United States District Court, D. New Hampshire
Randy L. Decker, Jr.
FCI Berlin, Warden
L. Decker, Jr., Esq. Seth R. Aframe, Esq.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
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.
Decker was admitted into RDAP, he became eligible for a
statutory incentive to complete the program, under which
"[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.
parties seem to characterize this case in two different ways.
Respondent sees Decker's claim as a substantive challenge
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.
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
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
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.
Decker's claim is properly characterized as a Fifth
Amendment procedural due process claim, he fares no better.
As the Ninth Circuit explained:
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
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.