Opinion
Civil No. 00-927-HA
January 10, 2001
OPINION AND ORDER
Petitioner Lynch has filed a pro se petition for issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Lynch is an inmate at the Federal Correctional Institution ("FCI") at Sheridan, Oregon. Lynch complains that the Bureau of Prisons ("BOP") found him ineligible for a one-year sentence reduction pursuant to 18 U.S.C. § 3621(e)(2)(B), which allows the BOP to grant federal inmates convicted of a nonviolent offense a one-year sentence reduction for the successful completion of a qualified drug-and-alcohol-abuse ("DAP") program. Cort v. Crabtree, 113 F.3d 1081, 1085 (9th Cir. 1997). This is the second habeas petition Lynch has filed challenging the BOP's denial of his eligibility for early release. See Lynch v. Hood, 99-cv-483-HA.
The BOP denied Lynch eligibility for early release because he had received a two-point sentencing enhancement for possession of a weapon. In his original petition Lynch, who was represented by counsel, successfully challenged the BOP's denial under the law of the circuit at that time, and respondent appealed. In Bowen v. Hood, 202 F.3d 211 (9th Cir. 2000), the Ninth Circuit effectively changed the law of the circuit, finding that the BOP's regulations and program statements used to deny inmates such as Lynch eligibility were valid. The Ninth Circuit issued its decision in Bowen while Lynch's case was on appeal. Respondent has moved the Ninth Circuit for summary reversal of this court's order in Lynch's original case. Lynch, disgruntled with this turn of events, has now filed a separate pro se petition in this case challenging the BOP's denial on other grounds. Specifically, he claims that the denial of his eligibility violated his plea agreement with the United State's Attorney and that he had a "contract" with the Government which allowed him to have the one-year sentence reduction.
Respondent has filed a motion to dismiss on the ground that Lynch already has one petition for habeas corpus pending regarding the BOP's action, and he is represented by counsel in that proceeding. (See Respondent's Memorandum at 4) (citing Local Rule 83.9(b) for the proposition that a party represented by an attorney cannot act except through the attorney). In his response Lynch indicates that his attorney would not file a second petition on his behalf. The court finds that even assuming Lynch's second pro se petition is proper, it must be dismissed on the merits.
First, a review of Lynch's agreement makes clear that the U.S. Attorney never promised Lynch he would be eligible for early release if he successfully completed a drug-and-alcohol program. (See Petitioner's Memorandum, Ex. A.) While the plea agreement states that the U.S. Attorney would recommend Lynch be sentenced at the bottom of the sentencing range, it also makes clear that the U.S. Attorney had no control over Lynch's ultimate sentence. (Id. at § 12.) Second, eligibility for early release is within the BOP's discretion. Bowen, 202 F.3d at 1218. The U.S. Attorney has no control over BOP placement or early-release decisions. Cf. id. Third, to the extent Lynch is implying that he "trade[d]" his participation in the program in exchange for the opportunity for early release, this court construes his argument to be one of "retroactivity." See Cort v. Crabtree, 113 F.2d 1081 (9th Cir. 1997). Under the anti-retroactivity principles announced in Cort, if the BOP renders an "actual decision" that an inmate is eligible for early release, the BOP is obligated to grant the inmate early release if the inmate successfully completes the program. It generally may not revoke the finding of eligibility once it has been granted. Id. at 1082. In this case the BOP provided Lynch with a form stating that he was eligible for early release, but it found petitioner eligible only because this court ordered it to do so. The BOP's notice to Lynch states, "Inmate is now 3621(e) eligible due to Court Order 99-483-HA." (Petitioner's Memorandum, Ex. E.) Thus, the BOP's notice of eligibility was solely a function of this court's original order requiring the BOP to grant Lynch eligibility. As a result of the Ninth Circuit's decision in Bowen, that order is likely to be reversed.
This court finds that the anti-retroactivity principles in Cort do not apply because the BOP granted Lynch eligibility only because it was ordered to do so by this court. Rules against retroactivity such as those in Cort are based on the premise that "settled expectations should not be lightly disrupted." Landgraf v. USI Film Products, 511 U.S. 266, 114 S.Ct. 1483, 1497 (1994). In this case Lynch could not have had "settled expectations" when this court's order requiring the BOP to grant him eligibility for early release was appealable, and respondent in fact appealed it. As a result, the court finds that the BOP is not prohibited from revoking Lynch's eligibility for early release if the Ninth Circuit reverses this court's original order.
Accordingly, respondent's motion to dismiss, (doc. 7), is granted. The petition for habeas corpus is denied with prejudice; however, petitioner's earlier case, Lynch v. Hood, 99-cv-483-HA, is not affected by this decision. This case is closed, and all pending motions are denied as moot.
IT IS SO ORDERED.