wrote as follows:
I am happy that the National Administrator now concedes that my conviction does not preclude me from the drug program and I ask the Court to confirm this so that there are no more "changes" in position on this matter. I also ask the Court to determine that if there was no "violence" for purposes of the drug program, then there was no violence for purposes of "notification of release."
See Petition, at p. 3.
Even if this court were to assume that the administrator's response exhausts a claim regarding the petitioner's classification for notification purposes, the claim would fail. Habeas corpus relief is available if a prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Whether the petitioner's crime was improperly classified as a claim of violence for purposes of notification to state and local law enforcement does not implicate custody concerns. In any event, classification decisions are left to the full discretion of the B.O.P. See e.g., Pugliese, 617 F.2d at 923. Thus, Ground Three should be dismissed.
Petitioner had never had challenged his classification for purposes of notification of release to state and local law enforcement. This classification was first mentioned by the National Appeals Administrator in the last stage of the administrative appeal process concerning petitioner's claim regarding eligibility for early release.
4. Pre-commitment Status
Program Statement 5200.06 provides that a prisoner shall be classified as having a pre-commitment status of "own recognizance" and receive a three-point reduction in overall score, if the "[i]ndividual was released prior [to] or during the trial period without posting bail or incurring any financial obligation or other obligations to ensure appearance." In his fourth ground for relief, petitioner claims that he was improperly denied a three-point reduction in his classification point total as he was released on his own recognizance prior to trial.
Petitioner seeks the reduction because his classification is one point too high for a "low" status which would permit him to request a transfer to a "low" security facility closer to his mother's home. See Ex. No. 33, at 2.
After seven months of incarceration, the petitioner signed a non-surety appearance bond in which he agreed to pay $50,000 if he failed to appear for his court appearances. See Ex. No. 28. Petitioner argues that signing a non-surety bond satisfies the requirements for the point reduction because he never incurred any actual expense to secure the bond. Petitioner is thus not challenging the B.O.P.'s program statement itself, but the BOP's interpretation of the statement as it applies to him.
Petitioner acknowledged that he was initially placed in pre-trial detention but he was released on the non-surety bond after several bail hearings. See Ex. No. 32, at 2. Petitioner was arrested in June of 1994 and released on January 10, 1995. See Respondents Memorandum of Law, at 6, and n. 1.
Petitioner first argued that he was entitled to the point reduction because it is "rare" for prisoners to be released on their own recognizance merely by signing a bond, without posting bail or collateral. See Ex. No. 35. He then argued it was "customary" to have a non-surety personal recognizance bond when an individual is released. Petitioner requested statistics from the B.O.P. as to the numbers of individuals released without posting collateral.
In response to the petitioner's request for administrative remedy, the warden found that execution of a non-surety bond constituted a financial obligation, disqualifying him from receiving a downward point adjustment. See Ex. No. 33. Both the Regional Director and the Administrator of National Inmate Appeals denied the petitioner's appeals, agreeing that petitioner had entered into a financial obligation by agreeing to pay $50,000 if he failed to appear. See Ex. No. 36.
The BOP has full authority to promulgate rules governing the treatment and classification of prisoners. Moody v. Daggett, 429 U.S. 78, 88, n. 9, 97, S.Ct. 274, 279, n. 9, 50 L.Ed.2d 236 (1976) (citing 18 U.S.C. § 4081); Pugliese v. Nelson, 617 F.2d at 923, and n. 5. The BOP's broad discretionary power extends equally to the agency's interpretations of the classification rules. See Gissendanner v. Menifee, 975 F. Supp. 249, 251 (W.D.N.Y. 1997) ("The B.O.P.'s discretion in making classification decisions is virtually unfettered."). See also, Rosenberg v. Meese, 622 F. Supp. 1451, 1470 (S.D.N.Y. 1983); Smith v. U.S. Bureau of Prisons, 1996 WL 43556, (D.D.C. Jan. 31, 1996) (citing Reno v. Koray, 515 U.S. 50, 60, 115 S.Ct. 2021, 2027, 132 L.Ed. 46 (1995) and Finocchiaro v. James, 1988 WL 140865, *4, (S.D.N.Y. Dec. 21, 1988)). This court finds no abuse of discretion in the BOP's interpretation of its program statement. Therefore, Ground Four should be dismissed.
18 U.S.C. § 4081 provides as follows:
The Federal penal and correctional institutions shall be so planned and limited in size as to facilitate the development of an integrated system which will assure the proper classification and segregation of Federal prisoners according to the nature of the offenses committed, the character and mental condition of the prisoners, and such other factors as should be considered in providing an individualized system of discipline, care, and treatment of the persons committed to such institutions.
WHEREFORE, based on the findings in the above Report-Recommendation, it is
RECOMMENDED that the motion to dismiss be GRANTED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the Office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.