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Mullen v. Stewart

United States District Court, D. Maryland

March 15, 2018

RICHARD RAY MULLEN Petitioner
v.
WARDEN TIMOTHY STEWART, MANISH PATEL, MARK INCH, and MICHAEL CARVJAL Respondents

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Petitioner Richard Ray Mullen, an inmate in the custody of the Federal Bureau of Prisons (“BOP”) petitions this court for habeas corpus relief pursuant to 28 U.S.C. § 2241 (ECF Nos. 1 and 3) and Respondents move to dismiss or for summary judgment (ECF No. 6). Petitioner opposes the motion (ECF No. 8) and Respondents replied in support of their motion (ECF No. 9). The issues are fully briefed and there is no need for a hearing to determine the matters pending. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, Respondents' motion, construed as a motion for summary judgment, will be granted.

         Background

         On September 25, 2009, Mullen was sentenced to serve 210 months in federal custody for violation of 21 U.S.C. § 848(a) by the United States District Court for the Western District of New York. See United States v. Mullen, 1:04-CR-00189-001 (W.D.N.Y.). In April of 2017, a Unit Team at FCI Cumberland, Maryland, where Mullen is confined, requested a release date of October 31, 2017. ECF No. 1 at p. 6. Mullen was later approved for a release date of November 8, 2017. Id.

         On October 4, 2017, Mullen was informed that his release date was changed to June 28, 2018. ECF No. 1 at p. 6. Mullen claims he was told the reason for the change was “budget cuts.” Id. at p. 7. Mullen states his case manager told him he did not know what was really going on and in response to Mullen's request to be transferred elsewhere, expressed that a transfer was not an option. Id.

         On October 6, 2017, Mullen filed a “BP-08” appealing the decision to change his release date and stating that he wanted “his halfway house to be re-reviewed” (sic) and for the release date to be changed back to November 8, 2017. Id. The Unit Team's response to the BP-08 was that on “October 3, 2017, the Raleigh Residential Reentry Management Office adjusted your placement date to June 28, 2018.” Id.

         On October 13, 2017, Mullen filed a “BP-09 Request for Administrative Remedy” with the Warden at FCI Cumberland. Mullen claimed that the Unit Team and the Reentry Management Office had improperly reduced the time he would be in the Reentry program by eight months, giving him only four months of placement in a halfway house. ECF No. 1 at p. 7. As relief Mullen stated he wanted “to be given back the one (1) year by finding [him] the alternative placement that will ensure [he] received the maximum amount of one yr, in compliance with both the law and policy.” Id. At the time Mullen filed his petition with this court he had not received a response from the Warden. Id.

         Mullen adds, by way of background, that he was enrolled in the Residential Drug Abuse Program (RDAP) in January of 2015 and successfully completed the program ten months later. He adds that for the past two years he has been a mentor in the RDAP and has taught a job skill class as well as a “foot prints” class and a class on relapse prevention. ECF No. 1 at p. 7. Mullen states he has been incarcerated for more than 13 years and has maintained a job, completed vocational and educational programs, and never received any violation or incident reports during that time. Id. As relief, Mullen requests reinstatement of the November 8, 2017 release date; an Order requiring his designation to an alternative placement in a Federal Halfway House; and release to home confinement on April 30, 2018. ECF No. 1 at p. 8.

         In his amended petition, filed on November 27, 2017, Mullen addresses exhaustion of administrative remedies[1] and avers that although he began the process when the original petition was filed, the Warden had not yet responded. ECF No. 3 at p. 4. He claims that requiring him to exhaust administrative remedies would be futile because the “BOP and/or General Counsel would in fact be unlikely to find that [its] employees ha[ve] acted in [a] manner contrary to its policy when making the decision to reduce the approved RRC[2] placement of 12 months by eight (8) months to four (4) month[s] of halfway house without providing any cause for said reduction.” Id. at p. 5. He further claims that requiring full exhaustion would result in the claim asserted in the petition becoming moot by the time of his release date of June 28, 2018. Id. at p. 6. Mullen requests that the court find “exceptional circumstance” present in this case due to the urgency involved and excuse his failure to exhaust administrative remedies. Id.

         Additional facts provided by Respondents indicate that Mullen's statutory release date is October 30, 2019. ECF No. 6-3 at p. 3 ¶4. Because Mullen successfully completed the RDAP on October 26, 2015, he is eligible for discretionary early release under 18 U.S.C. § 3621(e). Id. at p. 4, ¶5. The statutory provision allows for a BOP inmate's sentence to be reduced after the successful completion of a treatment program with the limitation that the “reduction may not be more than one year from the term the prisoner must otherwise serve.” 18 U.S.C. § 3621(e). Application of the provision to Mullen's term of confinement renders a conditional release date of October 30, 2018. ECF No. 6-3 at p. 4, ¶ 5.

         As an inmate's projected release date draws near, BOP staff make recommendations for RRC placement based on assessments of the inmate's needs for services as well as public safety concerns, and the BOP's need to manage inmate population. Id. at ¶6, see also Program Statement (“PS”) 7310.04 at https://www.bop.gov/policy/progstat/7310004.pdf. Unit Manager David Holler, who works at FCI Cumberland, explains in his declaration under oath that:

Prior to the enactment of the Second Chance Act[3] in 2007, release preparation plans, including decisions regarding RRC referrals, were ordinarily established eleven (11) to thirteen (13) months prior to an inmate's projected release date. At that time, such placement was limited to the last ten percent (10%) of an inmate's sentence, not to exceed six (6) months. When the Second Chance Act went into effect in April 2008, however, it modified 18 U.S.C. §3624(c), eliminating the ten percent (10%) limitation language, and extending the maximum potential CCC/RRC placement to twelve (12) months. Due to the increase in maximum potential placement time, the time frame for reviewing and making RRC placement referrals increased by six (6) months as well. Thus, referrals and recommendations for RRC placement are now ordinarily made when there are seventeen (17) to nineteen (19) months remaining on an inmate's sentence.

ECF No. 6-3 at p. 4, ¶6.

         Five factors, listed in 18 U.S.C. § 3621(b) are considered by the Unit Team when an inmate is considered for RRC placement. Id. at ¶ 7. Those factors are: (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence; and (5) any pertinent policy statement by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2). 18 U.S.C. § 3621(b).

         When an inmate is referred for RRC placement, the unit team is required to provide proof of a valid release plan that has been approved by the United States Probation Office (USPO) in the district where the post-release supervision is to occur. ECF No. 6-3 at p. 5, ¶8. If an inmate wants to live in a judicial district other than the one where he or she was convicted and sentenced, a relocation request must be submitted to the team by the inmate. Id. The relocation request is then submitted to the USPO in the district where the inmate wants to reside for processing and approval. Id. The USPO makes a determination whether the inmate would likely be successful in reintegrating into society in the district requested through consideration of factors such as the proposed release residence, ties to that community, job prospects, and treatment resources. Id.

         Mullen was convicted and sentenced in the Western District of New York; absent a request for a transfer to a different judicial district, Mullen's post-release supervision must be in that district. ECF No. 6-3 at p.6, ¶9; pp. 10 -12 (Attachment A). On January 20, 2017, Mullen requested a post-release relocation to the Northern District of Georgia with plans to reside with a cousin. ECF No. 6-3 at p.6, ¶9; p. 17 (Attachment C). The request was ...


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