LEAL v. FCI LORETTO WARDEN

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT LEAL, )

Petitioner, Case No. 3:18-cv-219

V. Magistrate Judge Patricia L. Dodge

FCI LORETTO WARDEN,

Respondent.

MEMORANDUM!

For the reasons that follow, the Court will deny the petition for a writ of habeas corpus

(ECF No. 9) filed by federal prisoner Robert Leal (“Petitioner”) under 28 U.S.C.§ 2241.

IL Introduction

On November 18, 2013, the United States District Court for the Northern District of Ohio

sentenced Petitioner to a 100-month term of imprisonment on his conviction of Felon in

Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner is in the custody of the

Bureau of Prisons (“BOP”). When he filed his petition he was housed at FCI Loretto, which is

located within the territorial boundaries of the Western District of Pennsylvania. Therefore,

although some of the events in question in this case occurred when Petitioner was housed at FCI

Elkton, which is located in Lisbon, Ohio, he properly filed his petition with this Court. That is

because a federal prisoner must file his § 2241 habeas petition with his custodial court, which is

the federal district court in the district in which the prisoner is incarcerated. Bruce v. Warden

‘In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily

consented to have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a

final judgment.

Lewisburg USP, 868 F.3d 170, 178 (3d Cir. 2017). The Respondent in this action is the Warden

of FCI Loretto.

Petitioner raises two claims in his petition. In Claim One, he contends that his due process

rights were violated during a disciplinary proceeding held at FCI Elkton in which he was found to

have committed the offense of “Engaging in a Sexual Act” and lost good conduct time (“GCT”)

as a sanction.” In Claim Two, Petitioner challenges the BOP’s determination that he is not eligible

to receive the early-release benefit it has the discretion to provide to certain inmates under

18 U.S.C. § 3621(e)(2)(B).

Respondent has filed his answer to the petition. (ECF No. 16). Petitioner did not file a

reply. See Local Rule 2241(D)(2) (a petitioner may file a reply within 30 days of the date the

respondent files the answer).

I. Discussion

In order to obtain habeas relief, Petitioner has the burden of demonstrating that “{h]e is in

custody in violation of the Constitution or laws of the United States[.]” 28 U.S.C. § 2241(c)(3).

Section 2241 confers habeas jurisdiction upon a federal prisoner’s custodial court to hear

challenges to BOP decisions that potentially affect the duration of his custody, such as the claims

Petitioner makes in this case. See, e.g., Queen v. Miner, 530 F.3d 253, 254 (3d Cir. 2008); Barden

v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990); see also Dababneh v. Warden Loretto FCI, 792

F. App’x 149, 150 n.2 (3d Cir. 2019).

7Under the BOP’s disciplinary policies, there are four categories of prohibited acts: Greatest,

High, Moderate, and Low. 28 C.F.R. § 541.3(a). Greatest category prohibited acts are listed in the

100 series; High category prohibited acts are listed in the 200 series; Moderate category

prohibited acts are listed in the 300 series; and Low category prohibited acts are listed in the 400

series. 28 C.F.R. § 541.3, Table 1. The severity level of a prohibited act determines the possible

sanction. The offense Petitioner was charged with committing, “Engaging in a Sexual Act,” is in

the 200 series.

A. Claim One

1. The Due Process Rights of Federal Prisoners During Disciplinary

Proceedings

The Supreme Court’s decision in Wolff v. McDonnell, 418 U.S. 539 (1974) is its seminal

decision concerning the due process rights of federal prisoners during disciplinary proceedings. In

that case, the Supreme Court noted that a prisoner’s accumulation of GCT, which can affect the

length of his incarceration, may give rise to a constitutionally protected liberty interest. Wolff, 418

U.S. at 556-57. The Supreme Court held that prisoners are entitled to procedures that are

sufficient to ensure that the protected interest (i.e., the GCT) “is not arbitrarily abrogated.” Jd. at

557. Specifically, in Wolffthe Supreme Court held that an inmate subject to a prison disciplinary

proceeding must be afforded the following due process safeguards: (1) the right to appear before

an impartial decision-making body; (2) written notice of the charges twenty-four hours in advance

of the disciplinary hearing; (3) an opportunity to call witnesses and present documentary

evidence, provided the presentation of such does not threaten institutional safety or correctional

goals; (4) assistance from an inmate representative if the inmate is illiterate or if complex issues

are involved; and (5) a written decision by the factfinder as to the evidence relied upon and the

rationale behind the disciplinary action. /d. at 563-72.

The regulations governing the conduct of BOP disciplinary proceedings are set forth at

28 C.F.R. §§ 541.1-541.8. These regulations track the requirements set forth in Wolff, and in some

respects exceed the required process set forth in that case. The BOP’s regulations pertaining to

inmate discipline are further explained through Program Statement (“PS”) 5270.09, which is

entitled Inmate Discipline Program.

The BOP’s regulations provide that a staff member shall prepare an incident report when

staff member reasonably believes an inmate has committed a prohibited act. 28 C.F.R.

§ 541.5(a). Another BOP staff member will investigate the report. Id., § 541.5(b). Among other

things, the investigator must inform the inmate of the charges against him and ask him if he

would like to make a statement. Jd., § 541.5(b)(2).

A Unit Discipline Committee (“UDC”)* will review the incident report once the staff

investigation is complete. An inmate is entitled to appear before the UDC during its review of the

incident report, to make a statement, and to present documentary evidence. /d., § 541 .7(d)-(e). Ifthe UDC

finds that the inmate has committed a Moderate or Low severity offense (that is, an act in the 300 or 400

series) the UDC may impose minor sanctions. Id, § 541.7(f). However, where, as was the case here, the

inmate has been accused of committing a Greatest or High severity offense, the UDC must refer the charge

to a Disciplinary Hearing Officer ((DHO”) for a hearing. Jd., § 541.7(g). An inmate is to receive a

written copy of the UDC’s decision following its review of the incident report. Id., § 541.7(h).

An inmate’s rights during a DHO hearing are set forth at 28 C.F.R. § 541.8, which

requires: (1) 24-hour advance written notice of a charge prior to the inmate’s appearance before

3Full copies of the BOP’s various program statements are available on its website at

https://www.bop.gov. Certain BOP policies are set forth only in its program statements and are

not also published in any federal regulation. In those instances, the polices are not subject to

public notice and comment before adoption. Therefore, they are not entitled to the deference

described in Chevron U.S.A. v. National Resources Defense Council, 467 U.S. 837 (1984),

however, they are entitled to “some deference” from a court so long as they set forth “a

permissible construction of” the statutes at issue. Blood vy. Bledsoe, 648 F.3d 203, 207-08 (Gd Cir.

2011) (per curiam) (citing Reno v. Koray, 515 U.S. 50, 61 (1995)). .

¢While the UDC “ordinarily consists of two or more staff’ designated by the warden, it may be

comprised of a single individual. 28 C.F.R. § 541.7; PS 5270.09 at 23. BOP policy provides that

“lojnly one unit staff member is required to hold [the UDC] initial review when the incident

report is required by policy to be referred to the DHO.” PS 5270.09 at 23.

the DHO; (2) that an inmate shall be provided a staff representative at the DHO hearing, if so

desired; (3) that an inmate is entitled to make a statement and to present documentary evidence at

the DHO hearing; (4) that the inmate may also call witnesses to testify on his behalf, but may not

himself question the witnesses (although he may submit questions for requested witnesses in

writing to the DHO);and (5) that the inmate is entitled to be present throughout the hearing,

except during a period of deliberation or when institutional security would be jeopardized. Id.,

§ 541.8(c)-(f).

The BOP’s regulations explain that a staff representative may not be “a victim, witness,

investigator, or otherwise significantly involved in the incident.” Jd, § 541.8(d)(1). The role of

the staff representative is described as follows:

How the staff representative will help you. Prior to the DHO’s hearing, the staff

representative will be available to help you understand the incident report charges

and potential consequences. The staff representative may also assist you by

speaking with and scheduling witnesses, obtaining written statements, and

otherwise helping you prepare evidence for presentation at the DHO’s hearing.

During the DHO’s hearing, you are entitled to have the staff representative appear

and assist you in understanding the proceedings. The staff representative can also

assist you in presenting evidence during the DHO’s hearing.

§ 541.8(d)(2).

Once the DHO has conducted the hearing, considered the evidence, and decided whether

the inmate committed a disciplinary infraction, the DHO is required to prepare a record of the

proceeding and provide it to the inmate. Id., § 541.8(h). The report must be sufficient to document

the advisement of the inmate’s rights, the DHO’s findings and decision, the evidence the DHO

relied upon, and the reasons for the sanctions imposed. Jd. As discussed in further detail below,

there must be “some evidence” to support the DHO’s decision to revoke GCT. Superintendent v.

Hill, 472 U.S. 445, 454 (1985).

2. Relevant Background

On June 1, 2017, an incident report was issued charging Petitioner with committing the

offense of “Engaging in a Sexual Act.” (Resp’s Ex. 3A, Incident Report, ECF No. 16-5 at 2). The

reporting prison official, Nurse Rhinehart, provided the following description of the incident:

On 06/01/2017 at 0637, I was conducting pill line at the FSL. I noticed an inmate

standing outside of the Health Services glass door for an extended time. The inmate

was facing away from me and then turned his head around and I identified him as

[Petitioner]. I continued to observe his actions... [Petitioner’s] hands were down

the front of his pants, I observed his right arm moving in a back to forth motion

beneath his pants. [Petitioner] was looking down the hallway acting as his own

look out while he engaged in the sexual act of masturbation while peering at me. I

left the pill line window at 0638 and asked PA Griffith to “come with me” to

confront [Petitioner], by the time PA Griffith and I got to the Health Services

sallyport door we observed [Petitioner] walking down the hallway away from

Health Services. [Petitioner] is not a pill line inmate and did not sign up for sick

call today.

Ud.)

The investigating officer delivered the incident report to Petitioner that same day and

advised him of his rights. (/d. at 2-3). Petitioner informed the investigating officer that he had

“Tnjo comment.” (/d. at 3). The investigating officer referred the incident report to the UDC for

further disposition. (/d.)

On June 6, 2017, the UDC, which in this case was comprised of one staff member,

conducted a review of the incident report. (Id. at 2). Petitioner was present at this review and told

the UDC “the timeframes on [the incident] report are not accurate” and he requested that video

from the surveillance cameras “be reviewed to prove his innocence.” (/d.) The UDC referred the

incident report to the DHO for final disposition following a hearing. (/d.) The UDC also advised

Petitioner of his rights at the DHO hearing. (Resp’s Ex. 3B, Inmate Rights at Discipline Hearing,

ECF No. 16-6 at 2). At that time, Petitioner waived his right to a staff representative. (Resp’s Ex.

3C, Notice of Discipline Hearing Before the DHO, ECF No. 16-7 at 2). He designated two

inmates as witnesses. (Jd.) Petitioner maintained that they could provide statements in support of

his position that Nurse Rhinehart’s account should not be credited because the alleged incident

could not have happened at the time she said it did. Ud.)

Petitioner’s DHO hearing was originally scheduled to be held on June 13, 2017.

(Resp’s Ex. 3D, DHO Report, ECF No. 16-8 at 4). At the commencement of the hearing,

Petitioner notified the DHO that he wanted a staff representative. Ud.) Therefore, the DHO

continued the hearing. (/d.)

The DHO hearing reconvened on June 28, 2017. Petitioner’s chosen staff representative,

Correctional Counselor D. Smith, was present at the hearing. At the beginning of the hearing, the

DHO informed Ms. Smith and Petitioner that a systems technician had provided him with a

memorandum, dated June 9, 2017, within which the technician explained that he had checked

the camera surveillance system and there was no available video footage of the relevant location

for the date and time Nurse Rhinehart maintained the incident had occurred. (id. at 3-4). The

other documentary evidence the DHO had before him was incident report and investigation, a

three-page written statement Petitioner had provided, and a memorandum from the physician’s

assistant who had accompanied Nurse Rhinehart in the hallway area after the alleged incident.

The physician’s assistant identified Petitioner as the inmate she saw when she accompanied

Rhinehart. (Id. at 3),

Ms. Smith informed the DHO that she had no concerns with the evidence or due process.

(Id.) She stated that although she could provide no specifics about the alleged incident, she had

worked with the Petitioner in the past and he had always been respectful to her. (/d.)

When he spoke, Petitioner informed the DHO: “I did not do what [Nurse Rhinehart] said I

did in the incident report, she is not telling the truth. I don’t do things like that to female staff.”

(Id. at 2). As mentioned above, Petitioner also submitted to the DHO a three-page written

statement in which he asserted that he DHO should not credit Nurse Rhinehart’s report. (/d. at 3).

The two inmates that Petitioner requested as witnesses provided statements to the DHO.

One inmate stated: “Yes, I was standing outside health services on that date, but I was not paying

attention to what [Petitioner] was doing, I was waiting to go to work outside of the FSL. I can’t

say if [Petitioner] did or did not do anything, I did not see anything. That is all know about the

situation.” (id. at 3). The other inmate stated: “No, I was not there at the time this happened. I do

not know anything about what happened, I did not witness anything. That is all I can say about

the situation.” (/d.)

The DHO issued his report on August 29, 2017.° He explained that he considered all of

the above-cited information and determined that the greater weight of the evidence supported the

conclusion that Petitioner committed the offense of Engaging in a Sexual Act. The DHO

explained that he considered Petitioner’s verbal and written statements but he credited Nurse

Rhinchart’s account of the incident. (Jd. at 4-5). In relevant part, the DHO imposed as a sanction

the disallowance of 27 days of GCT and the forfeiture of 60 days of non-vested GCT. (dd. at 5-

6).

‘The DHO Report contains a typographical error that incorrectly recorded the date as

August 29, 2016.

°Petitioner asserts that the DHO assessed him too much GCT as a sanction. In his answer,

Respondent explains that the BOP’s regulations specifically authorize forfeiture of non-vested

good conduct time up to 50% or up to 60 days, whichever is less, and the disallowance

ordinarily between 25%-50% (14-27 days) of GCT credit available for a year. 28 C.F.R. § 541.3,

Table 1. Therefore, Respondent explains, the DHO was authorized to impose the sanctions he

did in Petitioner’s case.

3. The BOP Complied With the Required Procedural Protections for

Disciplinary Proceedings and the DHO’s Decision Was Supported By

“Some Evidence”

Petitioner has not satisfied his burden of demonstrating that his due process rights were

violated during his disciplinary proceeding. He alleges he was denied evidence, specifically

video footage of the relevant location on the date and time when Nurse Rhinehart stated he

committed the offense. However, as the DHO advised Petitioner and Ms. Smith, there was no

video footage of the incident available for any of them to review.’ Petitioner also takes issue

with the fact that he was not afforded a staff representative or allowed to call witnesses at his

UDC review. This argument has no merit because he was not entitled to those things at his UDC

review. He was entitled to them at his DHO hearing, and he received them at that hearing.

Petitioner further contends that he did not receive a copy of the UDC’s decision until

June 29, 2017, which was the day after the DHO conducted its hearing. Notably, there is no

indication that Petitioner advised the DHO on either June 13, 2017 or June 28, 2017 that he had

not yet received the UDC’s decision. Nor is there any indication that Ms. Smith informed the

DHO that she had not been able to review UDC’s decision. In any event, the UDC’s decision in

this case consisted of the following single sentence: “The UDC is referring this report to the

DHO due to the severity of the incident and for sanctions greater than available at the UDC

level.” (Resp’s Ex. 3A, Incident Report § 19, ECF No. 16-5 at 2). If in fact Petitioner did not

receive that “decision” until after the DHO hearing, he has not demonstrated that that amounted

to a violation of his due process rights. As set forth above, Wolff requires only that the inmate

7 To the extent that any relevant video footage had existed, FCI Elkton was not obligated to

preserve it. McKeithan v. Beard, 322 F. App’x 194, 201 (3d Cir. 2009) (“The videotape and

photographs at most constitute potentially exculpatory evidence, which prison officials have no

constitutional obligation to preserve or consider.”) (citing Griffin v. Spratt, 969 F.2d 16, 22 (3d

Cir. 1992)).

receive a written copy of the final decisionmaker’s (here, the DHO’s) report. Moreover,

Petitioner has not demonstrated that he suffered any prejudice.

In actuality, Petitioner’s primary challenge is to the DHO’s determination that he

committed the offense of Engaging in a Sexual Act. It is well settled, however, that a DHO’s

determination is entitled to considerable deference by a reviewing court and it must be upheld as

long as there is “some evidence” to support it. As the Supreme Court explained in Superintendent

v. Hill:

We hold that the requirements of due process are satisfied if some evidence

supports the decision by the prison disciplinary board to revoke good time credits.

This standard is met if there was some evidence from which the conclusion of the

administrative tribunal could be deduced.... Ascertaining whether this standard is

satisfied does not require examination of the entire record, independent assessment

of the credibility of witnesses, or weighing of the evidence. Instead, the relevant

question is whether there is any evidence in the record that could support the

conclusion reached by the disciplinary board... We decline to adopt a more

stringent evidentiary standard as a constitutional requirement.

472 U.S. at 455-56 (internal quotation marks and citation omitted); see also Denny v. Schultz, 708

F.3d 140, 144 (3d Cir. 2013) (“a prison disciplinary decision need only be supported by ‘some

evidence’ in order to satisfy due process.”); Thompson v. Owens, 889 F.2d 500, 502 (Gd Cir.

1989) (“The due process requirements in this context are minimal”).

Here, the DHO’s decision was based upon the requisite amount of evidence necessary to

survive review by a federal habeas court. Nurse Rhinehart reported that she observed Petitioner

masturbating in the hallway. While Petitioner denied her account, the DHO credited her version

and cited to other evidence, such as the memorandum from the physician assistant, that tended to

corroborate it. The DHO also considered the statements from Petitioner’s witnesses, but neither

of them could provide specific testimony about his observed behavior at the time of the incident.

Additionally, the DHO considered Petitioner’s written and verbal testimony but found the

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greater weight of the evidence support the finding that he committed the prohibited act. Jd.

For the reason set forth above, Petitioner failed to demonstrate that his due process rights

were violated during his disciplinary proceeding. Therefore, he is not entitled to habeas relief on

Claim One and it is denied.

B. Claim Two

OL. Relevant Background

As part of its duties, the BOP is required to “make available appropriate substance abuse

treatment for each prisoner [it] determines has a treatable condition of substance addiction or

abuse.” 18 U.S.C. § 3621(b). In the Violent Crime Control and Law Enforcement Act of 1994,

Pub.L. 103-322, Congress amended § 3621 and vested the BOP with the authority provide certain

inmates with an early-release benefit if they successfully complete its Residential Drug Abuse

Program (“RDAP”). The BOP’s authority is set forth at § 3621(e)(2)(B), which provides:

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)(B) (emphasis added).

In Lopez v. Davis, 531 U.S. 230 (2001), the Supreme Court agreed with the BOP that

“8 3621(e)(2)(B) establishes two prerequisites for sentence reduction: conviction of a nonviolent

offense and successful completion of drug treatment. If those prerequisites are met, [the BOP]

‘may,’ but also may nof, grant early release.” 531 U.S. at 239 (emphasis in original). Because

Congress did not address how the BOP should exercise its discretion within the class of inmates

who satisfy the two statutory prerequisites, the BOP. was tasked with developing criteria to

determine which inmates would be eligible to receive the early-release benefit.

11

In the implementing regulation at issue in this case, 28 C.F.R. § 550.55(b), the BOP has

excluded, in an exercise of its discretion, certain categories of inmates from receiving the early-

release benefit. The BOP may exclude inmates categorically as long as it has interpreted

§ 3621(e)(2)(B) reasonably in a manner that is not arbitrary or capricious under the

Administrative Procedure Act (“APA”). Lopez, 531 U.S. 239-40; id. at 242 (“In this familiar

situation, where Congress has enacted a law that does not answer the precise question at issue, all

we must decide is whether the [BOP], the agency empowered to administer the early release

program, has filled the statutory gap in a way that is reasonable in light of the legislature’s

revealed design. We think the [BOP’s] interpretation is reasonable both in taking account of

preconviction conduct and in making categorically exclusions.”) (internal quotations and citations

omitted).

Section 550.55(b) excludes numerous categories of inmates from receiving the early-

release benefit. In relevant part, it provides:

(b) Inmates not eligible for early release. As an exercise of the Director's

discretion, the following categories of inmates are not eligible for early release:

(5) Inmates who have a current felony conviction for:

(i) An offense that has as an element, the actual, attempted, or threatened

use of physical force against the person or property of another;

(ii) An offense that involved the carrying, possession, or use of a firearm or

other dangerous weapon or explosives (including any explosive material or

explosive device),

(iii) An offense that, by its nature or conduct, presents a serious potential

risk of physical force against the person or property of another; or

(iv) An offense that, by its nature or conduct, involves sexual abuse

offenses committed upon minors;

28 C.F.R. § 550.55(b)(5)(i)-(iv) (emphasis added).

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Petitioner participated in the BOP’s RDAP program. Therefore, the BOP, through its staff

with its Designation and Sentence Computation Center (“DSCC”), was tasked with conducting an

offense review to determine if he would be eligible for the early-release benefit upon completion

of the program. Respondent explains that in conducting offense reviews, the DSCC legal staff

examines the inmate’s Judgment and Commitment file, which includes the Judgment and

Commitment Order, Statement of Reasons, Pre-Sentence Investigation Report, and any other

sentencing documentation that may be relevant.

The BOP completed its most recent offense review of Petitioner in October 2017. It

determined that he was not eligible to receive § 3621(e)(2)(B)’s early-release benefit. (Resp’s Ex.

3G, Request for § 3621(e) Offense Review, ECF No. 16-11 at 2-3). It so held because it

concluded that Petitioner’s conviction of Felon in Possession of a Firearm in violation of

18 U.S.C. § 922(g)(1) “involved the carrying, possession, or use of a firearm or other dangerous

weapon[,]” and also qualified as a crime that “by its nature or conduct, present[ed] a serious

potential risk of physical force against the person or property of another[,]” thereby falling within

the terms of § 550.55(b)(5)(ii) and (iii), respectively. (/d.)

The BOP further explained that, in addition to being precluded from the early-release

benefit under its regulations, Petitioner was also prohibited from receiving it under the policy set

forth in § 4(e) of PS 5162.05, which is entitled “Categorization of Offenses” and which is one of

the program statements it utilizes to assist in the implementation of various programs. That policy

states that an inmate convicted of an offense under 18 U.S.C. § 922(g) may not receive “certain

[BOP] program benefits.”

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2. Discussion .

In Claim Two, Petitioner contends that the BOP’s determination that he would not receive

the early-release benefit violated the APA. This Court has no authority to review under the APA

the decision the BOP made in Petitioner’s particular case. This Court is barred from doing so

under 18 U.S.C. § 3625. In relevant part, § 3625 states that the APA sections governing judicial

review “do not apply to the making of any determination, decision, or order under this

subchapter.” “This subchapter,” ie., Subchapter C of the Postsentence Administration statute,

includes § 3621, which, as set forth above, confers upon the BOP authority to administer the

RDAP and § 3621(e)(2)(B)’s early-release benefit. See, e.g., Reeb v. Thomas, 636 F.3d 1224,

1227 (9th Cir. 2010) (“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. Accordingly, any substantive decision by the

BOP to admit a particular prisoner into RDAP, or to grant or deny a sentence reduction for

completion of the program, is not reviewable by the district court.”) (emphasis added).

Although this Court has no authority to review the decision the BOP made in Petitioner's

particular case, Petitioner can challenge the BOP’s rulemaking, which is not barred from judicial

review under § 3625. Sée, e.g. Lopez, 531 U.S. at 232-45; Gardner v. Grandolsky, 585 F.3d 786,

788 (3d Cir. 2009), Petitioner contends that the policy set forth in § 4(e) of PS 5162.05 is invalid

because the BOP promulgated it in violation of the APA’s notice and comment requirements.

5 U.S.C. § 553(b). This argument is irrelevant because the policy set forth in the program

statement was just one of three independent bases cited by the BOP in support of its

determination that Petitioner would not receive the early-release benefit. The other two bases

cited were the regulations at § 550.55(b)(5)G@i) and (iii), which were subject to notice and

14

comment before they were made final. See 74 Fed. Reg. 1892-01 (Jan. 14, 2009). And as

explained above, although Petitioner believes the BOP erred in applying those regulations to his

offense conviction, § 3625 bars judicial review of the BOP’s decision in that regard.

Petitioner also argues that the BOP’s decision deprived him of his liberty in violation of

his due process rights. This argument fails because he has no protectable liberty interest in

receiving the early-release benefit following completion of the RDAP program. See, □□□□□

Dababneh, 792 F. App’x at 151 (citing Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998)

(§ 3621(e)(2)(B) “allows a decisionmaker to deny the requested relief within its unfettered

discretion [and] does not create a constitutionally-recognized liberty interest”) and Stephany v.

Wagner, 835 F.2d 497, 500-01 (3d Cir. 1987) (noting that a rule creates a protectable interest only

when it constrains the decisionmaker’s discretion)); see also Greenholtz v. Inmates of Nebr. Penal

& Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a

convicted person to be conditionally released before the expiration of a valid sentence.”);

Meachum vy. Fano, 427 U.S. 215, 226-28 (1976) (a statute which grants the prison administration

discretion does not confer a right on an inmate). Accordingly, since Petitioner had no protected

liberty interest in receiving the early-release benefit, there could be no violation of his due process

rights when the BOP determined he was not entitled to receive it.

Based upon the foregoing, Petitioner has failed to demonstrate that the BOP’s decision

that he is precluded from receiving § 3621(e)(2)(B)’s early-release benefit violated either the

APA or his right to due process, Therefore, Claim Two is denied.

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WI. Conclusion

For the reasons set forth above, Petitioner is not entitled to habeas relief under § 2241 and,

therefore, the Court will deny his petition (ECF No. 9).° An appropriate Order follows.

B □□ +

Dated: April 6, 2020 □□□

7 O-7F C

PATRICIA. DODGH

United States Magistraté Judge

28 U.S.C. § 2253 sets forth the standards governing the issuance of a certificate of appealability

for appellate review of a district court’s disposition of a habeas petition. Federal prisoner appeals

from the dismissal of a § 2241 habeas corpus proceeding are not governed by the certificate of

appealability requirement. United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000),

abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012).

16