United States District Court, D. Maryland
Frederick Motz United States District Judge.
the court is Ismael Penalosa's ("Petitioner")
petition for writ of habeas corpus filed pursuant to 28
U.S.C. §2241, challenging a determination by the Bureau
of Prisons ("BOP") that his completion of the
Residential Drug Abuse Treatment Program ("RDAP")
did not render him eligible for early release pursuant to 18
U.S.C. § 3621. Counsel for respondent, Timothy S.
Stewart, warden at the Federal Correctional Institution in
Cumberland, Maryland ("FCI Cumberland,, by his counsel,
has filed a motion to dismiss, or in the alternative for
summary judgment. (ECF 12-1). For reasons to follow, the case
will be dismissed for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6).
presents the following uncontroverted information in support
of the motion to dismiss. On September 22, 2014, the United
States District Court for the Northern District of Ohio
sentenced petitioner to a 70-month sentence with 4 years of
supervised release for conspiracy to distribute and possess
with intent to distribute 100 kg. or more of marijuana,
" "conspiracy to distribute and possess with intent
to distribute 500 grams or more of cocaine, " and
"possession with intent to distribute 996.79 grams of
cocaine, " in violation of 21 U.S.C. SS 846, 841(a)(1)
& (b)(1)(B). ECF 1. After petitioner was designated to
FCI-Cumberland and determined eligible to participate in
RDAP, BOP staff conducted an offense review to determine
whether he would qualify for early release upon successful
completion of the program. Because petitioner had received a
two-level specific offense characteristic ("SOC")
enhancement at sentencing for possessing a dangerous weapon
pursuant to U.S.S.G. S 2D1.1(b)(1), BOP staff determined he
did not qualify for early release. ECF 12-2. Petitioner
disputes this determination. He claims the BOP improperly
found him ineligible for early release based on the
"firearm enhancement, " because he was
"neither charged with the firearm, nor was the firearm
related to the offense." ECF 1; see also ECF 4.
motion to dismiss filed pursuant to Rule 12(b)(6) tests the
sufficiency of the cause of action. See Presley v. City
of Charlottesville, 464 F.3d 480, 433 (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). Although the
court must accept as true all the factual allegations
contained in the complain,, legal conclusions drawn from
those facts are not afforded such deference. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) ("Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice" to plead a
claim.). A complaint must allege "a plausible claim for
relief." !d. at 679.
reviewing a motion to dismiss, "[t]he court may consider
documents attached to the complain,, as well as documents
attached to the motion to dismiss, if they are integral to
the complaint and their authenticity is not disputed."
Sposato v. First Mariner Bank, No. CCB-12-1569, 2013
WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI
Int'l v. St. Paul Fire & Marine Ins. Co., 566
F.3d 150, 154 (4th Cir. 2009); see also Fed.R.Civ.P.
10(c) ("A copy of a written instrument that is an
exhibit to a pleading is a part of the pleading for all
purposes."). Additionally, a federal court may take
judicial notice of documents from prior court proceedings and
other matters of public record in conjunction with a Rule
12(b)(6) motion to dismiss without converting it into a
motion for summary judgmen.. Philips v. Pitt Cnty. Mem.
Hasp., 572 F.3d 176, 180 (4th Cir. 2009) (citing
Papasan v. Main, 478 U.S. 265, 268 n. 1 (1986));
Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009);
see also Fed.R.Evid. 201 (Judicial Notice of
Adjudicative Facts). With this standard in mind, the court
will review petitioner's claims based upon the unopposed
relief is available under 28 U.S.C. §224l when a
prisoner is "in custody in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C.
§2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21
(1975). Title 18 U.S.C. §3621(b) instructs the BOP to
"make available appropriate substance abuse treatment
for each prisoner the BOP determines has a treatable
condition of substance addiction or abuse." The statute
provides for incentives for prisoners to participate in a
RDAP, including the possibility of an early release. It
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.
18 U.S.C. § 3621(e)(2)(B) (emphasis added).
language of S 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) (BOP has "the authority but not
the duty... to reduce [a prisoner's] term of
imprisonment); Pelissero v. Thompson, 170 F.3d 442,
444 (4th Cir. 1999); Zacher v. Tippy, 202 F.3d 1039,
1041 (8th Cir. 2000). The statute 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. S 550.58 (2008).
regulations permit the BOP to preclude an inmate from
receiving early release if that inmate has a current felony
(i) an offense that has an element, the actual, attempted, or
threatened use of physical force against the person ...