GEORGE L. RUSSELL, III, District Judge.
On January 25, 2013, this counseled 28 U.S.C. § 2241 Petition for writ of habeas corpus was filed on behalf of Nicola Melia ("Melia"), an 81-year old U.S. Bureau of Prisons' ("BOP") inmate housed at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"). ECF No. 1. Melia claims that he sought and was denied admission to the Residential Drug Abuse Program ("RDAP") established by BOP, thus denying him early release from his confinement. He contends that he was erroneously deemed ineligible for the RDAP because of his underlying criminal offense under 28 C.F.R. § 550.55(b)(5)(ii) and (iii). In sum, he contends that his offense was not a "crime of violence" so as to render him ineligible for early release.
Respondent has filed a Court-Ordered show cause response and Motion to Dismiss, which remains unopposed. ECF No. 3. A hearing on the Motion is unnecessary. See Local Rule 105.6. (D. Md. 2011). For reasons to follow, Respondent's Motion shall be granted and the Petition shall be denied and dismissed without prejudice.
Standard of Review
The purpose of a motion to dismiss filed pursuant to Rule 12(b)(6) is to test the sufficiency of the cause of action. See Presley v. City of Charlottesville , 464 F.3d 480, 483 (4th Cir. 2006). A movant need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 n.3, (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted).
At this stage, the Court must consider all well-pleaded allegations as true, Albright v. Oliver , 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the Petitioner. See Harrison v. Westinghouse Savannah River Co. , 176 F.3d 776, 783 (4th Cir. 1999) (citing) Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the Petition, the Court need not accept unsupported legal allegations. See Revene v. Charles Cnty. Comm'rs. , 882 F.2d 870, 873 (4th Cir. 1989). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not show[n]... that the pleader is entitled to relief.'" Iqbal , 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, "[d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id . With this standard in mind, the Court will review Petitioner's claims based upon the unopposed record.
Title 18 U.S.C. § 3621(b) requires the BOP to "make available appropriate substance abuse treatment for each prisoner the BOP determines has a treatable condition of substance addiction or abuse." It added a section providing for incentives for prisoners to participate in such a RDAP, including the possibility of an early release. Subsection 3621(e)(2)(B) provides that:
The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a [drug] 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.
In implementing this provision, the BOP initially adopted the statutory definition of "crime of violence" found under 18 U.S.C. § 924(c)(3). Subsection 3621(e)(2)(B) was codified under 28 C.F.R.§ 550.58. Section 550.58 specified three prerequisites for early release eligibility: the inmate must have been sentenced to a term of imprisonment for a nonviolent offense; must have a substance abuse problem; and must successfully complete a residential drug abuse treatment program while incarcerated.
While 18 U.S.C. § 3621 provides for a reduction of custodial time for non-violent offenders, the language of § 3621(e)(2) is permissive, stating that the BOP may grant inmates early release. It does not guarantee eligible inmates early release. See Lopez v. Davis , 531 U.S. 230, 241 (2001); Zacher v. Tippy , 202 F.3d 1039, 1041 (8th Cir. 2000). Section 3621 vests the BOP with discretionary authority to determine when an inmate's sentence may be reduced. Thus, the BOP in its discretionary authority established criteria for determining early release eligibility. See 28 C.F.R. § 550.58 (2008).
On January 14, 2009, the BOP published its proposed new rule through the notice and comment procedures. On March 16, 2009, this new version was adopted by the BOP. This new version, codified at 28 C.F.R. § 550.55, is essentially identical to the former version codified at 28 C.F.R. § 550.58, but provides a detailed rationale for why offenders were not entitled to early release consideration.
Petitioner challenges the denial of his eligibility for benefits from the RDAP program. Respondent presents the following uncontroverted ...