Nunez v. Bennett

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MICHAEL NUÑEZ,
Movant,
vs.
WARDEN K. BENNETT,
Respondent.
4:21-CV-04174-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on the pro se habeas petition of Michael
Nuñez, a person incarcerated at the Yankton Federal Prison Camp in Yankton,
South Dakota. 	See Docket No. 1. 	Mr. Nuñez seeks habeas relief, arguing that
respondent is wrongfully denying him early release for having completed the
Bureau of Prison’s (“BOP”) Residential Drug Abuse Program “(“RDAP”). 	Id.
Now pending is a motion to dismiss Mr. Nuñez’s habeas petition pursuant to
28 U.S.C. § 2241 without holding an evidentiary hearing. 	See Docket No. 10.
Mr. Nuñez opposes the motion. 	See Docket No. 13. 	This matter was referred
to this magistrate judge for a recommended disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen
E. Schreier, United States District Judge.
FACTS
Mr. Nuñez is currently serving a 120-month sentence for conspiracy to
possess with intent to distribute 50 grams or more of methamphetamine.
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Docket No. 1 at p. 1; Docket No. 12 at p. 1, ¶ 2. 	At his sentencing hearing on
September 1, 2016, the district court imposed a two-level increase in
Mr. Nuñez’s United States Sentencing Guidelines (“USSG”) calculation because
Mr. Nuñez possessed a firearm in relation to the offense of conviction. 	See
Docket No. 12 at p. 5-6, ¶ 17.
Mr. Nuñez alleges respondent is denying him the one year early release
available under RDAP for successful completion of the program. 	Docket No. 1
at p. 2. 	He alleges respondent is basing its decision to deny him that early
release upon language which the Supreme Court has declared to be
unconstitutionally vague. 	Id. 	Specifically, he alleges the language used in 28
C.F.R. § 550.55 has been found to be unconstitutionally vague by the Court in
several statutes and that the BOP is abusing their discretion to use that same
language to deny him early release under RDAP. 	Docket No. 1 at pp. 6-7.
Respondent has moved for dismissal of Mr. Nuñez’s claim on the grounds
that this court lacks subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)
and that Mr. Nuñez has failed to state a claim upon which relief can be granted
under Rule 12(b)(6). 	See Docket No. 10. 	Mr. Nuñez resists the motion. 	See
Docket No. 13.
DISCUSSION
A. 	Rule 12(b)(6) Standard
One of the grounds for respondent’s motion to dismiss is FED. R. CIV . P.
12(b)(6). 	Rule 12(b)(6) allows dismissal of a habeas petition if the petitioner has
failed to state a claim upon which relief can be granted. 	See FED. R. CIV . P.
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12(b)(6). 	Petitioners must plead Aenough facts to state a claim to relief that is
plausible on its face.@ 	Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(emphasis added).
Under Federal Rule of Civil Procedure 8(a)(2), a petitioner must plead
only Aa short and plain statement of the claim showing that the pleader is
entitled to relief.@ 	Id. at 554-55 (quoting FED. R. CIV . P. 8(a)(2)). 	A habeas
petition does not need Adetailed factual allegations@ to survive a motion to
dismiss, but a petitioner must provide the grounds for his entitlement to relief
and cannot merely recite the elements of his cause of action. 	Id. at 555 (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). 	There is also a Aplausibility
standard@ which Arequires a [petition] with enough factual matter (taken as
true)@ to support the conclusion that the petitioner has a valid claim. 	Id.
at 556. 	The petitioner=s complaint must contain sufficiently specific factual
allegations to cross the line between Apossibility@ and Aplausibility@ of
entitlement to relief. 	Id.
There are two Aworking principles@ that apply to Rule 12(b)(6) motions.
Ashcroft v. Iqbal, 556 U.S. 662, 663, 678 (2009). 	First, courts are not required
to accept as true legal conclusions Acouched as factual allegation[s]@ contained
in a petition. 	Id. at 678 (citing Papasan, 478 U.S. at 286). 	AThreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.@ 	Id. (quoting Twombly, 550 U.S. at 555). 	Rule 8 Adoes not
unlock the doors of discovery for a [petitioner] armed with nothing more than
conclusions.” 	Id. at 678-79.
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Second, the plausibility standard is a Acontext-specific task that requires
the reviewing court to draw on its judicial experience and common sense.@ 	Id.
at 679 (quoting decision below Iqbal v. Hasty, 490 F.3d 143, 157-158 (2d Cir.
2007)). 	Where the petitioner=s allegations are merely conclusory, the court may
not infer more than the mere possibility of misconduct, and the petitioner has
alleged—but has not Ashow[n]@—that he is entitled to relief as required by Rule
8(a)(2). 	Iqbal, 556 U.S. at 679 (emphasis added).
The Court explained that a reviewing court should begin by identifying
statements in the petition that are conclusory and therefore not entitled to the
presumption of truth. 	Id. at 679-680. 	Legal conclusions must be supported by
factual allegations demonstrating the grounds for a petitioner=s entitlement to
relief. 	Id. at 679; Twombly, 550 U.S. at 555; FED. R. C IV . P. 8(a)(2). 	A court
should assume the truth only of Awell-pleaded factual allegations,@ and then
may proceed to determine whether the allegations Aplausibly give rise to an
entitlement to relief.@ 	Iqbal, 556 U.S. at 679. 	These are the principles guiding
the court’s evaluation of respondents’ motion.
Rule 12(b)(6) requires the court to evaluate the sufficiency of a
petitioner’s pleading of a claim by examining his or her petition. 	See FED. R.
CIV . P. 12(b)(6); Iqbal, 556 U.S. at 679. 	Rule 56, the rule for summary
judgment, allows the court to consider affidavits, documents, deposition
transcripts and other items extraneous to the petition in determining whether
to grant the motion. 	See FED . R. CIV . P. 56.
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Courts evaluating a Rule 12(b)(6) motion are not strictly limited to
evaluating the petition alone, however. 	Dittmer Props., L.P. v. F.D.I.C., 708
F.3d 1011, 1021 (8th Cir. 2013). 	They may consider “matters incorporated by
reference or integral to the claim, items subject to judicial notice, matters of
public record, orders, items appearing in the record of the case, and exhibits
attached to the complaint whose authenticity is unquestioned.” 	Id. (citing
Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012)
(quoting 5B Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1357 (3d
ed. 2004))).
B. 	Analysis of Mr. Nuñez’s Petition for Habeas Relief
Some bedrock principles require stating before analyzing Mr. Nuñez’s
argument. 	A petition seeking habeas relief under 28 U.S.C. § 2241 is
appropriate if the petitioner is challenging the fact or duration of his
confinement. 	Preiser v. Rodriquez, 411 U.S. 475, 490 (1973). 	The writ may
issue if the defendant demonstrates he is in custody in violation of the federal
Constitution, laws, or treaties. 	See 28 U.S.C. § 2241(c)(3). 	Here, the subject
matter of Mr. Nuñez’s request for habeas relief falls squarely within the ambit
of § 2241 because he is not attacking his underlying conviction, but only the
length of his sentence as calculated by the BOP—i.e. the fact that the BOP will
not consider granting him early release.
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Next, even if Mr. Nuñez demonstrates he is eligible for consideration of
early release by virtue of successfully completing RDAP1 , the BOP would have
the discretion to grant him early release, but would not be required to grant
such release. 	18 U.S.C. § 3621(e)(2)(B)2 ; Lopez v. Davis, 531 U.S. 230, 241
(2001) (stating “[w]hen an eligible prisoner successfully completes drug
treatment, the [BOP] . . . has authority, but not the duty, . . . to reduce his
term of imprisonment.”). 	No prisoner has any constitutional or statutory right
to early release. 	Greenholtz v. Inmates of Neb. Penal and Correctional
Complex, 442 U.S. 1, 7 (1979).
Finally, administrative decisions by the BOP in interpreting the grant of
authority to it by Congress under 18 U.S.C. §§ 3621-3625 are not subject to
judicial review under the Administrative Procedure Act (“APA”). 	See 18 U.S.C.
§ 3625 (stating that the provisions of the APA (sections 554, 555 and 701-706)
“do not apply” to any determination, decision, or order under 18 U.S.C.
§§ 3621-3625). 	The BOP has authority to manage inmate drug treatment
programs such as RDAP by virtue of 18 U.S.C. § 3621. 	Allowing prisoners to
bring habeas petitions under 28 U.S.C. § 2241 to challenge the BOP’s
1 Neither Mr. Nuñez nor respondent specifically clarify whether Mr. Nuñez did
successfully complete RDAP, or whether he was dissuaded from pursuing
participation in the program by reason of respondent’s decision that he would
not be given early release if he did successfully complete the program.
2 Section 3621(2)(B) states “[t]he 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.” (emphasis
supplied).
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discretionary determinations made pursuant to 18 U.S.C. § 3621 would be
inconsistent with the language of 18 U.S.C. § 3625. 	Reeb v. Thomas, 636 F.3d
1224, 1228 (9th Cir. 2011).
Only if the BOP acts contrary to established federal law, violates the
Constitution, or exceeds its statutory authority do courts have jurisdiction to
review BOP action under the specified statutes. 	Id.; Accord, Gatewood v. T.C.
Outlaw, 560 F.3d 843, 846-47, n. 2 (8th Cir. 2009) (Ҥ 3625 may well preclude
judicial review of BOP decisions applying the final rule and program statement
to particular inmates.”); Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.
1998) (“Accordingly it is apparent that § 3625 precludes judicial review of
agency adjudicative decisions but not of rulemaking decisions.”). 	Mr. Nuñez
alleges the BOP violated the constitution in promulgating its regulation
pertaining to RDAP, 28 C.F.R. § 550.55. 	See Docket No. 1 at pp. 6-7.
1. 	The BOP Did Not Act Contrary to Established Federal Law, in
Violation of the Constitution, or in Excess of its Statutory
Authority
An analysis of the applicable statutes, regulations, and program
statements demonstrates that the BOP did not act unlawfully. 	The RDAP
statute, 18 U.S.C. § 3621(e)(2)(B), states “[t]he 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.” 	As noted above, this provision does not require the BOP to
grant a prisoner early release even if he is eligible—instead, using the word
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“may,” it gives the BOP discretion to grant such early release. 	Lopez, 531 U.S.
at 241.
The Lopez decision was an appeal from the District of South Dakota
involving facts very similar to Mr. Nuñez’s. 	The petitioner, Lopez, was a federal
inmate who filed a § 2241 habeas petition, asserting he should be given
consideration under RDAP for early release. 	Id. at 232-34. 	Lopez had been
convicted of a federal drug crime and, at sentencing, the district court imposed
a two-level enhancement under the USSG for possessing a firearm in
connection with his drug crime. 	Id. at 236.
The BOP categorically denied Lopez consideration for early release under
RDAP by virtue of a regulation it had promulgated prohibiting all prisoners
from consideration for early release if their current offense was a felony
attended by the carrying, possession, or use of a firearm. 	Id. at 232-34. 	The
BOP regulation was not an attempt to define “nonviolent offense” as used in
§ 3621(e)(2)(B), nor was it an attempt to define “crime of violence.” 	Id. at 235.
Instead, the BOP recognized Congress gave it discretion to decide which
nonviolent offenders it would consider for early release and the BOP issued
regulations declaring which categories of cases it would consider for release
and which categories of cases it would not consider. 	Id. 	The Court pointed
out that § 3621 did not mandate the result in Lopez’s case. 	Id. at 235-36.
Instead, the result was mandated by the BOP regulation. 	Id.
Thus, the issue before the Court was “whether the BOP had discretion to
delineate, as an additional category of ineligible inmates, those whose current
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offense is a [nonviolent] offense involving a firearm.” 	Id. at 238. 	The Court
concluded the BOP had acted lawfully in exercising its discretion by
promulgating the regulation. 	Id. at 244-45. 	Although the BOP could have
acted on a case-by-case basis, determining individually which inmates
qualified for early release and which did not, the Court held the BOP acted
permissibly by excluding certain inmates categorically from consideration, even
though they may qualify as “nonviolent” offenders under the statute. 	Id. at
240. 	The BOP’s determination that “inmates who possessed a firearm in
connection with their current offense . . . displayed a readiness to endanger
another’s life” was entirely rational according to the Court, even if their offense
was a nonviolent one. 	Id.
The regulation at issue in Mr. Nuñez’s case is the progeny of the one
considered by the Lopez Court. 	The applicable regulation provides in pertinent
part:
§ 550.55 Eligibility for early release.
(a) 	Eligibility. 	Inmates may be eligible for early release by a period
not to exceed twelve months if they:
* * *
(2) Successfully complete a RDAP . . . during their current
commitment.
(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:
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* * *
(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;
(6) 	Inmates who have been convicted of an attempt,
conspiracy, or solicitation to commit an underlying offense
listed in paragraph . . . (b)(5) of this section;
28 U.S.C. § 550.55(a)(2) & (b)(5)(ii) & (iii).
The BOP has further clarified that, for purposes of § 550.55(b)(5)(ii)
above, an offense involves the carrying, possession, or use of a firearm if, at
sentencing, the district court applied a two-point enhancement under the
USSG for carrying, using, or possessing a firearm in connection with a federal
drug offense under 21 U.S.C. §§ 841 & 846. 	See Docket No. 11-3 at p. 10
(Program Statement 5162.05, ¶ 4.b).
The Lopez Court settled once and for all that sentencing factors—like the
two-point USSG enhancement for possessing a firearm—can be the basis for
denying RDAP eligibility as well as an element of the crime of conviction.
Lopez, 531 U.S. at 239-41. 	Although Lopez approved an earlier version of
§ 550.55, the Eighth Circuit has approved the version applicable to Mr. Nuñez
applying the reasoning of Lopez. 	See Giannini v. Fed. Bur. of Prisons, 405 Fed.
Appx. 96, 97-98 (8th Cir. 2010).
Mr. Nuñez argues that because § 550.55(b)(5)(iii) uses language
paralleling that used in the statute under scrutiny in Johnson v. United States,
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576 U.S. 591 (2015), and found unconstitutionally vague in Johnson, that the
language is unconstitutional in § 550.55(b)(5)(iii) also. 	Docket No. 13 at p. 3.
The BOP specifies in its regulation that an inmate who has been convicted of
“an offense that, by its nature or conduct, presents a serious potential risk of
physical force against the person or property of another” is not eligible for early
release. 	28 C.F.R. § 550.55(b)(5)(iii).
Mr. Nuñez is correct that the statute at issue in Johnson, 18 U.S.C.
§ 924(c)(3)(B), contains very similar language3 to that contained in
§ 550.55(b)(5)(iii) and that the Court found that language to be
unconstitutionally vague. 	Johnson, 576 U.S. at 597. 	Where Mr. Nuñez’s
argument misses the mark is that respondent did not rely solely on
subsection (b)(5)(iii) of § 550.55 in denying him early release eligibility.
Instead, respondent founded its decision jointly on the fact that he
possessed a firearm in connection with a drug trafficking crime, a provision of
§ 550.55 found in subdivision (b)(5)(ii), and that his current conviction was “an
attempt, conspiracy, or other offense which involved an underlying offense”
listed in subsection (b)(6) of § 550.55. 	See Docket No. 12-4 at p. 1 (relying also
on § 550.55(b)(5)(ii) and (6) in denying Mr. Nuñez early release eligibility).
Thus, respondent’s decision is supportable on the basis of two other provisions
3 Section 924(c)(3)(B) defines “crime of violence” to include a felony offense “that
by its nature, involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the offense.”
18 U.S.C. § 924(c)(3)(B).
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of § 550.55 which Mr. Nuñez does not attack and which are not similar to the
language condemned in Johnson.
Because the decision of respondent can be justified by two separate
provisions which do not implicate Johnson, § 550.55(b)(5)(ii) and (6), the court
concludes the BOP did not violate the vagueness doctrine of the Due Process
Clause in promulgating its regulations and implementing RDAP as that
regulation was applied to Mr. Nuñez. 	It follows that, because the provisions of
§ 550.55 which support respondent’s decision (subsections (b)(5)(ii) and (6)),
are not unconstitutionally vague, that respondent’s decision to deny Mr. Nuñez
early release under those provisions is not unconstitutional either. 	Thus,
under § 3625, this court does not have the power to judicially review the BOP’s
individualized decision as to Mr. Nuñez.
CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends that respondent’s motion to dismiss [Docket No. 10]
be granted and that Mr. Nuñez’ § 2241 petition [Docket No. 1] be dismissed
with prejudice.
NOTICE TO PARTIES
The 	parties 	have 	fourteen 	(14) 	days 	after 	service 	of 	this 	report 	and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
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district court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED December 10, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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