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Penalosa v. Warden, FCI

United States District Court, D. Maryland

January 6, 2017

ISMAEL PENALOSA, #60167-060 Petitioner,
WARDEN, FCI, Cumberland, Responden..


          J. Frederick Motz United States District Judge.

         Before 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).[1]


         Respondent 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.


         A 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.

         When 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 record.


         Habeas 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 provides:

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).

         The 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).

         Federal regulations permit the BOP to preclude an inmate from receiving early release if that inmate has a current felony conviction for:

(i) an offense that has an element, the actual, attempted, or threatened use of physical force against the person ...

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