Decker v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Randy L. Decker, Jr.
v. Case No. 17-cv-015-PB
FCI Berlin, Warden
REPORT AND RECOMMENDATION
Randy Decker, an inmate at the Federal Correction
Institution in Berlin, New Hampshire, petitions for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. He claims that his
constitutional right to procedural due process was violated when
prison officials expelled him from the prison’s Residential Drug
Abuse Program (“RDAP”), without adequate explanation, which
resulted in his losing the sentence reduction that he might have
been granted if he had successfully completed RDAP. Before this
magistrate judge for a report and recommendation is respondent’s
motion to dismiss or for summary judgment. Petitioner has not
responded. For the reasons that follow, respondent’s motion
should be granted.
Background
When Decker was admitted into RDAP, he became eligible for
a statutory incentive to complete the program, under which
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“[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 [“BOP”], but
such reduction may not be more than one year from term the
prisoner must otherwise serve.” 18 U.S.C. § 3621(e)(2)(B).
While Decker was enrolled in RDAP, his inmate record reflected
the possibility of an early release, on June 27, 2017. In June
of 2016, shortly before he would have completed DRAP, if all had
gone well, Decker was expelled from the program. His inmate
record was thereafter amended to reflect that he was no longer
eligible for the § 3621(e)(2)(B) incentive, and that his
projected release date was June 27, 2018. Decker appealed his
expulsion from DRAP through all four levels of the BOP grievance
process, and never received an explanation that, in his view,
provided him with enough information about the reasons for his
expulsion to allow him to properly challenge it. This action
followed. In it, Decker claims that the BOP’s failure to
provide him with an adequate explanation for his expulsion from
DRAP violated his constitutional right to due process.
Discussion
The parties seem to characterize this case in two different
ways. Respondent sees Decker’s claim as a substantive challenge
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to his expulsion from RDAP and the subsequent loss of the
opportunity to receive the § 3621(e)(2)(B) sentence reduction.
Decker frames his claim as a constitutional challenge to the
purportedly deficient process he received from the BOP when he
sought information he could use to challenge his expulsion from
RDAP. Either way the case is framed, respondent is entitled to
dismissal.
Respondent argues that Decker’s petition should be
dismissed because the court lacks jurisdiction over it. In the
alternative, he argues that even if the court has jurisdiction,
he is entitled to judgment as a matter of law on Decker’s claim.
If Decker’s claim is properly characterized as a substantive
challenge to his expulsion from RDAP, respondent’s first
argument is persuasive, and dispositive.
In Reeb v. Thomas, a federal prisoner filed a § 2241
petition “challenging the BOP’s decision to expel him from RDAP
and seeking both readmission into RDAP and a twelve-month
reduction in his sentence upon successful completion of the
program,” 636 F.3d 1224, 1226 (9th Cir. 2011). While the
district court in Reeb “concluded that federal courts have
jurisdiction to determine whether the BOP exercised its
discretion to administer RDAP properly,” id., the court of
appeals reached the opposite conclusion, holding that
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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 [and that the]
BOP’s substantive decisions to remove particular
inmates from the RDAP program are likewise not subject
to judicial review.
Id. at 1227. To the extent that Decker’s claim is that the BOP
improperly expelled him from DRAP, his claim is doomed by Reeb.
Even if Decker’s claim is properly characterized as a Fifth
Amendment procedural due process claim, he fares no better. As
the Ninth Circuit explained:
To the extent that Reeb alleges equal protection
and due process violations, these claims must
necessarily fail. . . . Reeb . . . cannot prevail on
his due process claim because inmates do not have a
protected liberty interest in either RDAP
participation or in the associated discretionary early
release benefit. See Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 7 (1979)
(determining that a prisoner does not have a
constitutional right to be released prior to the
expiration of a valid sentence); Moody v. Daggett, 429
U.S. 78, 88 n.9 (1976) (concluding that discretionary
determinations regarding conditions of confinement do
not create due process rights); Jacks [v. Crabtree],
114 F.3d [983,] 986 n.4 [(9th Cir. 1997)] (finding
that 18 U.S.C. § 3621(e)(2)(B) does not create a due
process liberty interest in a one-year sentence
reduction).
Reeb, 636 F.3d at 1228 n.4 (parallel citations omitted); see
also Pizarro Calderon v. Chavez, 327 F. Supp. 2d 131, 135
(D.P.R. 2004) (“Courts have consistently held that 18 U.S.C. §
3621(e) does not create a liberty interest subject to
constitutional protection.”) (citing Cook v. Wiley, 208 F.3d
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1314, 1322-23 (11th Cir. 2000); Rublee v. Fleming, 160 F.3d 213,
216 (5th Cir. 1998); Fristoe v. Thompson, 144 F.3d 627, 630
(10th Cir. 1998); Orr v. Hawk, 156 F.3d 651, 654 (6th Cir.
1998); McLean v. Crabtree, 173 F.3d 1176, 1184-85 (9th Cir.
1999)).
Decker attempts to save his due process claim by pointing
to BOP inmate records that noted the sentence reduction he might
have earned by successfully completing RDAP, and he analogizes
the § 3621(e)(2)(B) incentive to so-called “good time,” which,
once awarded, cannot be taken away from an inmate without a
modicum of process, see Johnson v. Warden, FCI, Berlin, N.H.,
No. 16-cv-442-LM, 2017 WL 3588751, at *1 (D.N.H. Apr. 20, 2017)
(citing Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,
454 (1985)). The problem with Decker’s argument is that the
discretionary sentence reduction described in 18 U.S.C. §
3621(e)(2)(B) is not a “signing bonus” awarded for being
admitted into RDAP; it is, by its very language, an incentive
that is available, if at all, only after successful completion
of RDAP (a precondition that Decker never satisfied). Thus,
Decker is flatly incorrect in characterizing the § 3621(e)(2)(B)
incentive as being awarded “up front,” and the BOP’s notation of
Decker’s RDAP participation in his inmate records does nothing
to change that. Accordingly, the BOP’s deletion of that
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notation after Decker was expelled from RDAP does not represent
a rescission of a § 3621(e)(2)(B) sentence reduction that he had
been awarded. In short, the possibility that Decker might earn
a § 3621(e)(2)(B) sentence reduction, which is all that was
reported in his inmate records, never ripened into an actual
sentence reduction, and even if it had, “inmates do not have a
protected liberty interest in either RDAP participation or in
the associated discretionary early release benefit.” Reeb, 636
F.3d at 1228 n.4.
Conclusion
Because this court lacks jurisdiction over Decker’s claim,
or because Decker has no constitutionally protected liberty
interest in the incentive provided by 18 U.S.C. § 3621(e)(2)(B),
respondent’s motion should be granted, and Decker’s petition
should be dismissed.
Any objection to this report and recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
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objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 28, 2017
cc: Randy L. Decker, Jr., Esq.
Seth R. Aframe, Esq.
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